HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R. L. JHANWAR, JJ. CR. APPEAL NO. 330/2003 APPELLANT/ACCUSED Pradeep Kuniar Bhagat, Aged (IN JAIL) about 18 y€ars, S/o Jogendra Ram Bhagat, R/o Village — Bhelwatoli, RS. Narayanpur, Distt. Jashpur (C.G.) RESPONDENT State of Chhattisgarh Through : RS. Narayanpur, District Jashpur (C G ) CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:— Mr. Roop Naik, Advocate for the appellant. Mr. Rakesh Jha, Dy. GA. for the State/respondent. VERSUS ORAL-JUDGEMENT (Passed on 29/01/2010) The following judgnent of the Court was passed bV TSP. Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22/01/2003 passed by Second Additional Sessions Judge (Fast Track Court), Jashpur in Sessions Trial No. 164/2002 whereby and Where under after holding the appellant guilty for the commission of the culpable homicide amounting to murder of Mangdali Bai convicted the appellant under Q ‘ Section 802 of the Indian Penal Code and sentenced imprisonment for life and flne of Rs. 500/-, in default of ,Mpayment of fine amount additional 5 months simple imprisonment. 2. Judgment is impugned on the ground that Without any iota of evidence against the appellant Court below has convicted and sentenced the appellant aforementioned \r and thereby committed an illegality. 3. The brief case of the prosecution is that, on fateful day of 31/5/02 at about 12 at noon deceased Mangdali Bai was going to her house along with Shanti Bai, Hiramani & Godobai at Melawatoli District Narayanpur the appellant came With axe he stopped Mangdali Bai (since deceased) and assaulted over her head by blunt part of the axe thiicely. BlOod came out, then Mangdali Bai went to her house Lakhu and Vgay snatched the axe from the appellant Mangdali Bai informed the meldent to PW5 Viliam. She become unconscious in her house. PWI. Beneram went to the police station and lodged the First Information Report vide Ex. .P—l. Injured was sent for treatment to Holicrass Hospital Kunkuri, during course of treatment she died on 1/6/02 at 12.30 p.m. Marg was intimated to Police Station Kunkuri vide Ex. P-19 who recorded marg vide Ex. P—9. After summoning the \ witnesses inquest over the dead body of deceased ’\_ Mangdali Bai was prepared vide Ex. P-8. Dead body was ~sent for autopsy to Primary Health Center, Kunkuri Vide Ex. P—15A. Autopsy was conducted by PW7 S. Toppo Vide Ex. P—15 and found following injuries:- (1)—One lacerated wound over occipital part of the head of 1\ l/z " x 1 om. X 0‘5 'c.m. (2) One lacerated wound over middle occipital region of 1 1/2 " x 1 c.mi X 0.5 c.1n. (3) One lacerated wound over right partial region of 1 1/2 ” x 1 c.m. x 0.5 c.m‘ (4) Fracture of parietal bone and haematoma below the scalp was found. Cause of death was'shock as a result ofhead injury and death was homicidal in nature: \ 4. Blood stained Sari of the deceased, blood stained and plain soil were recovered vide Ex. P—2 from the spot. One blood stained axe which was taken from the appellant by witness Lakhuram was seized from the Lakhuram vide Ex. P—3. Spot map was prepared vide Ex. P—4. During course of treatment deceased was also examined by PW7 Dr. S. Toppo vide Ex. P—13 and found 3 aforesaid injuries as described in autopsy report. Axe was sent for examination to PW7 Dr. S. Toppo, presence of blood over the blunt part of the axe was noticed vide Ex. P- 14A. Sealed packet after autopsy of the deceased was seized vide Ex. P— 1’7. Police Station Narayanpur recorded registered marg vide EX. P— 18A. Seized articles were sent for chemical examination $ Vide Ex. P~ 15. \ Statement of the Wltnesses were recorded under Sechon 161 of the Code of Cnmmal Procedure 1973 (1n short fthe Sessions, Jashpur; Learned Second Additional Sessions Judge received the case on transfer for trial. were examlned under Sectmn 313 of the Code Where he demed the cwcumstances appearmg agamst hun Innocency and false lmphcatlon ls clalmed After affordmg an opportunity of hearing to the parties learned Additional Sessions Judge convicted and sentenced the appellant aforementioned. Learned Counsel for the parties are heard Judgment impugned and record of court below perused. ’ Learned counsel for the appellant vehemently argued that appellant has not inflected any injury to the deceased he was not havmg any enmity or cause for causmg such Injury The ev1dence of prosecution Witnesses are not rellable and not safe to base conviction. Injury found over the head of the deceased was caused by blunt part of the axe consisting one n‘acture shows that injury was not caused with intent to conrmit murder of the deceased. The ‘ present appellant is in custody since 1/6/02 and has completed more than 7 1/2 years custodial pem‘od of the appellant is sufflcient sentence for commission of homicidal death not amounting to murder. 10. Learned counsel for the appellant placed reliance in the matter of Kesar Siggh and Another v. State gf Haryanal in which Apex Court has held that in case of death after few days of the single injury caused by blunt part of the Kassi (Spade) over the head the conviction under Section 304 Part—I of the Indian Penal Code was found proper. On’ the other hand,. learned counsel for the respondent/State opposed the appeal and submits that persecution Witnesses have proved the commission of murder by the appellant. Their evidence inspire confidence the case is based on dying declaration made by the deceased immediately to the witnesses. Witness Lakhuram Vijay have snatched the axe from the accused these evidence are suhicient for conviction of the appellant. I In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 13. In the present case homicidal death as a result of ante— mortem‘fatal injury has not been substantially disputed 11. ‘ (2008; 15 sac 753 é, by the appellant on the other hand also established by the evidence of PW7 S. Toppo, injury report P— 13, autopsy report P—15 which reveal that 3~ injures over head including fracture of partial bone and internal haematoma of the head. Death was homicide in nature. t 14. As regard the complicity of the appellant in crime in question is concerned the conviction of the appellant is based on dying declaration made by the deceased just after commission of the oiTence. PWI Beneram who was lodged the report has deposed that on 31/5/02 in day time he was sleeping and the injured Mangdali Bai since deceased was telling to Paskal that appellant Pradeep assaulted her he immediately came out from his house, injured Mangdali Bai was standing before his house with Paskal then he went to inform PW5 Viliam where Martin was also present. Mangdali Bai also came there and informed them that appellant Pradeep has assaulted her they saw the injury over her head Mangdali Bai also told them that accused has assaulted her by axe then he went ‘ to the police station and lodged the report Ex. P—l. Cloths of Mangdali were seized vide Ex. P-2. Axe was seized h‘om the Lakhuram vide Ex. P—3. Map was prepared vide Ext P- 4. Accused was arrested vide Ex. P-5. PW3 Paskalram has deposed‘in his evidence that after incident Mangdali Bai was going to house of Samanch She was injured and m blood was coming from her head but she did not say how she received injury. Prosecution has declared this witness hostile. The appellant is a grand son of this witness. PWS Viliam has deposed in his evidence that at about 12 at noon he was present in his house Martin, Lakhu and Vijay \ came to his house and they told him that appellant has assaulted Mangdali Bai by axe and they have snatched the axe.’ PWI Beneram also came and informed him at the same time Mangdali Bai also came told that. appellant has assaulted her by axe over her head. After some time Mangdali Bai become unconscious. They went to police station‘for lodging the report and they took the Mangdali Bai to Hospital at. Kunkuni where she died then they intimated marg Vide EX. P-9. PW2 Lakhuram from whom axe has been seized he has not supported the case of the prosecution, prosecution has declared him hostile. In his cross examination this witness has not supported the case of the prosecution but he has admitted the death of Mangdali Bai. PW13 Pravin Chandra Rai 81s PW15 ‘ l Maheshwar Singh, Station Incharge have supported the investigation. 15. Defence has cross examined PWI Beneram at length but in his detail cross examination defence has not been able to illicit anything in his cross examination to discredit his testimony in his detail cross examination he has speciflcally stated that Mangdali Bai has made dying declaration to them just after the commission of the incident, while she was going to the house of the Viliam after commission of the incident. PWS Viliam has also stated same thing in his detail cross examination and stated in Para—8 of his cross examination that they also took the appellant to the Police Station, Narayanpur and they took Mangdali Bai to Hospital. PWI Beneram has lodged the First Information Report on 31/5/02 (same ' day) at 5.30 p.m. the distance of the place of incident from Police Station is 12 kmsi (according to the FIR Ex. P— 1). Accused was anested vide EX. P-5 atharayanpur it also supports the evidence of PW5 Viliam that they also took the appellant to the Police Station. Dying declaration is hearsay evidence and is exception to normal rule of evidence the Principle of dying declaration is based on {imemo morjturus proesumitur mentin‘” a dying person would not normally tell a lie. While dealing with the question of evidencary value of dying declaration in case of State of U.P. v. Ram Sagr Yadav? Apex Court has held that if the Court is satisfled that the dying declaration is true and voluntary it can base conviction on it, Without corroboration before placing any reliance on the dying declaration as held in case of 2 AR 1985 SC416 Ramachandra Reddu v. Public Prosecutora. by the Apex Court that the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identity the assailants and was in a iit State to make the declaration. The evidence of PWI .Beneram 8L PW5 Viliam satisiied the aforesaid test, reveal that deceased has made voluntary dying declaration before them in fit condition of mind and thereafter she went to the house then become unconscious. It further reveal that deceased Mangdali Bai has made true statement of injury caused to her by the appellant who finally resulted into her death. The evidence of PWI Beneram and PWS Viliam inspire confidence, trustworthy and safe to rely. Appellant was a person who has caused fatal injury over the head of the deceased. The First Information Report clearly reveals that accused has assaulted her by blunt part of the axe thrice and three injuries including single h‘acture was found over the head of the deceased. l As regard the question of motive is concerned the motive is only aid in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of z‘AIR l9?6 SC 1994 the nature of injuly, part of the body injured, weapon used and the manner of inflicting the injury. 19. In case of Kesar Singh and another (suprg) on the basis of one injury over the head by blunt part Kassi (Spade) death of the deceased after some day conviction under Section 304 Part-1 was found proper. 20. In the present case admittedly appellant was having sufficient opportunity to kill the deceased by sharp part of the axe and even by one stroke_ it has used blunt part of the axe twice including one fracture shows that he has not caused fatal injury with intent to cause her murder but by causing injury over the head of the deceased even by blunt part of the axe he was having knowledge that by his act he may cause the death of the deceased. The act of appellant does not fall within the ambits of under Section 302 of the Indian Penal Code but squarely falls within the scope of under Section 304 Part-I of the Indian Penal Code. 21. After appreciating the evidence available on record learned Second Additional Sessions Judge has convicted and sentenced the appellant aforementioned but has not considered the fact that having ample opportunity of causing injury by sharp part of the axe, appellant has finally caused the injury by blunt part of the axe and thereby committed an illegality > K%:Z ,17 A.» > um For the foregoing reason, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section304 Part~ 1 of the Indian Penal Code and considering the circumstances, number of injuries appellant has convicted rigorous imprisonment for 10 years and fine of Rs. 500/- in default of payment of nne additional imprisonment for 5 months. %‘~\~c r’ x A V a , Sd/- T‘P' Sig/WA ‘ R-L-JhanWar judge ‘ xii?