HIGH COURT OF CHHATTISGARH AT BILASPUR DFVISION BENCH CORAM: r HON'BLE MR. T.P. SHARMA fic HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT (IILJAIL1 CMMINAL APPEAL No. 582 OF 2004 Gopalram, son of Gambhir Sai Majhwar, aged about 30 years, resident of Ududa, Police Station Dharamjaygarh, District Raigarh (Chhattisgarh). VERSUS RBSPONDENT State of Chhattisgarh, through Police Station, Dharamjaygarh, District Raigarh (Chhattisgarh). APPEAL UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE 1973. Present:- Mr. M.B. Agrawal, Sr. Advocate with Ms. Pragya Singh, Advocate for the appellant. Mr. Arun Sao, G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 16/09/2010) The following iudgment of the Court was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 2/4/2004 passed by 4th Additional Sessions Judge (F.T.C.) Raigarh in Sessions Trial No. 140/2003 whereby and where under after holding the appellant guilty for the comniission of offence of culpable homicide amounting to murder of Ashadhram convicted the appellant under ^^:^ Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 200/- in default of payment of fine additional rigorous imprisonment for 1 month. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful night of 3/7/2003 at about 4 A.M. Ashadhram was sleeping in his house, appellant was also sleeping in same house. At about 4 A.M. appellant woke up and on account of previous dispute he assaulted Ashadhram by axe over his abdomen and caused fatal injuries resulting into his instantaneous^L death. His son Ramkumar after hearing the sound of his father woke up and saw that appellant was running towards courtyard. He went to the police station and lodged First Information Report vide Ex. P-l.Marg was recorded vide Ex.P-10. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-4 inquest over the dead body of deceased Ashadhram was prepared vide Ex. P-6. Dead body was sent for autopsy to Civil Hospital Dharamjaigarh vide Ex. P-13. Autopsy •^ was conducted by PW12 Dr. B.L. Bhagat vide Ex. P-13A and found incised wound of 6 x 3 c.m. over abdomen. Stomach was came out on account of injury. Stomach and stomach membrane were ruptured. Liver was found cut. Death was homicidal in nature. Spot map was prepared vide Ex. P-2. Patwari also prepared spot map vide Ex. P-3A. During course of investigation accused/appellant was taken into custody he made discloser statement of axe vide Ex. P-5 same was recovered at the instance of appellant vide Ex. P-8. Blood stained and plain soil and blood stained Dhoti were seized from the spot vide Ex. P-7. Blood stained cloths of appellant was seized vide Ex. P-9. Sealed cloths of deceased was seized vide Ex. P-11. Axe was examined by doctor vide Ex. P-14A. Sealed articles were sent for chemical examination vide Ex. P-16. Presence of blood was confirmed on the axe and cloths recovered from the appellant vide Ex. P-17. Statements of the witnesses were recorded under Section 161 ofthe Code of Criininal Procedure, 1973 (in short 'the Code9). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Dharamjaigarh who in turn committed the case to the Court of Sessions, Raigarh from where learned 4th Additional Sessions Judge (F.T.C.) Raigarh received the case on transfer for trial. 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 12 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. Accused/appellant has also examined defence witness DW1 Mahpal who has deposed that at the time of incident appellant was with him and was not present in the house of Ashadhram. He has also examined DW2 Dr. B.R. Sawariya who has examined on him on 4/7/03 and found 4 injuries vide Ex. D-2. 7. After affording an opportunity of hearing to the parties learned 4th Additional Sessions Judge (F.T.C.) Raigarh has convicted and sentenced the appellant as aforementioned. 8. Learned senior counsel for the appellant Mr. H.B. Agrawal with Ms. Pragya Singh, counsel and learned Govt. Advocate for the State/respondent Mr. Arun Sao are heard. Judgment impugned and record of Courf below perused. 9. Learned counsel for the appellant vehemently argued that in the light of evidence of PW1 Ramkumar, PW2 Pachobai, PW3 Sirato Bai, he is not disputing the ^" injuries found over the body of deceased Ashadhram and the fact that appellant has caused injuries but only argued on merits of the case that if the case of the prosecution is admitted then only presumption would be possible that present appellant has caused single blow upon abdomen not upon vital part of the body of deceased therefore, the act of the appellant does not travel beyond the scope ofunder Section 304 Part-II of the Indian Penal Code and present appellant is in custody since 3/7/2003 and same would be sufficient sentence to him for aforesaid offence. 10. On the other hand, learned Govt. Advocate fo^ the State/respondent opposed the appeal and submits that present appellarit has caused injury to Ashadhram while he was sleeping and appellant has not caused any injury on the spur of movement. He has caused injury by dangerous weapon axe over the abdomen resulting into his instantaneously death shows his grave intention of causing culpable homicide amounting to murder of Ashadhram therefore, Court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution; 6 12. In the present case, homicidal death as a result of fatal injuries found over the abdomen including injury upon liver and stomach of Ashadhram has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW12 Dr. B.L. Bhagat and autopsy report Ex. P-13A which reveal that 6 x 3 c.m. incised wound was found over the abdomen. Stomach & liver were found ruptured. Death was homicidal in nature. 13. In the present case, appellant has taken the defence of alibi that at the time of commission of offence he was not present in the house of Ashadhram and was present in the house of Mahpal whom has examined as DW1 but in the light of evidence of PW1 Ramkumar, PW2 Pachobai, PW3 Sirato Bai, the evidence of DW1 Mahpal has been discarded by the Court below. Evidence of PW1 Ramkumar son of deceased Ashadhram, PW2 Pachobai daughter of the deceased, PW3 Sirato Bai wife of the deceased who were present at the time of incident and has seen the part of incident are sufficient for drawing an inference that appellant who has also sleeping in the same house was a person who has caused fatal injury to Ashadhram resulting into his instantaneously death. 14. As regard the intention, motive and mitigating circumstances is concerned, motive is only aid incriminating and it can be inferred on the basis of injuries caused, nature of injuries and part of the body where injuries found, weapon used and like other circumstances. 15. In the present case as per evidence of PW1 Ramkumar, PW2 Pachobai, PW3 Sirato Bai appellant and Ashadhram were sleeping in the same premises, at about 4 A.M. appellant woke up and caused fatal injury over the abdomen of Ashadhram who was sleeping at that time there was no quarrel between both the persons. Appellant was not provoked by the Ashadhram, there was no occasion for causing any injury. Ashadhram was sleeping in helpless position, appellant has caused injury over abdomen is cause of rupture of stomach and also caused injury upon the liver it shows that there was no occasion for causing any injury to the Ashadhram and present appellant has intentionally caused injury upon Ashadhram. He was sleeping at the time of incident and as a result of injuries he died on the spot this shows grave intention of causing culpable homicide amounting to murder of Ashadhram. ^^te^^*'' 16. Affcer appreciating, the evidence available on record learned 4th Additional Sessions Judge (F.T.C.) Raigarh has convicted and sentenced the appellant as aforementioned. Conviction and sentence of the appellant is based on legal, credible and clinching evidence sustainable under the law. Court below has rightly convicted and sentenced the appellant as aforementioned. 17. On close scrutiny of the evidence, we do not find any illegality or infirmity in the conviction and sentence of the appellant. The appeal is devoid of merits. Consequently, criminal appeal is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^v