r^ HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA SB HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT (IN JAIL1 CRIMINAL APPEAL No. 771/2005 Ram Singh Daharia, S/o Bande Singh Daharia, Aged about 38 years, R/o Station Para, Dhamtari, P.S. Dhamtari, Distt. Dhamtari (C.G.) Versus RESPONDENT State of Chhattisgarh, through Station House Officer, Police Station Dhaintari, Distt. Dhamtari (C.G.) CMMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973. Present:- Mr. Y.C. Sharma, Advocate with Mr. Vivek Rathore, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 05/04/2010) 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 20/7/2005 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 354/2002 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of deceased 1—-'~^:-' @ Ganesh @ Babla Tiwari convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 100/-. Conviction is impugned on the ground that without any clinching and credible evidence sufficient for conviction, Court below has convicted and sentenced the appellant as aforementioned and thereby coraniitted an illegality. The brief case of the prosecution is, on fateful night of 14/5/02 between 7.30 to 8 p.m. appellant who was having enmity with the Ganesh @ Babla Tiwari assaulted Ganesh @ Babla Tiwari by Kattar (big knife) and inflected repeated injuries over chest and other part of the body. Wife of the deceased PW1 Jamuna Bai immediately went to the Police Station and lodged First Information Report vide Ex. P-1. He was admitted in Dhamtari Christian Hospital for treatment. Hospital concerned informed the police vide Ex. P-3. On 14/5/02 during course of" treatment he died. On 15/5/02 death was intimated to the Police Station vide Ex. P-4. Marg was recorded vide Ex. P-5. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P-6, inquest over the dead body of the deceased was prepared vide Ex. P-7. Dead body was sent for autopsy to Govt. Hospital Dhamtari. PW15 2-^) 5. Dr. J.S. Khalsa conducted autopsy vide Ex. P-13 and found following injuries:- (i)-One stitched incised would of 12 c.m. up to muscle deep. (ii)-Stab wound of 5 c.m. with small opening over anterior aLixiliary line on chest. (iii) One incised wound of 8 c.m. over scalp and forehead. (iv)-2 small incised wound of 2 c.m. over forehead. (v)- One stab wound over chest, air bubbles were coming out. Injury No. 2 of the chest was extending up to lungs. Cause of death was asphyxia and death was honiicidal in nature. He was treated his bed head ticket is Ex. P-14C. Blood stained cloths ofthe deceased were seized vide Ex. P-9. Blood stained and plain soils were recovered from the spot vide Ex. P-10. During course of investigation accused was taken into custody he made discloser statement of Kattari vide Ex. P-12. Kattari was recovered at the instance of accused vide Ex. P-11. The doctor examined Kattari. Patwari prepared spot map vide Ex. P-19. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short 'the Code'). After completion of the investigation ^ ^ /^- ^, -^y '-•.^ y^y-^-1' ^ charge sheet was filed before the Chief Judicial Magistrate, Dhamtari who in turn committed the case to the Court of Sessions, Raipur. Learned Additional Sessions Judge, Dhamtari received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 17 witnesses. Accused was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false iinplication is claimed. Accused has taken defence that deceased scuffled with hira he was holding knife and during course of scuffle; the deceased received injury by the knife. After affording an opportunity of hearing to the parties learned Additional Sessions Judge, Dhamtari has convicted and sentenced the appellant as aforementioned. Learned counsel for the appellant Mr. Y.C. Sharma with Mr. Vivek Rathore and learned counsel for the State/respondent Mr. Sandeep Yadav, Dy. G.A. are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that in the present case deceased and accused both were quarrelling/ deceased was holding knife and in the ^ Course of quarrel deceased received injury which was fatal to him. Appellant has not intentionally caused any injury to the deceased. It was a case of accident therefore, appellant is not liable for commission of any offence. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that appellant have criminal antecedent and has intentionally caused repeated and fetal injury to the deceased and thereby caused his death. The Conviction is based on evidence of eyewitnesses who have fully corroborated the case of the prosecution. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of ante- niortem fatal injury has not been substantially disputed by the appellant on the other hand, otherwise also established by the evidence of PW15 Dr. J.S. Khalsa and autopsy report vide Ex. P-13 which reveals that fatal injury found in the chest and lungs and death was homicidal in nature. 13. As regard the complicity of the appellant in crime in question is concerned, the conviction is based on evidence of eyewitnesses PW1 Jamuna Bai, PW2 J 6 14. Ramesh Kumar Mishra, PW3 Chandrashekhar, PW7 Manoj Netam & PW8 Rama. PW1 Jamuna Bai wife of deceased has deposed in her evidence that at the time of incident at about 7 P.M. she came after closing fruit shop to her house. Her husband, accused Ram Singh and witness Shekhar Shinde were sitting in front ofthe house of Ram Singh, her husband throw the key of the house which she took and open the lock of her house. After some time she saw that, appellant and her husband were quarrelling. Appellant abuse her husband when her husband restrained him then appellant took out the big knife and assaulted on his abdomen, chest, head and neck, she shouted for help then Santosh and Manoj came there. They took her husband in Rikshaw to Christian Hospital (Bathena Hospital) then she went to the police station and finally lodged the First Information Report. PW2 Ramesh Kumar Mishra substantially corroborated the evidence of PW1 Jamuna Bai. PW3 Chandrashekhar, PW7 Manoj Netam 8& PW8 Rama have also substantially corroborated the evidence of PW1 Jamuna Bai. They have deposed in their evidence that appellant was quarrelling with deceased Ganesh @ Babla Tiwari, he was holding knife and he assaulted Ganesh @ Babla Tiwari by knife when they took him to /»'••: v 1 y L- Bathena Hospital, Dhamtari. PW2 Ramesh Kumar Mishra has also deposed in his evidence that on account of altercation Ganesh @ Babla Tiwari came with bamboo stick and accused came with Kattar, both the persons quarreled; Ganesh @ Babla Tiwari assaulted Ram Singh by stick and again assaulted the appellant by stick then appellant caused repeated injury upon Ganesh @ Babla Tiwari. 15. Defence has cross-examined these witnesses in detail, there is some contradiction and oinission in their statement but they had struck to their version relating to the fact that appellant has caused repeated injury by Kattar upon the deceased. According to evidence of these witnesses appellant and deceased were neighbour. Appellant was abusing and using filthy language then deceased tried to stop for using filthy language then appellant came with big knife {Kattar) and deceased came with bamboo stick. There is no evidence of injury found over the body of the appellant but appellant has caused repeated injury to the deceased including the injury on lungs, which was fatal for the life. Length of the sharp part of the Kattar is 21.05 c.m. = more than 8 inches. Injury found over the body of the deceased and manner in which it was ^j^ftsi.^g' ^7^ ~^%, ''% .' '^rf' ^^:-^r r2>i-) clearly shows that appellant has caused injury with intent to cause death of the deceased. 16. After appreciating the evidence adduce on behalf of the prosecution and considering tiie defence of the accused/appellant learned Additional Sessions Judge, Dhamtari has convicted and sentenced the appellant as aforenientioned. The conviction of the appellant is based on credible and clinching evidence sustainable under the law. Learned Additional Sessions Judge, Dhamtari has not committed any illegality in convicting and sentencing the appellant. 17. For the foregoing reasons, we do not find and substance in the criminal appeal. Consequently, this criminal appeal is liable to be dismissed and is hereby disinissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge