HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.366 of 2005 1. APPELLANTS: (In Jail) Mehttar Ram, son of Pancham Kewat, aged , about 45 years., Shivprasad, son of Mehttar Ram Kewat, aged about 27 years. Both residents of Godaiya, P;S. Ratanpur, District Bilaspur (Chhattisgarh) Versus State of Chhattisgarh, through the Station House Officer, Police Station Ratanpur, District Bilaspur. {Appeal under Section 374 of the Code of Criminai Procedure, 1973} RESPONDENT: Prese ' nt: Mr. Yogeshwar Sharma, counsel for the appellants. Mrs.Madhunisha Singh, Panel Lawyer for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma an Hon’hle Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (3-1—201 1) T.P. Sharma, J: - 1. Challenge in this appeal 'is to‘the judgment of conviction & order‘o‘ sentence dated 25-2—2005 passed by the 5m Additional Sessions Judge, Bilaspur in Sessions Trial No.368/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission ‘of culpable homicide amounting to murder of Sawat Ram in sharing common intention and causing simple injury to Urmila & Parmeshwari in, sharing common intention, convicted the appellants under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.500/—, in default of payment of fine to further undergo Rl for three months and to undergo RI for three months, respectively; . Conviction is impugned on the ground that without any iota of evidence, \\ the trial Court has convicted & sentenced the appellants, and thereby \\ committed illegality. . v d f ' \ \ 3. A per se o the roectio, on ateful nigt o -6-2004 at ab 8.30 p.m. Sawat Ram (since deceased) after consuming Iiqu'or was abusing his wife & children, the appeiiants herein, who are neighbours of Sawat Ram, came to the house of Sawat Ram, appeiiant Mehttar Ram was hoiding stick and appeiiant Shivprasad was holding betel axe, they dragged Sawat Ram from his house towards Iane, assaulted him by stick & betel axe and caused his instantaneous death Urmila (PW—1) — wife of Sawat Ram and Parmeshwari (PW 2) daughter of Sawat Ram were present In the house and they have Witnessed the InCIdent Within four hours of the InCIdent, Urmila (PW-1) went to the police station and lodged FIR vide Ex.P-1 ,and merg intimation vide Ex.P-2. The investigating Officer left for the scene of occurrence and after summoning the witnesses, prepared inquest over the dead body of Sawat Ram, vide Ex.P—3. Injured Parmeshwari was sent for medical examination vide Ex.P-14C and she was examined by Dr. Anil Shrivastava (PW-6), vide EXP-14, who found one lacerated wound over forehead. Urmila was also examined by Dr. Anil Shrivastava (PW—6) vide Ex.P-15 and three injuries were found on her body. Dead body‘of. i . Sawat Ram was sent for autopsy to Primary Health Centre, Ratanpur vide EXP—13C. Dr. Anil Shrivastava (PW-6) conducted autopsy vide Ex.P-13 and following injuries were found: — (1) Deep incised wound of size 4" x 1/2” x 3/4” over left side of fronto parietal bone. (2) Deepincised wound of size 3 1/2" x 1/2" x 3/4” over head. (3) lncised wound over right cheek of size 2 W x 1/2” x 1/2 ' (4)_lncised wound over right fronto parietal bone of size 3" x 2” x 1/2” along with fracture. Internal bone beneath the injury was found fractured. Except injury No.(3) all the injuries were ante mortem in nature. Cause of death was shock and death was homicidal in nature. During the course of investigation, appellant Mehttar Ram was taken into Custody, he made discloser statement of stick vide Ex.P-4 and same was recovered at his instance vide Ex.P-6. Appellant ShiVprasad also made discloser statement of axe vide Ex.P-5 and same was recovered at his instance vide Ex.P—7. Bloodstained soil, plain soil and three broken ieces of teeth of the deceased were seized from the spot vide Ex.P-8. One bamboo stick was recovered from another juvenile offender Rarad vide .P-9 a his clothes ere also ize vide EXP-10. i a. .[V ,i s ca f psun the f h f 18 out v 1/ n p mpas Ex nd w sed Spot map wasprepared by the Patwari vide Ex.P—17. The lnVestigating Officer also prepared spot map vide Ex.P-21. Bloodstained sari of the appellant was seized vide yEx.P—6. Sealed clothes of the deceased were seized vide Ex P-20 Seized articles were sent for chemical examination and presence of blood was confirmed on axe recovered from accused Shivprasad and stlck recovered from accused Mehttar Ram vrde Ex P- 22. Statementsof the witnesses were recorded under Section 161 of the Cr.P.C.. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Bilaspur who committed the case to the Court of Sessions, Bilaspur where learned Additional Sessions Judge received the case oh, transfer for trial. 5. ln order to prove the gurlt of the accused the prosecution has examined as many as ten Witnesses The accused were examined under Section 313 of the Cr P C in which they denied the Circumstances appearing against them pleaded Innocence and false Implication In the crime In question Accused Mehttar Ram has taken speCIfIc defence that at the time of InCIdent deceased Sawat Ram was assaulting him by stick and therefore With a View to save himself and In exerCIse of the right of private defence by snatching stick from Sawat Ram he has caused Injury to Sawat Ram Accused Shlvprasad has taken defence that at the time of InCIdent he was not present In the Village and he has gone to Bilaspur With Witness Durga Prasad (DW—1), and thereby he has taken the defence of alibi. . After affording opportunity of hearing to the palties, learned Additional appellants as , i essions . Judge convicted & sentenced the aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. . Mr. YogeshwarSharma, teamed counsel appearing on behalf-of the! ‘ J appellants vehemently argued that as per case of the prosecution, partlcularly, eVIdence of Urmlla (PW-1) and Parmeshwari (PW—2) the InCIdent took place on account of filthy language used by deceased Sawat Ram on Mehttar Ram who was reSIdIng In front of the house of Sawat Ram and on sudden provocation Mehttar Ram went to the house of Sawat Ram whom Sawat Ram assaulted on which by snatching stick . S from Sawat Ram, appellant Mehttar Ram has caused some injuries to Sawat Ram (since deceased). At the time of incident Mehttar Ram has also sustained injuries, but same has not been explained by the prosecution. Appellant Shivprasad Was not present at the time of incident. At the time of incident there was darkness and the witnesses were not in a position to see as to who has caused injury to whom, by which object and upon which part of the body. Mr. Yogeshwar Sharma" further argued that if evidence of the prosecution is considered as true, even then act of the appellants does not travel beyOnd the scope of Section 304 Part—l of the IPC. Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellants, placed reliance in the matter of Balbir Singh etc. v. State o Punjab etc.1 in which the Supreme Court has held that if injury is cause to teach lesson to the deceased, act of the accused does not travel beyond the scope of Section 304 Part—I of the IPC. Mr. Yogeshwar Sharma further placed reliance in the matter of Thankachan v. State of“ r » '> i Kerala2 in which the Supreme Court has held that injury caused by ka'tar with a view to save his mother and death was as a result of excessive hvaemorrhage, act of the accused squarely falls under Section 304 Part—II of the IPC, not under Section 302 of the ’IPC. Mr. Yogeshwar Sharm also placed reliance in the matters of Adu Ram v. Mukna and others3 and Kandaswamy v. State of Tamil Nadu" in which the Supreme Court has held that incident took place on account of sudden quarrel, case falls under Section 304 Part—ll of the IPC. 10.Mr. Yogeshwar Sharma, learned counsel for the appellants, also submits“ H r , that'the prosecution is under obligation to explain the injury found over the body of the accused, if same is not explained, inference would be drawn thatthe prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version, and that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point. Mr. Yogeshwar Sharma relied upon the matter of Lakshmi Singh and others etc. v. State of Bihar5 in which the Supreme Court has held that'in a murder case, the ‘ 1 2005 (1) ccsc 460 2 2005 (3) ccsc 1181 3 2005 (1) ccsc 70 4 2008 (3) ccsc 1149 (SC) ' 5 1976 Cri. L.J. 1736 = AIR 1976 sc 2263 . f d a 5 @ :2 non-explanation of the injhries sustained by the accused at about the” ime of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are Iying on a most material point and therefore their evidence is unreliabie; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. .Mr. Yogeshwar Sharma further relied upon the matter of Murlidhar v. State of M.P.6 in which the High Court of Madhya Pradesh has held that the accused is entitled to cause injury in exercise of the right of. private defence and the prosecution is required to explain the injury found over the body of the accused. 12.0n the other hand, Mrs. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State/respondent, opposed the appeal and t submitted that in the present case, the prosecution has not explained the injury over the body of one of the appellants and the defence has no adduced any evidence to show that accused Mehttar Ram has sustained injury at the time of incident. Although the witnesses have admitted that at the time of incident electric light was not present in the village, but they have not stated that there was darkness at the time of incident. Urmila (PW-1) and Parmeshwari (PW-2) — eyewitnesses have substantially ‘ corroborated the case of the prosecution and have deposed that the appellants have caused fatal injuries to Sawat Ram resulting in his death. 13.ln order to appreciate the arguments advanced on behalf of the parties: we have examined the evidence adduced on behalf of the parties. ~ 14.ln the present case, homicidal death of deceased Sawat Ram has not been substantially disputed on behalf of the appellants, otherwise also it is established by the evidence of Dr.‘Anil Shrivastava (PW—6) and autopsy report Ex.P-13 that four fatal injuries were found over head & face of the deceased and death of the deceased was homicidal in nature. Injury found over the body of Parmeshwari has also not been 6 1978—” M.P.w.N. (163) t t > _(63~,; 5.s gar it of e aplnt he rim qu cion aans s stnly on te idnce of Ura (W) w f decesed a Pmswai (W2 — dghte e eased, th e r itness ad bth are injured itness, d h resence a the ime of cit i naural .ril —1) — i f th ceed as ategocall eod in r enc that a th time f nciden er hsbd s one liqor ad as ung er and h children on' hic h apeats hos" i hou wa adjoning to h huse ca to her h, ppllan ea Ram was h ik and alt Shra hoin ~ olding stc ppelan ivpsad was ldg tabli sall e axe, they assaulte r hband b bete x stik th veand thereafte, ey ragge him towards t l d asau s result er husban i instantaneol. Treafer, the lant l t plac f icident. er evidence as ee substtially obe te ece of Phar PW 7.he incnt to la at bou 8.0 p.m. hr iess av amit that at th ie o incident eli liht not ailable n th vge bu hv sate ng at oher lgt or t was mple k PW) i ws an sh a ben examed y Dr. nil Srivastava (P~. 8. te evidence of- ot the witnesses viz, Ua W—1 n armeshwari (PW—, both were present at the time of incdent, Sawat Ram (since deceased) was abusing them, at that time the appellants ame to their house, appellant Mehttar Ram was holding stick and appellant Shivprasad was holding betel axe, they assaulted Sawat Ram in their verandah and thereafter they dragged him towards the lane and * again assaulted him till his death. These witnesses have denied the suggestion that accused Shivprasad was not present at the time of incident. m betl d he us y l ae and c in e rah, r th dd he ane an slted him a of h d ded usy het appels eft he e o n H h bn an corroratd by h viden armeswi (-2). 1T ide ok pce at 2 Ote wtnse he dted e tm f ectrc g was av i e“ illa, t they ae not td anythi th there was no t ih here cote darness. Parmeshwari (—2 is njured itnes d e hs e in b A h W6) 1As per h bh . rmil (P) ad P 2) i v aawyvag—g substantially disputed on behalf of the appellants and same is also established by the evidence of Dr. Anil Shrivastava (PW-6) and injury report Ex.P—14. Similarly, injuries found over the body of Urmila have also not been substantially disputed on behalf of the appellants and same are also established by the evidence of Dr. Anil Shrivastava (PW-W K, l 6) and injury report EXP-15. 1A reds complicy th pelas in t ce in estion, convit of the ppellt i subatial based h eve mil P—1 —- ife o the a nd arehr P-) aur. of th dce bo ar elative wes n o wes an teir p t t inden s t. 16Uma (PW wfe o e deas h criy dpse he videe t e o it h uan ha csumd u n w absi h er wh te plln we se s i er o me ouse aet Mhttr c 7 . 1). As 1), at the time of incident fter, they came to the rviilage and after taking bath in the pond they reached to house at about 9.30‘ p.m. As per his evidence, appeilant Shivprasad purchased medicine from some shop, any receipt issued by the shopkeeper would have been the best evidence in support of the defence of alibi, best known to appellant Shivprasad, neither he has f but for the reasons iled any receipt nor he has examined the shopkeeper. Evidence of Durga Prasad (DW—1“),w ,l at he reveals that he is completely a chance witness. His evidence shows th he has tried to explain the fact that from 4—5 p.m. till 9.30 p.m. on t fateful day, appellant Shivprasad was with him. 20.ln’ the light of evidence of eyewitnesses, evidence of' other witnesses does not inspire confidence. 19.8hivprasad has examined defence witness Durga Prasad (DW— per the evidence of Durga Prasad (DW- Shivprasad was with him at Bilaspur, therea Evidence. of Urmila (PW—1) is well corroborated by the evidence of Parmeshwari (PW-2), promptly lodged FIR Ex.P-1 and merg Ex.P-2 which reveal that the appellants have caused repeated injuries over the body of Sawat Ram which resulted in his death. These witnesses have not admitted the injury found over the body of accused/appellant Mehttar‘Ram and Mehttar Ram has not adduced any evidence to prove any injury. .As held in the matters of Lakshmi Singh (supra) and Murlidhar (supra), definitely the prosecution is under obligation to explain the injury found over the body of the accused, but the accused is under obligation to prove that injury was found upon his body that too at the time. of the incident, however, in absence of any evidence of‘injury sustained by the accused, the prosecution is not under obligation to explain any such injury. The cases of Lakshmi Singh (supra) and Murli l distinguishable on facts to that of the present case. 22.Evidence of Urmila (PW- dhar (supra) are 1) and Parmeshwari (PW-2) well corroborated by the FIR EXP-1 and merg Ex.P—2 are sufficient for draWing inference that the appellants have caused homicidal death of the deceased. ~23.As regards the question of motive, motive only aidsrin criminality and in case of direct evidence it loses its importance. Motive can be inferred on i the basis of the weapon used, part of the body effected, and other-similar circumstances. nature of injury 4.ln the present case, both the appellants went to the house of the deceased, they were holding stick & betel axe and they assaulted the deceased in his house, thereafter they dragged him towards the lane and again assaulted him till his death. Present offence is not a sudden quarrel, the appellants have not caused injuries to the deceased all of a sudden and in a bit of anger, even the appellants have not caused injuries to the deceased while exercising the right of private defence or to save any person. Therefore, the cases of Balbir Singh (supra), ,Thankachan (supra), Adu Ram (supra) and Kandaswamy (supra) are distinguishable on facts to that of the present case. 25.Evidence adduced on behalf of the prosecution clearly reveals that the appellants have firstly assaulted the deceased in his house, thereafter, they dragged the deceased on the lane and again assaulted him by axe“ ’ & stick and caused repeated injuries on head which shows grave intention of causing his death, also sharing common intention and also causing injuries to Urmila & Parmeshwari. 26.After appreciating the evidence adduced on behalf of the prosecution, the trial Court has convicted the appellants under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced them i the aforesaid manner. 27.0n close scrutiny, we do not find any illegality in conviction & sentences imposed upon the appellants by the trial Court. Consequently, the’ ' appeal being devoid of merit is liable to be dismissed and it is hereby _ wisseg . Sd/ ’ ‘ mnsHAnMA all] judge Sdl- R.L. Jhanwar Judge if” i ‘ l‘.‘ (1 ‘ 1 ll d l'l‘l ?]e w 2 ( n