ii^i^ HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench Coram: - Hon'ble Shri T. P. Sharma & Hon'ble Shri IVIanindra IVIohan Shrivastava, JJ. Crimjnal Appeal No.161 of200S Applicant Bahorik Yadav, S/o Pardeshi Yadav, Aged About 25 (In Jail) years, Resident of Piraiya, P,S. Chakarbhata, Dlstrict Bilaspur (C.G.) Versus State of Chhattisgarh, through the District iVlagistrate, Bilaspur, District Bilaspur (C.G.) Resoondent (Appeal under Section 374(2) ofthe Code of CrimJnaS Procedure) Present: - Shri Shrawan Chandel,counsel for theappeilant. Shri Arun Sao, Govt. Advocate for the State. JUDGMENT (ORAL) (Delivered on this 3rd day of December, 2010) Following order of the Court was passed by T. P. Sharma. J. 1. Challenge in this appeal is to the judgment of convictJon & order of sentence dated 28-12-2004 passed by the 5 Additionai Sessions Judgo, Bilaspur in Sessions Trial No.289 of 2004, ^rfiereby & whereunder Searned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Pappu @ Manharan, convlcted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without considering the nght of private defence of the appeliant as a!so without considering the omission and contradiction in the testimony of prosecution witnesses, the Court be!ow has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful date of 08-07-2004 in the morning at about 07.15 A,M., the deceased-Pappu was coming from Sarseni Village, after coltecting milk on cycte, on account of anno^nce on the basis of illicit relation between the deceased-Pappu and his wife, the appellant was waiting the deceased nearby river and he was holding the sttek. While the deceased was passing though the river, the appeilant chased the deceased and assaulted him by stick till his death. Sanee], P.W.2, Sunil, P.VW.3, Azad Singh. P.W.6 and Dayaram, P.W.7 were present near the ptace of incident and ai! of them have seen the incident. Information regarding the incident was given by Neelkanth Yadav to the Police Station Chakarbhata and Roznamchasana was recorded on the same day \^de Ex.P-12. Har Prasad, P.W.5, father of the deceased has lodged Dehati Merg Intimation vide Ex.P-6 against the unknown persons. After summoning the witnesses vide Ex.P-1, inquest of the dead body of the deceased was prepared wde Ex.P-2, one cycle, milk container filied with 10 liter miik and wrist watch ofthe deceased found near the place ofthe Incident and seized vide Ex.P-7. On the basis of F.1.R. lodged on 08-07-2004 vide Ex.P- 10, Merg Intimation was also recorded vide Ex.P-11. Dead body was sent for autopsy in the Government Hospital, Chakarbhata vide Ex.P-13. Dr. C. S. Dhruw, P.W.13, conducted the autopsy vide Ex.P-22, who found following injuries:- (1) Lacerated wound over the right parietaj region size 4x1xbone deep (Inches). (2) Lacerated wound near the leflt parietal region, size 3x1 x bone deep (Inches). (3) Lacerated wound over the occipital bone of size 2Vzx % x bone deep. (4) Contusion in front ofthe neck size 4x3 cm. |^|tg^|g;^gg|y^^ljj^^ (5) Multiple contusions over left thigh and testis. (6) Fracture of left forearm along with scratches. After conducting autopsy of the dead body of the deceased, Dr. C, S. Dhruw, P.W.13 opined that cause of death was due to excessive hemorrhage and shock and death was homicidal in nature. During the course of JnvestJgatlon, the appellant was taken into custody, he made disclosure statement of stlck vide Ex.P-3 and same was recovered at the instance of the appeilant vlde Ex.P-4. Cycle, a milk container containing 10 liters of milk and wrist watch of the deceased were seized from the spot vide Ex.P-7. The appetlant was arrested vide Ex.P-8. Blood stained soil, plain soil, clothes of kids and Lungi were seized from the spot vide Ex.P-15. Blood stained clothes ofthe appellant were seized from the appellant \flde Ex.P-16. Patwari prepared spot map vide Ex.P-9. Investigating Officer prepared spot map vide Ex.P-20. Sealed ctothes of the deceased were sejzed vide Ex.P-17; 4. Statement of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigatiori; charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions Judge, Bilaspur where the trial was conducted. 5. In orderto prove the guilt ofthe appellant, the prosecution has examJned as many as thirteen witnesses. The accused was examined under Section 313 of the Cr.P.C., in which, he denied the circumstances appearing against him and he has taken right of private defence by stating that he came back to his house froni the river, at that point of time, the deceased-Pappu was commjtting sexual intercourse with his wife and after seeing the appellant, he fled away. The appeilant has also examined defence witness-Pardeshi, i.e. Father of the appellant, who has deposed in his evidence that on 08-07-2004, the appeilant :-./<-"^f y'y^ iI • ""€®^ "^. 'I^^' :^SiiSi^iSiiiS1i3ifii^!iSii^Si^Si^^ ^ informed him that deceased was found naked in his house and was committing sexual intercourse wjth his wife and in his cross-examination, he has also admitted that when the appellant narrated the incident, he was in the house. After sometime, he heard that the appellant has committed the murder of the deceased-Pappu. 6. After affording opportunity of hearing to the parties, leamed Additiona! Sessions Judge convicted & sentenced the appellant in the aforesaJd manner, 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued that in the present case, when the deceased v/as committing sexual intercourse with the wife ofthe appellant, at the point of time, the appellant was not present there. When the appellant reached the house, he saw the deceased in his house, v^iio was committing sexual intercourse with his wife and then fled away from the spot, The ^ei^r^ appellant chased the deceased but he ran away'by cycie, and thereafter, he forther chased and on sudden provocation, the appeliant has caused homicidat death of the deceased. Learned counse) for the appellant further argued that when he saw the deceased, who was committing sexua! intercourse with the wife of the appellant, the appellant has used force and in exercise of right of private defence, he has caused homicidal death of the deceased, by which, he has not committed illegality. Learned counsel for the appellant further argued that the evidence of Saneej, P.W.2, Sunjl, P.W.3, Azad Singh, P.W.6 and Dayaram. P.W.7 does not inspire confidence and trustworthy, in which, Saneej, P.W.2, Sunil, P.W.3, Azad Singh, P.W.6 are child/tutored witnesses, hence, their ewdence are not reliable. •lr ^^•^-^ '<sftlfe. ^N^ 9. On the other hand, learned State counsel opposed the appeal and subm'rtted that the evjdence of Saneej, P.W.2, Sunil, P.W.3, Azad SJngh, P W.6 and Dayaram, P.WJ are sufficient for drawing an inference that the appeJSant has caused fatal injury to the deceased-Pappu resulted in his death. Learned State counsel lurther argued that the appeltant has not examined any witness respect of his claim of right of private defence. Learned State counsel further argued that the appellant has admitted the fact that he has caused homicidai death ofthe deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe parties. 11. In the present case, homicidal death of the deceased as a result of ante mortem fatal injuries has not been substantially disputed by the appeifant, otherwise also established by the evidence of Dr.C. S. Dhruw, P.W.13, Assistant Surgeon, Primary Health Centre, Chakarbhata and autopsy report, Ex.P-22^ yv^^B'^'Ct^^-'v*^-*-.^i 12. As regards complicity of the appeltant in crime in question, conviction is substanth/ely based on the evidence of Saneej, P.W.2, Sunil, P.W.3, Azad Singh, P.W.6, who are child witnesses and Dayaram, P.W.7. White examinlng child witn^sses, the Court is required to satisfy itself that whether the child witness understands the duty to speak truth and able to answer the questions put to him/her rationally. In the present case, before examining the child witnesses i.e. Saneej, P.W.2, Sunil, P.W.3, Azad Singh, P.W.6, the triai Court has asked questions and after satislying itself that the child witnesses understand the duty to speak truth and are able to answer the questions put to them rationa!iy, has examined them. Saneej, P.W.2 has categoricatly deposed in his evidence that the appellant has caused injury to deceased-Pappu by stick and also threatened him. Sunil, P.W.3 and Azad Singh, P.W.6 have substantiatiy corroborated the 6 -^ ^N^1 evidence of Saneej, P.W.2. In para 7 of his cross-examination, Azad Singh, P.W.6 has admitted that prior to recording their evidence all the three chitd witnesses met the counsel and the counset told them as to what they are required to depose before the Court. Oayaram, P.W.7 has deposed that the appellant was chasing Pappu and assauftjng him continuously by stick, the deceased tried to resist but the appellant was continuously making assaujt upon the deceased and thereafter he went to his house. In his detailed cross- examinatibn, Dayaram, P.W.7 has specifically deposed that he has seen the incident. Although. there is some discrepancy in the evidence of Saneej, P.W.2, Sunil, P.W.3 and Azad Singh, P.W.6, but the evidence of these witnesses has been well corroborated by the evidence of Dayaram, P.WJ, Evidence of Dayaram, P.W.7 inspires confidence, trustworthy and safe to rely. Evidence of the aforesaid eye-witnesses is sufficient for drawing inference that the appe!iant has chased and caused injuries to the deceased-Pappu resulting in his homjcida! death. 13. As regards, the question of motive is concerned, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the nature of injury, part of the body injured, weapon used and the manner of inflicting the injury. The aforesaid facts and circumstances are sufficient for drawing inference. 14. As per defence version, the deceased was committing sexuat intercourse with the wife of the appellant in the house of the appellant and when the appellant came from pond and saw such act. he got annoyed and lost his tamper. The deceased fled away from the spot whom the appeiiant chased, but the deceased ran away by cycle, however, the appejlant chased and caused .--^- •.-:<•,• €.^' ^ I. injuries to the deceased resulting in his death. As per seizure memo, Ex.P-7, cycle, milk container fiited with 10 liters of milk and wrist watch of the deceased have been seized from the spot which shows that the deceased was having cycle and 10 I'rters of milk. This also shows that either the deceased was coming to his village after collecting mitk or was going for selting mifk which excludes the possibiiity of his presence in the house of the appeiiant just before the incJdent- This further supports case of the prosecution that the appellant has chasecj the deceased and caused repeated injuries resulting in his death. The appeliant has not caused any injury to the deceased just after the incident of commission of sexual intercourse by the deceased with the wife of the appellant. Nature of injuries and the passion in which the appetlant has caused injuries to the deceased show that the appellant has caused injuries to the deceased with intent to cause his death. 15. After appreciating the evidence available on record, the Additiona! Sessions Judge, Bilaspur has convicted theappellant under Section 302 ofthe i.P.C. and sentenced him to undergo imprisonment for life. On close scrutiny of evidence, we do not find any illegality or infirmity in conviotion and sentence of the appellant. 16. The appeal is devoid of merit, same is liable to be dismlssed and it Is hereby dismissed. Tumane Sd/- T.P. Sharma Judge Sd/- Manindra Mohan Shrivastava Judge