HIGHCOURT OFCHHATTISGARHATBILASPUR \: ,„ . —< DWISrONBENCH CORAM: HON'BLEMR. T.P.SHARMA& HON'BLE MR. R.L. JHANWAR, JJ. l6- i: APPELLANT RESPONDENT CRlMlNALAPPEALNo. 911706 Bhukhal Ram, S/o Bagar, aged 2i| years, Occupation- Labourer, R/o Kharsura, Thana- Udaypur, Dlstrict- Sarguja (C.G.) State of Chhattisgarh, through Police Station- Prem Nagar, Thana- Prem. Nagar, District- Sarguja (C.G.) , Versus CRIMINAL APPEAL UNDER SEGTION 374 OF THE CQDE OF GRIMINALPROGEDURE. 1973. Present:- Ms. Miriu Banerjee, Advoca.te for the appellant. Mr. RajendraTripathi, P.L. for fhe State/respondent. ORAL-JUDGEMENT (Passedon 22/03/2010) The following iudgment of the Court was passed bv T.P.Sharma, J:- 1. Challenge in this appeal is to the judgraent bf conviction and order of senfence dated 6/10/2006 passed by Second Addttional Sessions Judge' (Fast Track Gourt), Surajpur, District Sarguja in Sessions 4 ' . ...:•....;•.. Trial No. 383/2005 Iwhereby and where under after holding the appellant guilty for the commission of .culpable homicide amounting to murder of his wife »Si in'i:i-T deceased Sukhmania Bai convicted the appellant under \ Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 100/- in default of payment 6f fine <. amounf additional rigorous iinprisonment for 5 days. Conviction is impugned o^'the ground that without any 3f iota of evidence sufBcienf for Gonviction, Court belbw has convicted 'and sentenced the appellant as aforeinentioned and thereby committed an illegality. Gase ofthe prosecution, in brief, appellant and his wife deceased Sukhmania Bai were in not cordial terms. On fafeful day of 29/7/05 at about 5.30 a.rn. SukhBiania Bai (since deceased) and her sister-in-law (wife of her brother PW6 Meera Bai) went for ease, they are sitting at some distance. Appellant who was. hiding himself near the place of' mcident suddenly came. He was holding weapon, he assaulted SuKhmania Bai on her neck, Sukhraania Bai immediately died then PW6 Meei-a Bai cried for help; her husband PW9 Devnarayan came whom PW6 Meera Bai narrated the incident. PW1 Bandhan Ram went to the Police^Station and lodged 4- First Information 'Report vide ExT P-9 and Marg was recorded vide Ex. P-lO.Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P-1, inquest over fhe dead body 6f the •t 151 •^v deceased Sukhmania Bai was prepared vide Ex. P-2. \ Blood stained and plain soil were recovered from the spot vide Ex. P-3. Dead body was sent for autopsy to Community Health'Center, Prem Nagar, Surajpur vide Ex. P-4. Autopsy was conducted by team of Doctors i.e. PW5 Dr. Setram Paikra?^, PW7 Dr. T. Singh vide Ex.P-5 and found following injuries:- (i) Multiple abrasions Over right shpulder. (ii) Multiple abrasions over left shoulder and scapular region. (iii) Incised wound of 17 x 3x5 c.m. on right shoulder, extending to cervical bone. (iv) Incised wound of 5 x 2 Vs x 4 c.m. over right inastoid region. Injuries werefatalto life. Mode ofdeath wasshock and death was homicidal in nature. One blood stained axe was recovered from the accused vide Ex. P-8. Spot map was prepared vide Ex. P-Il. Sealed cloths of the deceased was seized vide Ex. P-12. One blood stained Shirt of the accused was seized vide Ex. P-13. Seized articles were sent for chemical examination vide Ex. P-15, presence 6f blood was confirmed over the axe seized from fhe accused. Stater&ents of the witnesses/were recoi-ded under * Section 161 Qfthe Code of Cruninal Procedure, 1973 (ih short the Code'). After com.pletion of the investigation charge sheef was filed before the Additional - Judicial Magistrate,. Surajpur who in tiirn comihitted Chief ^ ''<3ip/ ;*<ll3»! 9. 10. the case to the C(3urt of Sessions, Surajpur. Leamed Second Additional Sessions Judge, Surajpur received the case on transfer for trial. In order to prove fhe guilt bf the appellant/accused prosecution examined as many as 10 witnesses. Accused was examined.itinder Section 313 of the Code where he dehied the crrcumstances appearing against him, innocency and false impliGation is claimed. After affording an opportunity of hearing to the parties learned Second Additional Sessions Judge, Surajpur has convicted and sentenced the appeUant as aforem.entioned. Learned counsel for the appellant Ms. Minu Banerjee and learned counsel for the State/respondent Mr. Rajendra Tripathi, P.L. are heard. Judgment impugned and record of Court below perused. Learned counsel for fhe appellant frankly submits that in the light of evidence of PW6 Meera Bai she is not disputing the finding of the court below relating to injury caused by the appellant but is disputing the conviction and sentence. A Leamed counsel for the appellant furfher submits thaf in order to convict the accused under Section 302 6f the Indian Penal Code prosecution is required to prove that injury eaused by the accused was fatal for life and €. accused was having requisite knowledge that by his act \ the deceased will die, in absence of such essential ingredients of the ' offence the conviction of the appellant under Sectton 302 ofthe Indian Penal Code is not sustainable under the law and it requires reconsideration. In th^ present case, act of the appellant squarely falls-under Section 304 Part-II ofthe Indian Penal ^Code in which present appeUant is in custodysince 30/7/05. II. Learned counsel for fhe appellant placed reliance in the matter of Tarsem Singh and others u. State of Punjab1 in which Apex Coixrt has held that in case bf conviction under SeCtion 302 of the Ihdian Penal Code prosecution is required to prove injuries caused to deceased found severe enough to cause death in. ordinaiy •• course and accused was having requisite knowledge that injuries inflected were lightly to cause death ofthe deceased. 12. Leamed counsel for the appellant further placed reliance in the matter •pf Adu Rcim._u. Mukna^and otfters3 in which Apex Court tj&s held that for deciding the conviction number ofinjuries on deceased person is not determinative of offence to determinate the offence ' AIR 2002 SC 760 ~2 AIR2664SC 5064 '')- 1 .d<y' ^ :-«:K' I, prosecution is required to consider fhe weapon used, \ part of body where injuries were inflicted and nature of injunes. 13. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that prosecution has prove^ its case beyond all shadow of doubts. In the present case, appellant was hiding himself near the place of incident and while deceased was alone then appellant was holding dangerous weapon axe has caused fatal injury over the neck ofthe deceased along with other injuries thereby he caused repeated injuries. Nature of injuries, weapon appellanf used and part of fhe body where injuries were found shows that appellant has caused fatal injuries wifh intentto cause the death of the deceased. • 14, Infhe present case,boththe parti.es have notdisputed fhe fact that appellant has caused injury and homicidal death of the deceased even otherwise homicidal death of the deceased is established by the evidence of PW5 Dr. Setram Paikra SB P^7 Dr. T. Singh and autopsy report Ex.P-5 which reveals th^t fatal injiu-y was fouhd •*:••' on the neck. Death was homicidal in nature. PW6 Meera Bai has categorically deposed fhat appellant and deceased were not cordial term before the date of .. incidenf deceased has refused to accompany Iier? V ^fgs-'^1'^'^ sf"i.. ""^s ^•••^ te iu.4< s~x 15. 16. husband i.e. appeUant, at the time of incident they had \ gone for ease at that time appeUant was hiding himself came with weapon' and assaulted the deceased. Her evidence is corrotiorated by promptly Ibdged First Information Report Ex. P-9 and Marg Ex.P-10 and also by medicalevidence. g , As regard the motive of the offence and conviction under Section 302 of the Indian Penal Code is concerned as held in case df Tarseni Singh and others v. State of Puniab (Supra) prosecution is required to prove that injuries caused to deceased found severe enough to cause death in ordinary course of nature and accused must have a requisite knowledge that injuries inflected were lightly to cause death Ofthe deceased likewise as held in case of Adu Reim v. Mukna and others (Supra) for determinative of offence court is required to consider the weapon used, part of body where injuries were inflicted and nature of injunes. • In the present ease, wqapon used was axe injury was found.over the neck along wi^i other injuries according to Para-4 of the evidence ofPWTDr. T. Sihgh injuries No. l 8s 2 were fatal to life. Injury found over the neck clearly reveals that it was fatal fbr life while deceased? was alone at that time appellant caused fatal injury ,to -ft Sa ^^^^^^^^^^^^^? N 17. 18. her by dangerous weapon axe over her vital part neck \ and caused her instantaneously death. As held in aforesaid cited cases at fhe time of causing injury appellant was having definite knowledge that by his act death may likely to be caused. He has used dangerous weapon on the vital R'^rt of the neck of the deceased M and also caused repeaj.ed injuries. These circumstan.ces are sufficient for drawing an inference that appellant has caused injuries to his wife with intent to culpable hoinicide amounting to murder of his wife. After appreciating, the evidence available on record learned Second Additional Sessions Judge, Surajpur has convicted and senfenced the appellant as aforementioned. On cldse scrutiny of the evidence, we do riot find ariy illegality^ or infirmity in the convicfion and Sentence of the appellant. The appeal is devoid of merits. Consequently, this criminal appeal is Uable to be dismissed and is hereby dismissed. 'Sd/-::,1'' T.R Shaiina Judge^ Sd/- R.L.Jhanwar Judge .{