HIGH COURT OF CHHATTISGARH : BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jail) RESPONDENT Cr.Appeal No. 166ofl995 Tulsiram Sahu, S/o Ranjan Sahu, aged about 27 years, resident of Bajrang nagar, Amapara, Raipur. Versus State of Madhya Pradesh (now Chhattisgarh) Through Police Station, Azad Chowk, Raipur, Dist. Raipur. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CRIMINAL PROCEDURE CODE, 1973 Appearance: Shri Abhay Tiwari, counsel forthe appellant Shri Sandeep Yadav, Deputy Government Advocate General for the State ORAL JUDGMENT (Delivered on 16.04.2010) The following judgment was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.09.1994 passed by IstAdditional Sessions Judge, Raipur in Sessions Case No. 112 of 1992 whereby and whereunder after holding the appellant guilty for the commission of culpable homicide amounting to murder of Vijay Yadu and was in possession of dangerous weapon and its use, the Court below convicted the appellant under Section 302 ofthe I.P.C. and 25 & 27 of the Arms Act and sentenced him to life imprisonment under Section 302 of the I.P.C., to undergo Rl for one year under Section 25 and to undergo Rl for two years under Section 27 of the Arms Act. 2. The conviction is impugned on the ground that withoutany clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforesaid and thereby committed illegality. '•'^''H^II"' .'/'--'^Efi^. % ;"i-E3;e-;' 3. Brief facts of the case are that on the date of incident i.e. 10.11.1991 at about 12.15 p.m. the deceased Vijay Yadu was present near Satyanarayana Mandir. At that time, the appellant and his brother - Ravi Sahu, who was driving the scooter while the appellant was pillion rider, came there by scooter. The appellant was holding dagger. Both the accused abused the deceased and assaulted him by dagger in the abdomen of the deceased and caused fatal injury. After incident, they fled from the spot. P.W.1 Shailendra Singh ThaKur, P.W.5 Nirmal Singh Thakur, Yogendra Sharma, Girish Shukla, Chhotu Soni and Rakesh Dhruv, who were present on the spot, took the injured to the D.K.Hospital. Dehati Nalishi was lodged vide Ex.P.1. During the course oftreatment, Vijay Yadu has died. Doctor intimated the police relating to the death of Vijay Yadu vide Ex.P.14. Merg intimation was recorded vide Ex.P.15. Investigating Officer left the hospital. After summoning the witnesses vide Ex.P.2, inquest over the dead body of Vijay Yadu was prepared vide Ex.P.3. On Rickshaw stained with blood was seized vide Ex.P.4. Finally, F.1.R. was lodged vide Ex.P.6. Dead bodywas sent for autopsy to the D.K.Hospital, Raipur vide Ex.P.7. P.W.12 Dr. D.C.Jain conducted autopsy vide Ex.P.11 and found on stab wound of %" x 1/6" was present in the middle abdomen. Internal blood vessels of the abdomen were found cut. Mode of death was shock and death was homicidal in nature. Seized cloths ofthe deceased were sealed vide Ex.P.5. Appellant was taken into custody. He made disclosure statement of dagger vide Ex.P.8 and the same was recovered at the instance of the appellant vide Ex.P.9. Scooter was seized from the accused - Tulsiram Sahu vide Ex. P.10. 4. Statements of witnesses under Section 161 of the Code of the Criminal Procedure (for short 'the Code') were recorded. After completion of investigation, charge was filed before the Court of J.M.F.C. who in turn committed the case to the Court of Sessions. The learned Additional Sessions Judge has received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 20 witnesses. The accused - persons were examined under Section 313 of the Code where he denied the circumstances appearing against them and innocence and false implication was claimed in crime in question. Accused-persons examined defence witnesses Rajesh Thakur, ?- fc;"^'- ^.y —®" Maharathi and Giridharilal who have deposed that at the time of incident the appellant was present in his R.T.O. office. Appellant also taken the defence of alibi. 6. After affording opportunity of hearing, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties at length, perused the impugned judgment and records of the Courts below. 8. Learned counsel for the appellant vehemently argued that in the present case the prosecution has not proved the fact that the appellant has caused fatal injury to the deceased. Evidence of allegedeye witnesses of P.W.1 Shailendra Singh Thakur, P.W.3 Goverdhan, P.W.5 Nirmal Singh Thakur, P.W.6 Yogesh Sharma and P.W.13 Ashok @ Chhotu does not inspire confidence and trustworthy. They are interested witnesses. Their evidence is not safe to rely. The appellant was not present at the time of incident. Even otherwise this is a case of single assault. After altercation and act of causing solitary injury would not amount to offence of murder but may amount to offence of culpable homicide not amounting to murder punishable under Section 304 Part II ofthe I.P.C. 9. Learned counsel for the appellant placed reliance in the matter of Deshruj Yadavv. State ofM.P., 2002 Cri.L.J. 467 in which the High Court of M.P. has held that during the course of altercation solitary injury caused on the back of deceased by means of gupti (knife) would not amount to offence of murder but would certainly amount to offence of culpable homicide not amounting to murder punishable under Section 304 Part II. 10. On the other hand, learned counsel for the State opposes the appeal and submits that the prosecution has proved its case by adducing the evidence of eye witnesses. In the present case, the appellant along with his brother came by scooter to the spot where the deceased was present. The appellant was holding long dagger of 11" blade and he caused fatal injury on the abdomen of deceased i.e. vital part of the body and caused the death of Vijay Yadu shows that the appellant came with intention to causing culpable homicide amounting to murder of Vijay Yadu and has caused fatal injury by dangerous weapon i.e. dagger on the vital part of the body. He further te ^•^— argued that Court below has rightly convicted and sentenced the appellants under Section 302 of the I.P.C. and 25 & 27 of the Arms Act. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examinedthe material available on record. In the present case, the homicidal death as a result of ante-mortem fatal injury of Vijay Yadu has not been substantially disputed by the appellant on the other hand also established by the evidence of P.W.12 Dr.D.C.Jain and autopsy report Ex.P.11 which revealed that stab injury was found in the abdomen and internal blood vessels of the abdomen were found cut. Small and large intestines were also found cut. Death was homicidal in nature. 12. As regards the complicity of the appellant in crime in question, the conviction is based on the evidence of eye witness i.e. P.W.1 Shailendra Singh Thakur, who was present on the spot at the time of incident, has deposed in his evidence that at the time of incident he along with other witnesses namely Nirmal, Yogendra, Girish, Chhotu and Rakesh were present on the spot. The appellant came wjth other co-accused by scooter. At that time, the deceased - Vijay was talking with them. Co-accused Ravi was driving the scooter. The appellant Tulsiram was found sitting back. He is a pillion rider. Appellant Tulsiram, who was holding dagger, got down from the scooter and assaulted the deceased on his abdomen and both the accused fled from the spot by scooter. They took the injured to D.K.Hospital where he was admitted. Thereafter, this witness went to the police outpost and lodged Dehati Nalishi vide Ex.P.1 after 1% hours i.e. at about 1.40 p.m. Vijay Yadu succumbed to the injury. His evidence is substantially corroborated by the evidence of P.W.5 Nirmal Singh Thakur, P.W.6 Yogesh Sharma, P.W.13 Ashok @ Chhotu and is also corroborated by the testimony of P.W.3 Goverdhan and P.W.4 Kallu @ Laxminarayan. The defence has cross-examined this at length but it struck into their version that the appellant came along with his brother Ravi Sahu by scooter and assaulted Vijay Yadu by dagger in his abdomen and fled from the spot by scooter. 13. The accused/appellant has also examined defence witnesses D.W.1 Rajesh Kumar, who has deposed that on the date of incident co-accused Ravi was with him till 3.00 p.m. but in cross-examination, he has stated that despite knowing the fact that Ravi has been implicated in the criminal case of .--<^-' ;., ^" -.,•' '•'*^ -^. Itts murder of Vijay, at the relevant time, this witness has not made any complaint to the police, on the other hand, he went to his village shows that he is concealing the truth. The defence has also examined D.W.2 Maharathi and D.W.3 Giridharilal, who have deposed that at time of incident, the appellant Tulsiram was present in the R.T.O. Office situated at Telibandha, Raipur but in cross-examination D.W.2 Maharathi has admitted that that was Sunday and holiday. In paragraph 6 of his cross-examination, he has stated that when he came to know that appellant was arrested in connection with murder case he tried to inform the police that on the date of incident, the appellant was present with him till3.30 p.m. but police has not taken note of this fact. He has also stated that he has not tried to make complaint to superior police officials. D.W.3 Giridharilal has stated that the appellant was present in the R.T.O. office at about 11.30 - 12.00 noon. According to the case of the prosecution, the present incident took place at 12.15 at noon. The evidence of D.W.3 Giridharilal is not relevant for this case. The evidence of D.W.2 revealed that he is also concealing the truth. 14. P.W.20 Station tncharge B.C.jain has deposed that he has interrogated the appellant who made memorandum statement to him vide Ex.P.8. He produced the dagger from burial ground, Gudhiyari, which he seized vide Ex.P.9. The size of dagger has been mentioned in Ex.P.9 which shows that blade of dagger was 11" about 1 feet. Except hostile witness Ashok P.W.13 and other eye witnesses have not deposed that at the time of incident any altercation took place. According to these witnesses, the appellant along with his brother came by scooter. He was holding dagger of sharp edged size and assaulted with it on the vital part i.e. abdomen of the deceased and fled by scooter from the spot. The appellant has also not offered any explanation that he was present on the spot; why he came to the spot especially when there was dispute between the parties; why he was holding dagger that too of such healthy size. The evidence adduced on behalf of prosecution clearly shows that the appellant along his brother came from house situated in other area to the spot and after assaulting the deceased again he fled from the spot by scooter which is sufficient for drawing an inference that the appellant came with definite intention to kill the deceased and with intent to commit the murder of deceased - Vijay Yadu. The appellant also caused fatal injury on the vital part of the body of Vijay - 6 Yadu, resulting into the death with 1 % hour of the incident. In the matter of Deshruj Yadav v. State of M.P. (supra), some altercation took place and after altercation the accused assaulted the injured over his back but in the present case the accused came with dagger of good size and assaulted the deceased on his vital part without any altercation and after causing fatal injury fled from the spot. The facts of above case are distinguishable to the facts of the present case. 15. The aforesaid circumstances of the present case are sufficient for establishing the fact that the appellant has intentionally caused fatal injury on the vital part of the deceased with intent to cause culpable homicidal death amounting murder of the deceased. After appreciating the evidence available on record, the learned A.S.J. has convicted and sentenced as mentioned in paragraph 1 of this judgment (supra). 16. The conviction and sentence of the appellant is based on credible, clinching and legal evidencesustainable under law. 17. For the foregoing reasons, we do not find any substance in the appeal and appeal is liable to be and is hereby dismissed. The appellant is on bail. He shall surrender immediately before the Court of 1 Additional Sessions Judge, Raipur for serving the remaining sentence imposed him in S.T.No. --112/92, Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge