ip'.^an* HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARIV1A AND HON'BLE MR. R.L. JHANWAR, JJ. CriminajAppeaJ No,991 QL199A APPELLANT: ChandrabhanSin'gh Versus RESPONDENT: State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge th Postfor Dronouncementof judgment on 4l"May, 2010 Sd/- T.P.Sharma Judge tf'i1 HIGHCOURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE NIR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) Criminal Appeal No.991 of 1991 Chandrabhan Singh son of Shri Bhagirathi Paw aged about 22 years, resident of Gullidand, Police Station Marwahi, distt. Bilaspur. Versys State of Madhya Pradesh (now Chhattisgarh) RESPONDENT: {Criminalappeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Arun Kochar, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. JUDGMENT (4th May, 2010) The iudamentof the Courtwas delivered bvT.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 12-10-1991 passed by the Sessions Judge, Bilaspur in Sessions Trial No.150/91, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of homicidal death amounting to murder of Brihaspatia Bai, convicted the appellant under Section 302 of the I.P.C. and sentenced himundergo imprisonment for life. f 2. Cpnviction is impugned on the ground that without any clinching and credible evidence, the trial Court hgs convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that ori the fateful day of 26-7-1990 at . ^'aibout 2 p.m. pn account of some dispute relating to crop, the appellant ^T 2 ^(^. "ahd Brihaspatia Bai (since deceased) went to the field, the appellant chased her and assaulted with axe over her head as of result she fell down. Her husband Ratiram (PW-1) reached near Brihaspatia Bai, she was agonizing and she died. Ratiram (PW-1) went to the Police Station and lodged F.1.R. vide Ex.P-1. He also lodged merg vide Ex.P-2. After summoning the witnesses vide Ex.P-5, inquest over the dead body of Brihaspatia Bai was prepared vide Ex. P-6. Dead body was sent for autopsy vide Ex.P-7. Dr. Ramesh-Singh Kachhwaha (PW-12) conducted autopsy vide Ex.P-7A and found following injuries: - (1)0ne lacerated wound over scalp on right side tempero parietal region of 7 c.m. x 4 c.m. x 4 c.m. (2) Depressed fracture of right side of temporal and parietal bonesof skull, bone was crushed and broken into small pieces. (3) Brain beneath the injury was lacerated. (4) Lacerated wound on left below of 1 c.m. x % c.m. (5) Lacerated wound on right knee of 1 c.m. x % c.m. (6) Lacerated wound on right side ofwaist of V-i c.m. x % c.m. (7) Abrasion on back of right hand of 1/2 c.m. x V-i c.m. Mode of death was coma and death was homicidal in nature. 4. Spot map was prepared by the Patwari vide Ex.P-4. Blood stained and plain soil, and blood stained axe lying near the place of incident were seized vide Ex. P-9. Spot map was prepared by the Investigating Officer vide Ex.P-10. The accused was taken into custody, he made discloser statement of blood stained gamcha vide Ex.P-11 and the same was recovered at the ihstance of the accused vide Ex.P-12. Blood stained / clothes of the deceased after autopsy were seized vide Ex.P-13. 5. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. and after completion of investigation, charge sheet was filed befpre Judicial Magistrate First Class, Pendra Road, who committed the '., <;ase to the Court of Sessions, Bilaspur. "-•^ 6"^l'ff68rder to prove the guilt of the appellant the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted & sentenced the accused in the aforesaid manner. J1> 8. We have heard learnedcounsel for the parties, perused the judgment and record of the trial Court. 9. Mr. Arun Kochar, learned counsel forthe appellant, vehementlyargued that in the present case evidence of the prosecution witnesses is sufficient to create doubt that the app6llant may have committed the offence, but it is not sufficient for drawing any definite inference that the appellant has committed the offence, there is much distinction between 'may be true' and 'must be true'. In the present case, no body has deposed that he has seen the incident or before them the accused has caused injury to fhe deceased. At the time of incident there was heavy rain, weather was cloudy, visibility was very weak and the witnesses were not in a position to identify the person or see the person or the incident. Learned counsel placed reliance in the matter of Hallu and others v. State of Madhya Pradesh (AIR 1974 SC 1936) in which the Apex Court has held that normally when a witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is thsft the blunt side of the weapon was used. If that be the implication of weapon used, Ihe Court should presume that in case of sharp-edged weapon, sharp part has been used. Learned counsel fyrther placed reliance inthe matter of Khatri Hemraj Amulakh v. The State pf Gujarat (AIR 1972 SC 922) inwhich the Apex Cdurt hastield fr^hat plausible explanation furnished by the accused relating to his ^ a. V3J . ,, . 4 ;t»te-!a"!s€ubsequentconduct in running with the blood-stained clothes to police station would be treated as reasonable explanation. 10.0n the other hand, Mr. Rakesh Kumar Jha, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, opposed the appeal and submitted that all the witnesses have identified the accused and clearly deposed that the appellant is the person who has caused injuries to the deceased, their evidence is sufficient for conviction of the appellant. ~ . 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12.1n the present case, homicidal death of Brihaspatia Bai as a result of ante-mortem fatal injuries has not been substantially disputed on behalf of the appellant, otherwise also established by the evidence of Dr. Ramesh Singh Kachhwaha (PW-12) and autopsy report Ex.P-7Awhich reveal that fatal lacerated wound including crushed fracture of bone of scalp Was found on the body of the deceased and the death was homicidal in nature. 13.As regards complicity ofthe appellant in the crime in question, as per the evidence of Ratiram (PW-1) - husband of the deceased, Kotwar has informed him that somebody has killed his wife with axe, then he went to the Police Station and lodged F.I.R. vide Ex.P-1. Rambai (PW-2) has deposed that the accused had thrown the deceased on ground in the field, then sh"e iaw the incident and the accused fled from the spot, blood ^ , wascoming from the head of the deceased. Jhoolan (PW-3) who was working in the field has deposed that the accused assaulted Brihaspatia Bai and fled from the spot. Chameli Bai (PW-4) has deposed that she i -, has s^en the accusedwhile he was running beside Brihaspatia Bai, they :i^i 1 /ere working in the field, they frightened and ran from the field and lastly Brihaspatia Bai died. Bobby (PW-5) has deposed that Brihaspatia Bai was lying in the field and the accused ran away from the place of incident i.e. from the place where Brihaspatia Bai was lying and finally Brihaspatia Bai died. Vedmati (PW-6) has deposed that the appellant came near Brihaspatia Bai and assaulted her, but she cannot say whether the accused has-assaulted her by fist or axe, the deceased fell down and the appellant ran away from the spot. Charki Bai (PW-7) has deposed that Brihaspatia Bai was lying in the field and the appellant was running from the place of incident. Dashodiya Bai (PW-8) has stated the same thing. 14.AII these witnesses have admitted in their cross-examination that it was cloudy day and there was heavy rain fall. They have further deposed that visibility on account of clouds and heavy rain, was weak. All these witnesses have specifically deposed that they have seen Brihaspatia Bai lying in the field, the appellant ran away from the spot i.e. from fhe place where Brihaspatia Bai was lying and thereafter, they found injury on the head of Brihaspatia Bai. The incident took place at 2 p.m. on broad day light. Evidence of these witnesses clearly reveal that although it was cloudy and rainy day, but they have seen that Brihaspatia Bai fell down and died as a result of injury, and the appellant fled from the spot i.e. frqm the place where Brihaspatia Bai fell down and was lying. 15.As per the/"evidence of Dr. Ramesh Singh Kachhwaha (PW-12), lacerated wound was found over head of Brihaspatia Bai, other lacerated wounds of small size were found over other parts of body, hand & leg and abrasion bn back of right hand which may be caused by falling on a ': roughsurface. As perthe evidence ofthe prosecution, the appellarit has used axefor eausing injury, b'ut no incised wound was noticed bythe •y & 6 roctor. In other words, the doctor has found lacerated wound on scalp of 7 c.m. x 4 c.m. x4 c.m. size, the shape of which is rectangle having 4 c.m. depth. Ex.P-4, the spot map prepared by the Patwari, reveals that the witnesses were present at a distance of 90-100 ft. from the place of incident. Day time visibility and identity of the assailant & the deceased are not impossible even ori cloudy and rainy day. 16.As held by the Apex Gourt in the matter of Hallu (supra), in case of weapon used, normally the Court should presume that in case of sharp edged weapon, sharp part ofthe weapon has been used. 17.1n the present case; virtually the witnesses have not clearly stated that the accused has used axe. Axe was lying near the place of incident and the accused fled form the spot. Evidence of the witnesses and even the evidence of husband of the deceased Ratiram (PW-1) reveal that after the death of Brihaspatia Bai, the witnesses are reluctant to state the truth, but their evidence clearly establish that Brihaspatia Bai was alive, she was going to the filed at the time ofincident and the accused was also near Brihaspatia Bai who is his elder mother (badi maa). The witnesses had seen that Brihaspatia Bai fell down and was lying in the field and the accused fled from the spot. Brihaspatia Bai died as a result offatal injury found over her head. This is not the case of accident. The deceased was elder mother (close relative) of the appellant. In case if sdme other person has caused injury or injury was caused otherwise, it would be the? natural conduct of the appellant to try to save his close relative and take her for tregtment, but instead of doing so, the accused fled from the spot. If these circumstances are considered together, the only hypothesis would be possible that the appellant was the person who has caused injury to the deceased. Definitely, in case of use of axe t ^0'rmally, the Court should presume that the accused has used sharp- -^ ^ '-'-^"^ SL. " 'l. 'v"93^ S ~-'st^ 1 7 Vfe""^"edged part of the axe. But considering the evidence of other witnesses, only on the ground that no incised wound was found on the body of the deceased, evidence of the aforesaid witnesses and circumstances proved against the appellant cannot be rejected. The witnesses had seen the incident from a distance of 100 ft. There may be circumstance that the accused has cause'd injury by blunt part of the axe. The case of Hallu (supra) is distinguishableon facts tothat ofthe present case. 18.As held by the Apex Court in the'matter of Khatri (supra), the accused has not offered any explanation that why he has fled from the place of incident, especially when his elder mother received fatalinjury. The case of Khatri (supra) is also distinguishable on facts to that of the present case. 19.Evidence/circumstances proved against the appellant, on behalf of the prosecution, are sufficient for drawing definite inference that the appellant is the person who has caused fatal injuries to the deceased. 20.As regards the question of motive, as per the evidence of the prosecution, the appellant & the deceased were close relatives i.e. the deceased was wife of elder brother of father of the appellant and the altercation took place on account of dispute relating to planting of paddy crop (rop). The accused assaulted single blow that too from blunt part of axe and having opportunity to kill the injured by using sharp-edged part of axe, the appellant after throwing the axe fled from the spot. The deceased w^s alive till her husband came to the spot and she was agonizing. Although the injuryfound overthe head ofthe deceasedwas dangerous, but it shows the intention of the appellant that while causing injury the appellant was having knowledge that by his act the deceased may die, however, he has not caused any injury with intent to corrimit :^.:^cttlpable hornicide amounting to murder of the deceased. Considering -•-Fy'-y^ '^t ,^' ?%-.. ^, h. 8 s,r^.' ^. •an-sthe injuries and weapon used, the act of the appellant squarely falls within the ambit of Section 304 Part-1 of the I.P.C. 21. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302ofthe I.P.C. is altered to Section 304 Part-1 of the I.P.C. and the appellant is hereby sentenced to undergo R.l. for ten years. Previously, the appellant was in custody from 28-8-90 to at least till 27-5-91 and from 12-10-91 to 26-2-92. The appellant is entitled for set off as per rules. He is on- bail, he shall surrender immediately before the Sessions Judge, Bilaspur in S.T.No.150/91 to serve the remaining sentence imposed upon him. Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^f •A:'> 1