ll&^^ HIGH COURTOFCHHATTISGARH.BILASPUR Criminal Appeal No.184/2007 APPELLANTS (Injail) 1 VERSUS RESPONDENT Samaru Kanwar Son of Chamar Rai, aged about 42 years, Resident of Village Geraon, PS Kartala, District Korba (CG) Ram Singh son of Parat Ram, aged about 50 years, Resident of vjllage Geraon P.S. Kartala, District Korba (CG) State of Chhattisgarh through, Police Stalion Kartala, District Korba, (CG) CRIMINAL APPEAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCUDERE Appearance: Shri AbhayTiwari, counsel forthe appellants. Shri J.A. Lohani, Panel Lawyer forthe State. Division Bench:- Hon'ble Shri T.P. Sharma & Hon'ble Shri R-L.Jhanwar.JJ Per T.P.Sharma, J. ORALJUDGMENT (30.06.2011) Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.01.2007, passed by the Sessions Judge Korba, District Korba (CG) in S.T.No.32/2005, whereby and whereunder the learned Sessions Judge, after holding the appellant No.l-Samaru guilty for commission of culpable homicide amounh'ng to murder of Chamaru Singh in sharing common intention with co-accused/appellant No.2- Ramsingh, convicted the appellant- Samaru uncter Section 302 (rf the IPC and sentenced for life imprisonment and fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for 6 months; and appellarrt f^Mil Ramsingh under Section 302/34 of the IPC and sentenced for life imprisonment and fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for 6 months. 2. The convictlon is impugned on the ground that w'rthout there being any iota of evidence sufficient for conviction of Uie appettants, the leamed Sessions Judge has convicted and sentenced the appellants as aforesaid mentioned and thereby committed illegality. 3. As per case of prosecution, on account of previous enmity between both the parties, who are relatives, they quarreted with each other. On 4.9.2004, at about 9.00 pm, appellants assaulted Chamaru Singh by axe and caused his instantaneous death. Incident was witnessed by wife of the deceased namely-Lohari Kunwar (PW-3) and Rathu Singh (PW-1). Wife of the deceased narrated the incident to Jotram Rattiiya (PW-8), Sarpanch, who went to Potice Station and lodged FIR vide Ex. P/12. Merg was recorded vide Ex. P/18. Investigating ofRcer left for thescene of occurrence and after summoning witnesses vide Ex. P1A, inquest over the dead body ofthe deceased was prepared vide Ex. P/2. Btood stained soil and plain soil was recovered from the spot vide Ex. P/14. Spot map was prepared vide Ex. P/20. Dead body was sent for autopsy to C.H.C. Kartala vtde Ex.P/19, where Dr. B.S. Narvariya (PW-15) conducted autopsyvide Ex. P/19A and found following injuries: 1. BIood was cominfl out from the nose. 2. Tongue was protruded between the teeth. 3. Incised wound of2 % x 1 % x 1 %" over the scalp comprising cut deep fracture of skull bone of 2 x 1 x 1 %". Brain matter was coming out. 4. Incised wound of2 x % x %" near the first injury comprising fracture of bone. Brain matter was coming out. 5. Abrasion over !eft cheek of 4 x 2 %". Left eye was btackened. 6. Abrasion over right neck 7. Abrasion over left hand and elbowjoint. !VIode of death was comma and death was homicidal in nature. Sealed cSothes of the deceased were seized vide Ex. P/4. During the course of investigation appellant Samaru made disctosure statement of axe vide Ex. P/6 and blood statned axe was recovered at his instsmce vide Ex. P/7. Disclosure statements of other accused persons were recorded and articles were seized. Case retating to Sadhram was sent to Juvenile Justice Board, being a juvenite and during course of trial Chamar Rai died. Statements of the witnesses wer®recorded under Section 161 of fte Code ofCrimfnal Procedure, 1973 (in shortthe Code). 4. After comptetion of investigation, charge sheet was flled before the Judicial Magistrate First Ctass Korba, who in tum, committed fte case to the Court of Sessions, Korba, whb cond.ucted the trial. 5. In order to prove the gullt'of ttie accused/appellants, prosecutlon examined as many as 15 witnesses. Accused persons were examined under Section 313 of the Code, in which, they denied ttie cireumstances appearing against them, innocence and false implication in crime in question was claimed. 6. After affording opportunity of hearing to the parties, Uie learned Sessions Judge convicted and sentenced the appellants as aforesaid mentioned. 7. We have heard Shri Abhay Tnrari, learned counsel for the appellants and Shri JALohani, tearned P.L. fbr the State, perased the judgment impugned and record of the trial Court. 8. Leamed counsel for the appellants vehemently argued ttiat both the parties are relatives; incident took place on account of previous enmBy. Evidence of Lohari Kunwar (PW-3) and Rameshwar (PW-9) nephew ofthe deceased is setf contradictory and they do not support ttie case of prosecution. In these circumstances, no reliance can placed on the evidence ofthose witnesses. Even ifthe evidence of both the witnesses considered in the llght of evidence of Rattiu Singh (PW-1),before whose house the incident took place, it will show that on account of previous enmity they were quarreling. Chamaru Singh tried to assautt Chamar Rai sm_ !i!tetii;tl: then his son i.e. Samam - appeltant came to the spot for saving his father. Ram Singh caught hold of Chamaru Singh and Samaru caused fatat injury to Chamaru Singh on his neck with the axe. This shows that Ram Singh was not having any intention to kill the deceased and appellants were also not having any intention to kill the deceased. With a view to save his father, Samaru has caused'injury to Chamaru Singh and thereby he has exercised the right of private defence and his act falls within ttie ambit of Sectlon 304 Part 1 of the IPC. He argued that the appellants are in custocty since 5.9.2004. 9. On the other hand, tearned counsel for the State vehemently opposed these argumentff.and submitted that alt the accused persons have caused homicidal death of Chamaru Singh in sharing common intention. Evidence of Lohari Kunwar (PW-3) and Rameshwar (PW-9) inspires confidence and trustworthy as also it is safe to rely for conviction ofthe appellants and Court betow has rightly convicted and sentenced the appellants under SecUon 302 ofthe IPC. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behatf of the prosecution. 11. in the present case, homicidal death as a result of fatal injury found to the deceased, has not been substantially disputed on behalf of the appellants, on the other hand, it is esteblished by the evidence of Dr. B.S. Narvariya (PW-15) and autopsy report Ex. P/19A and death was homicidal in nature. 12. As regards complicity of the accused/appellants in crime in question is concemed, conviction of the appellants is substantially based onthe evidence of Lohari Kunwar (PW-3) and Rameshwar (PW-9). As per evidence of Lohari Kunwar (PW-3), wife of the deceased, on account of previous land dispute, appellants came to her house and they dragged her husband to outside. As per her evidence, some accused were holding / '- y her husband and some have caused fatat injury with axe and chopped head. She was weeping and when other persons and Sarpanch came there. she narrated the incident to them then the Sarpanch went to Police Station and lodged report. Rameshwar (PW-9) has deposed that at the time of incident, he was accompanying Chamaru Singh; when they reached near the house of Cbamaru Singh, Chamar Rai, whose house is adjacent to the house of Chamaru Singh, abused Chamaru Singh and a quarret took place. After hearing sound, other accused pereons l.e. Ram Singh, Sadhram and Samaru came ttiere. Ramsingh caught hold of Chamaru Singh and Sadhram caught hotd of him. Samaru and Chamar Rai were holding axe then anyhow he rescue and save him from Uie grip of Sadhram and fled from ^ie spot. Chamaru Singh also tried to save himself but, he could not succeed and Samaru caused fatal injury by the axe over his neck and chopped his head. He went to Dileshwar. Prosecution has declared this witness hostile. Lohari Kunwar (PW-3) has deposed that Rameshwar was present in her house and aftersome Ume, he left her house. There is contradiction in her statement Ex. D/1 and Court statement especially, relating to enmity of the appellants in her house. In para 12 she has specifically admitted that accused persons are her neighbours. Defence has cross examined Rameshar (PW-9) at tength, where he has specifically deposed thatSamaru has caused fatat injury over the head of Chamam Singh and Ram Singh was holding the deceased, at that time, he was hold by Sadhram. There is contradiction in the statements of Lohari Kunwar (PW-3) and Rameshwar (PW-9) relating to the factum of accompanying by Rameshwar to the deceased Chamaru Singh, but the fact remained that both the appellants were present on the spot and have seen theincident. As per evidence of Lohari Kunwar (PW- 3) wife of Ihe deceased, accused persons have caused fatal injury by axe and chopped the head of her husband. As per evidence of Rameshwar (PW-9) at the time of quarrel, Chamar Rai was annoyed and he threatened Chamaru Singh that he will kill both of them and at the same time he heard the sound of quarrel. Ram Singh and Sadhram came there and caught hold of him and Ram Singh caught hold of Chamaru Singh »;-...siy::i;n ;s;. ^£^:^^:|51 -ihS' and thereafter, Samaru caused fatal injury to the deceased. Both the eye witnesses have seen the incident. One has seen it from his door and another has seen the incident from outside where the incident took place. There is no contradiction in the evidence of both the witnesses. As per their evidence, inilially quarrel took place on account of previous enmity. Chamar Rai threatened theh Ram Singh caught hold of Chamaru Singh and Sadhram caught hold Rameshwar (PW-9), but not with a view to save Chamar Rai, but with a view to kill the deceased, they quarreled and caused fatal injury and chopped the head of the deceased, resulting into his death. This is not a case, in which, Samaru has caused fatal injury to Chamaru Singh in exereis&Mof right of private defence to save his father, 11 .. . but he has caused iryury to'the deceased by dangerous weapon While Ram Singh was holding the deceased and facilitated him in causing such fatal injury, resulting into death ofthe deceased. This evidence is sufflcient for drawing an inference that Samaru has caused homicidal death of Chamaru Singh in sharing common intention with Ram Singh, who was holding Chamaru Singh at ttie time of causing such injury. The nature of injury, number of injury and the weapon used for causing the injury shows grave intention of the appellants to kill the deceased. After appreciating the evidence available on record, the learned Sessions Judge has righUy convicted and sentenced the appetlants as aforesaid mentioned. 13. On close scrutiny of the evidence, we do not find any iltegality or infirmity in the conviction and sentence of the appetlants, warranting interference by this Court. Consequently, the appeal being devoid of merits is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sbarma Judge Sd/- R.L. Jhanwar Judge sunita