HIGH COURT OP CHHATTISGARH AT BILASPUR (Division Bench) CORAM : Hon^ble Shri Vijay Kumar Shrlvastava, 8s Hon^ble Shri Dhirendra Mishra/J. ^ Criminal Appeal No.467/1999 Appellaat Barat Ram, s/o. Madhoram Gond, Aged about 32 years, Occupation - Cultivation, R/o. viUage KaharchuaD., PS: LaUunga, Dist. Raigarh. VCTSUS Respoadeiit State ofM.P. through SHO, PS, Lailunga, Dist Raigarh. Present: Ms. Nirupama Bajpai, learned coiuisel for the appellaat. Mr. M.P.S. Bhatia, counsel for the respondent/State, JUDGMENT (Dated 25/03/2006) Per Viiav Kumar Shrivastava. J. This appeal under Section 374(2) of the Code of Cnmmal Procedure is directed agamst the judginent of conviction and order of sentence dated 20/01/1999 passed by IInd Additional Sessions Judge, Raigarh ia S.T.No. 124/97 by which fhe appeUan.t has been held guUty for coianiittiag fhe raurder of his own brofher i:<:;?;::;;';^:^'';::::^^^'!?;';.l':?.';: a \ar Chamar Sai aad was sentenced to undei^o imprisonment for Ufe under Section 302 offhe I.P.C. 2) Appellaat Baratraxii and deceased Chamar Sai were brofhers and both Uved m fhe same house. They were in mimical terxas on the score ofpartition oftheir laad and house. Alfhough fhey were living in coinmon roof; but ia separate rooias. On 24/05/ 1997 a dispute arose over fhe electaicity meter. In fhe evening when deceased retumed from his field, agaia some altercation took place betweea fhem, Deceased Chamar Sai ran towards fhe gaUy from his hoiise aad the appellant foUowed him holdmg an iron made weapon in his hand. AppeUaiit caught fhe deceased, threw him on fhe ground, stood over his chest aad byjumpiag aad dacicmg over fhe body of fhe deceased started pressiag his neck wifh foot. Witaess Prifhvilal and Ichcharam came fhere axid rcpelled fhe appellant from fhere, By that time Rampyari, wife ofdeceas^l and one witaess Mayaraoi also came to the spot and gave drinkmg water to deceased, The appeUant agaia came back running aad agam stood over fhe chest of the deceased saying he would kill him, He jumped on the neck of tiie deceased and kicked his testicles, The deceased died on the spot. The appeUaat afker fhe deafh of deceased Chamar Sai, fled away from fbe scene of occurrcnce. 3) Prifhvflal who witaessed fhe incident lodged fhe j&rst inforaiation report in PoUce Station Lailunga. Oa his report fhe mvestigation took place. Inquest rcport of deceased Chamar Sai was prcpared by fhe Investigating OflEicer. Dead body of Chamar Sai was sent for autopsy to fhe Community Health Centre, (D LaUunga. Dr. Shailendi^ Upadhyay who conducted ftie postaiortem has described fhe iajuries found on fhe body of deceased Chaxaar Sai and opiaed fhat cause of death was asphyxia due to corapression of chest aad fhe deafh was hoinicidal in nature. Durmg uivestigation control aad bloodstained soU aad one towel were recovered froui the spot aad the same were seized. One knife was seized from the appeUao.t. Statements of witnesses were recorded aad after coiapletion of iavestigation, chaUaa under Section 302 offhe I.P.C., was filed ia fhe Court ofJudicial Magistrate First Class, Katghora, who conimitted fhe case to the Court of Sessions for trial. 4) Charge under Section 302 of the IPC was fraaied agaiast fhe accused/appeUant aad the same was read over aad explamed to hiai who abjnred fhe guilt. AppeUant claimed hiaiself to be ianocent aad pleaded fhat he has been falsely mipUcated ia tlie crime. Leanied trial Court after due appreciation of the evidence avaUable on record held fhe appellaat guUty of offence punishable under Section 302 ofthe IPC , therefore, convicted and sentenced. 5) Learaed trial Court after close scnitiny of fhe evidence of Dr. Shailendra Upadhyay (PW/10) aad due consideration of the autopsy report (Ex.P/10) held fhat fhe deafh of Chaaiar Sai was hoinicidal ui nature. Dr. ShaUendra Upadhyay (PW/10) in. his evidence has deposed fhat on postmorteni examination of fhe body offhe deceased Cham.ar Sai, he found fhe foUowing iajziries on his body. 1) abrasion over neck and chest, abrasion found on 'l chest were in length 10V and breadth at one end 4^ at another end 3)) and at ihe middle part 4s9; 2) one lac^rated wound on left shoulder admeasuring 1" x 2S> musde deep; 3) abrasion on rightlower chest in the size of29 x2}>; 4) abrctsion on righi sa'otum skin in the size of 5" x619 . blood clots were present undemeath the skin ofneck and whole peritoneum caviiy was filledwiih blood. ^ The Doctor has further deposed fhat left third rib, fifth rib aad fhe right fhird rib were found fractured. In his opiaion the cause ofdeath was due to asphyxia due to compression ofchest. The above evidence does not suffer froni aiiy mfiroiity which may lead to disbeUeve it. AppeUaat has not disputed the death of Chainar Sai to be homicidal even from the oral evidence aad fhe report Ex.P/10, it is estabUshed fliat deceased Chamar Sai received vadous injuries aad died due to asphyxia as a result of iajuries caused to hmi aad his death was hoiaicidal in nature. 6) Learaed trial Court relying upon the statements of the eye- witaesses held fhat the iajuries found on fhe body of deceased were caused by the appellaat who haviag fhe knowledge that the injuries caused by him., would cause fhe deafh of deceased Chaniar Sai has caiised fhose iajuries aiid accordiagly held that ftie appeUant caused fhe deafh of Chaniar Sai uitentionally by uiflicting various irijuries. 7) PrithvUal (PW/1) who is fhe aufhor offirst iaformation report (Ex. P/ 1) ia his statenient has deposed fhat he saw Chainar Sai lyuig on fhe ground aad appeUant pressing his neck wifh his foot. Ip '^ Chaniar Sai was raisiag alarm, he catled Ichcharaiii aad fhey repeUed fhe appeUaat froin therc aad gave drmkiag water to Chainar Sai. By that tiLme Mayuaram and Rampyad also caine fhere. The appellaat agam carae on fhe spot aad assaulted Charaar Sai wifh his foot on his chest. The appeUaat also kicked fhe testicles of the deceased fhrice wifh his foot. Chamar Sai died on the spot. Although Ichcharaoi (PW/2) has been declared hostile by fhe proseczition, yet froin his stateraent, presence of deceased aud appellant on scene ofoccurrence is evident. Raiapyad (PW/7) wtfe of the deceased, ia her evidence deposed fhat tiie appeUaat staadiag over the chest of her hnsbaiid juinped several thnes. Although she inade exaggeration regardiag one assault which is said to have been caused by fhe appeUaat wifh axe but fhat alone is not sufficient to discredit her whole evideuce which is diily corroborated by ofher evidence on record aad not mfirm so as to discredit it, Mayaraai, (PW/9) has also stated in his stateiaent fhat fhe appeUaat standiag over fhe chest of deceased was pressiag his chest and was also juiaping over the chest of Chaniar Sai. AppeUaat Baratrain also kicked fhrice on fhe testicles of Chamar Saiwifh his foot aad Chamar Sai died on fhe spot. 8) So far as evidence of Prithvilal (PW/1), Rampyari (PW/7) aad Mayarain (PW/9) which relates to caiising injiiries by the appeUaat to the deceased is conceraed, fhe sanie does not suffer froni such iafinnity which niay lead to disbeUeve tfaeir version. The oral evidence is supported by the report ofEx.P/1 i.e., FIR aad also fiiids support froni fhe Eaedical evidence of Dr. Shailendra Upadhyay (PW/10) and his report(Ex.P/10). Thercfore, it is ^ established fhat fhe mjziries caused to deceased Chamar Sai resultbig to his deafh were caused by fhe appeUant 9) From fhe evidence on record, it is evident fhat tiie appeUaat stood over the chest of deceased Chamar Sai and mjured him by jumpmg and dancmg over his chest, when he was repeHed aad fhe witaesses were trying to save fhe Ifcfe of Chaaiar sai, fhe appeUant agam came back aad rode agaia over fhe chest of deceased and kicked his testicles as a rcsidt of which Chaniar Sai spontaiieozisly succuxiibed to the uyuries, Thus, from aU fhese evidence and circurastaiices, it has been establlshed fhat fhe appenaiit knowingly and mtentionally cazised various mjuries fhat too on fhe vital parts of fhe body of deceased Chamar Sai aad fhiereby kflled his own brofher. 10) In view of fhe foregoing reasons, we are of the considered opiaion fhat fhe iaipugned judgmeat of the trial Court convicting aad sentencmg fhe accused/appeUant under Section 302 of fhe IPC for causing death of his brother iatentioaally, does not suffer from any itlegality or iafirmity. The appeal beiag devoid of merits desewes to be dismissed. 11) In fhe result, fhe appeal fails and is hercby dismissed. Sd/- V.K. Shrivatava Judge Sd/- Dhirendra Mishra Judge Khan/ raju