HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma& Hon'ble ShriR.N. Chandrakar, JJ. Criminal Appeal No. 541 of2005 Appellant SamnatlrfiSSlwa, slo. Vir Singh (injail) Halwa, residentof Katenar, P.S. Darbha, District Bastar. Vs. Respondent State of Chhattisgarh. (Criminal Appeal under Section 374(2) of the Code of Criminal Procedure) Present: Shri D.R. Sharma, Sr. counsel with Shri B.D. Badagaiyan, counsel for the appellant. Shri Sandeep Yadav D.eputy Govt. Advocate for the State ORAL JUDGMENT (26-11-2010) Per Rangnath Chandrakar, J. 1. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 9-5-2005 passed in Sessions Trial Case No. 18 of 2005, whereby learned Sessions Judge, Bastar at Jagdalpur, has convicted the appellant under Sections 302 ;of the Indian Penal Code and sentenced him to undergo imprisonment for life, for causing homicidal deathof Balram. 2. Conviction of the appellant is impugned on the ground that without any iota of evidence the court below has convicted and sentenced the appellant and thereby committed illegality 3. The case ofthe prosecution as projected in the FIR is that on 31-10- 2004 at about 7.p.m.., Shanti Bai, wife of the accused/appellant - Samnath came to the house of Balram and told him that the appellant-Samnath was beating her. She requested Balaram to intervene the matter and make the appellant to understand. Thereafter, Balram and his wife went to the house of Samnath to make him understand, whereupon, the accused/appellant being annoyed picked up aknife to assault him. However, Balram could save himself and returned to his house along with his wife. Thereafter, he slept in verandah. At about 1.0' clock when Lakhiram (PW/2) came to the house of his father after watching TV in the house of his elder brother Shankar (PW/1), he saw that the accused/appellant - Samnath was assaulting his father Balram by axe. Seeing the incident, he made outcry for help.hearing the same his brother Shankar (PW/1) rushed to the place of occurrence and saw the accused/appellant Samnath fleeing away from the spot. Thereafter, they saw their father in injured condition, at that time axe was embedded in the left side of the head of his father and blood was coming out fromthehead. His father died on the spot. Shankar (PW/1) intimated about the incident to Kotwar Kamlu and others. 4. Report of theincident was lodged against the appellant by Shankar (PW/1), son of the deceased at Police Station Darbha on the basis of which first information report (Ex.P/1) and morgue intimation (Ex.P/2) were registered. After performing inquest over the person of the deceased iri presence of the witnesses (Ex.P/3) body was sent for autopsy to Primary Health Centre, Darbha where Dr. A.K. 8. Jena (PW/6) conducted post-mortem and gave his report vide Ex.P/17. Memorandum statement of appellant Samnath was recorded vide Ex.P/9. Spot map was prepared by Arjun Singh, Sub Inspector (PW/5) Police Station Darbha vide Ex.P/5. Blood smeared soil and plain soil wereseized from the placeof occurrence vide Ex.P/8. After completing the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Jagdalpur, who in turn committed the case to the Court of Sessions Judge for trial. Learned Sessions Judge framed charge under Section 302 of the Indian Penal Code against the appellant who abjured his guilt. In order to bring home the guilt against the appellant, prosecution has examined 6 witnesses in all. Thereafter, the statement of the accused person was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. He examined Shanti Bai (DW/1) in his defence. The trial Court after hearing counsel for the respective parties convicted and sentenced the appellant as mentioned in paragraph one of the judgment. Homicidal death of deceased Balram is not in dispute. Even otherwise, from the evidence of eye-witnesses Shank&r (PW/1), and Lakhiram (PW/2) who claimedto have witnessed the incident and also considering the evidence of Dr. A.K. Jena (PW/6) who conducted and proved postmortem (Ex.P/17) in which he found the following injury over the person of the deceased and opined that the :>^// injury was caused by axe on the head of the deceased as a result of which he died due to shock and hemorrhage and the same is homicidal in nature, homicidal death of Balram is established. EXTERNAL INJURIES (i) One Tangia found embedded on leftside of head. It was removed with force. The would examined. It was an incised wound on left side in front of left ear, extending to front and upwards measuring 6.5 cm x 3 x 5.5 cm. (ii) On dissection - skin and subcutaneous tissue below the injury found cut. Bone was also cut extending to membrane and brain matter. Cut margin at all found congested. Dried and clotted blood found inside wound. Fluid and clotted blood also found above membrane and inside brain matter. Cut margin at bone below showed congestion. 10. Shri D.R. Sharma, learned Sr. counsel with Shri B.D. Badagaiyan, learned counsel appearing for the appellant submits that the prosecution has failed to attribute any motive to the appellant for commission of the offence. The appellanf was addicted to alcohol as such he was out-cast. Weapon of offence was not seized from the appellant and there is no serologist report. Thus, the evidence on record does not warrant convicfion. 11. Percontra, Shri Sandeep Yadav, Deputy, Government Advocate, appearing on behalf of the State supporting the impugned judgment submits that the trial Court affer considering all the aspects of the case has rightly convicted and sentenced the accused/appellant. 12. We have heard learned counsel for the parties and perused the record of the trial couri: as the impugned judgment. 13. Conviction of the appellant is mainly based on the evidence of eye- witnesses Shankar (PW/1) and Lakhiram (PW/2). 14. Shankar (PW/1) has lodged first information report (Ex.P/1) naming the appellant as perpetrator of the offence. He has deposed that on the date and time of incident his father Balram was sleeping in the verandah for watching paddy crop. His younger brother Lakhiram (PW/2) after watohing TV in his house went to sleep in the house where his father Balram was sleeping. When he reached there, seeing the incident he made outcry. On hearing the same, he rushed to the place of occurrence and saw the accused/appellant Samnath fleeing away from the spot after assaulting hisfather by axe. He saw his father lying dead and axe was embedded in the left side of the head of his father and the injury was bleeding. Thereafter, he reported the matter to Kotwar and lodged the FIR in Police Station Darbha. 15. Lakhiram (PW/2) has deposed that on the date and time of incident his father was sleeping in verandah of his house and when he returned to his house after watching TV in the house of his brother Shankar (PW/1), he saw that the accused/appellant was assaylting his father Balram by axe and seeing him the accused/appellant stari:ed fleeing away from the spot. He made outcry for help upon which his brother Shankar (PW/1) rushed to the spot who also saw the accused/appellant fleeingaway from the spot and his father Balram was lying dead. The evidence of this witness is duly corroborated by the evidence of PW/1 Shankar. 16. PW/3 Kamlu has also supported the evidence of the above two witnesses, who has categorically stated that on receiving the information about the incident he rushed to the place of occurrence and saw that Balram was lying dead in the verandah. He further deposed that he saw the axe embedded in the left side of head of fhe deceased. At fhat time, he heard from the family members ofthe deceased that accused/appellant Samnath murdered Balram and fled away from the spot. They tried to search out the accused/appellant but they could not succeed. Thereafter, he along with Shankar (PW/1) went to Police Station Darbha to lodge the FIR (Ex.P/1). 17. Arjun Singh (PW/5), Sub Inspector, Police Station Darbha has deposed that first information report was lodged on the basis of report given by Shankar (PW/1). Thereafter the matter was investigated and after usual investigation the charge-sheet was filed against the appellant. 18. The above witnesses have been cross-examined by the defence, however, the defence has not been able to elicit anything which make their version untrustworthy or unreliable. Their Vjersion is further corroborated from the evidence of Dr. A.K. Jena(PW/6) who has conducted postmortem and found the injury as mentioned above. This witness has deposed that on conducting the postmortem he found that axe was embedded in the left side of the head of the deceased and the same was removed with force. Name of the appellant also appeared in the promptly lodged first information report by Shankar (PW/1 ). 19. Defence witness Shanti Bai is the wife of the accused/appellant who has been examined as witness of alibi. She has stated in her deposition that her husband never beat her. She has denied that Patel never came to her house. She has further denied the suggestion that her husband murdered Balram by axe. However, on the basis of the evidence of this witness, who is the wife of the appellant Samnath, the evidence of eye-witnesses Shankar (PW/1) and Lakhiram (PW/2) cannot be discarded. 20. On appreciation of the evidence of above witnesses, we are of the considered opinion that the prosecution has proved the involvement ofthe appellant in the crime in question beyond reasonable doubt. 21. So far as the argumentsof learned counsel for the appellant that there is no serologist report and the prosecution has failed in establishing any motive of the appellant for commission of offence are concerned, from the evidence ofeye-witnesses, we find that the deceased was sleeping in the verandah of his house whereas appellant assaulted the deceased by axe which was embedded in the left side of his head. Since there are eye-witnesses to the incident and the evidence of Dr. A.K. Jena (PW/6) who cgnducted postmortem of the deceased and removed the axe with force, embedded in the leftside ofthe head ofthe deceased, the questions of motive for commission of offence and report of serologist become irrelevant. .4' s-':^Syi... ^ 22. On the basis of aforesaid discussion, we are of the opinion that there is no illegality or infirmity in the impugned judgment. The appeal being devoid of merits deserves to be and is accordingly dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge Raju / -••