.<ie? HIGH COURT OF GHHATTISQARH AT BILASPUR Criminal Appeal No.253 of 2006 DivisionBench:- Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.L..IHANWAR, Jd. APPELLANTS (In Jail) 1. 2. 3. RESPQNDENT Mahesh Satnami S/o Puniram Satnami, Aged about 27 yeare, Occupation- Rtokshaw driver, R/o Ambedkar NagaF, Raigarh : Bhainra @ Ghurawa S/o Puniram Satnami, Aged about 33 yeats, Occupation-Labour, R/o Ambedkar Nagar, Raigarh Dileep Baghel S/o Sudram, Aged about 20 years, Occupation-Porter, R/o Amtedkar Nagar, Raigarh (G.G.) Versus State of Chtattisgarh, through P.S.Kotwati, Rasgarh (C.G.) (CRIvlINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr.S.K.Tiwari, counsel forthe appellants. Mr.Sandeep Yadav, Deputy Govemnient respondent/State. Advocate for the (JUDGMENT1 (Passed on 28"' February, 2011) T.P.Shanna, J.;- 1. Challenge in this appeal Is to the judgment of convictlon & order of sentence dated 3.3.2006 passed by the Third Additional Sesstons Judge, Raigarh in S^slons Trial No.120/04, whereby and whereunder tearned Thlrd Additlonal Sessions Judge after holding the appellants guilty for commisston of culpable homicide amounting to murder of Ram Prasad Chouhan and causing simple injury to Laxmi Prasad in sharing common Intention convicted them under Sections 302/34 and 323/34 of thel.P.C. and sentenc®!to undergo Imprisonment Tor life and to pay fine of Rs.100/- ^- In default of payment of flne to further undergo R.l. forone montti and R.l. for one year. 2. Conviction !s impugned on the ground that without there being any iota of evldence, the trial Court has convicted and sentenced the appeltents as aforementioned and thereby commftted illegaltty. 3. As per case of the prosecution, on the fateful day crf 17.2W4 at about11 p.m. unfortunate deceased Ram Prasad Chouhan was present in his house, he cfemanded mea! from his daughter, appellante Mahesh and Bhaira, next door nelghbours demanded more land from Ram Prasad Chouhan and thereafter Mahesh, Diteep and Bhaira assaulted him by ^ stick and hook (object of tifting heavy bag containing graln). Laxmi Prasad (PW-8), son of the deceased, who was present In hls trouse trted to save his father, then appellant Bhaira also assautted him.they made repeated a^ault to Ram Prasad Chouhan. Ram Prasad Chouhan was examined by one doctorwho declared him dead. Laxml Prasad (PW-8) went to the Police Station Kotwall Raigarh, one and half kilometers avay from the place of incident wlthin three hours of the ineident and lodged the F.I.R. vide Ex.P/17. Merg was also recorded vide Ex.P/16. Investigattng offieer left for scene of occurrence and after summontng the witnesses vide Ex.P/14, inquest over dead body of Ram Prasad Chouhan was prepared vide Ex.P/15. Dead bodyof deceased Ram Prasad Ghouhan was sent for autopsyto K-P.Hospital, Raigarh vide Ex.P/10A where Dr.Pawan Kumar Agrawal (PW-4) conducted autopsy vide Ex.P/10 and fbund following injuries:- (i) Lacerated wound of3 cm. x 2 cm. over left teg. (il) Lacerated wound of 2 cm. x 1 cm. over right leg. (iii) Abrasionsof3cm.x2cm.overleftl<nee. (iv) Svrelling of 8 cm. x 8 cm. over left cheek. (v) Swellir^ of 6 cm. x 5 cm. over left side of neck. (vi) Swelling of 3 cm. x 2 cm.over upper part of teft eyebrow. (vtt) Swelllng of 6 cm. x 5 cm. over left side ofthe chest. (viii) 5th and tf" left ribs were found Tracture. (K) Left lung was collapsed. Cause of death was shock. Injured Lawni Prssad was also sent for medicat examination. Spot map was prepared by Inve^gatir^ offlcer vide .49"; ^ ^,..-^^^^ \. ^^ '^»s^ ^: Ex.P/19. During the course of investigation, accused Mahesh was taken into custody, he made disolosure statement of stid< vlde Ex.P/2 and same was recovered at his Instance vide Ex.P/5. Accused Dileep was taken Into custody, he made disclosure statement of heavy wooden club (bahangi) vlde Ex.P/3 and same was recovered at his Instance vide Ex.P/6. Accus^l Bhaira was taken into custody, he made disclosure statementoT Iron object (hook) vide Ex.P/4 and same was recovered at his tn^ance vlde Ex.P/7. Bloodstained paint of the deceased was selzed vlde Ex.P®. Bloodstained palnt of appellant Bhaira was selzed vide B(.P/9. Patwa'i also prepared spot map vide Ex.P/12. 4. Statements of the witnesses were recorded imder Sectlen 161 of the Code of Crtmlnal Procedure, 1973 (hereinafter referred to as 1;he Code') and after completion of investlgation, charge sheet was flled In the Gourt of Chief Judicial Maglstrate, Raigarh, who in tum Gommltted the caseto the Court of the Sessions, Raigarh from where ttie Thipd AcidM;ional Sessions Judge, Ralgarh received thecase on transfer fOTirial; 5. In order to prove the guilt of the accused/appeltants, the prosecution has examined as many as ten wftnesses. Statements of the acoused were also recorded under Section 313 of the Code, In vrtiich ttiey deniedttie circumstancss appearing agalnst them and pleaded innocence and false implicatlon in thecrime In question. 6. After affording opportuntty of hearing to the parties, the Third Addlitional Sessions Judge has convicted and sentenced the appellants as aforementioned. 7. We have heard Mr.Santosh Kumar Thwari, counsel for e appellants and Mr.Sandeep Yadav, Deputy Government Advocate for the State, perused the judgment impugned and record of the trlal Court. 8. Leamed counsel for the appellants vehCTnenlty argued that in the preserrt caseconvtetion is substantlally based on evidence of Laxml Pra^id (PW-8) and Ku.Kavita (PW-9), son anddaughter of deceased Ram Prasad Chouhan.As per evidence of LaMnl Prasad (PW-8), he is injured witness, but proseGution has not examlned the doctor who haa examfned the injured. In absence of any proof of injury on the body of Laxmi Prasad (PW-8), it is difficult to presume that he was present at the time of Ineident ,;'''.' ^^.: and he has recelved Injury during the course of incident. Laxml Prasad (RW-8) and Ku.Kavita (PW-9) are son and daughter of the cteceasect and ar& interested witnesses. Their evidence are not safe to rely wittwut further corroboratton from independent sources. Even otherwise their evidence are self-contradlctory and not corroborated by F.l.R. Ex.P/17 lodged by Laxmi Pra^id. As per eviderwe of Laxmi Prasad (PW-8), firetly appellant Bhaira alone came to his house and assaulted Ws father by axe, thereafter appetlant Bhaira assaulted hlm by hook. While hls father was going towards vltlage for caltlng other persor®, then all app^lants assaulted his father in a tane, but aforesaid evidence is not Gorroborated by medical ev'idence or evidence of Ku.Kavita (PW-9) and F.I.R. B(.P/17. No injury caused by sharp edged weapon i.e., axe has been nottoed by autopsy surgeon. Medical evidence is not in consistent with ocular evidence; even ocular evidence of Laxmt Prasad (PW-8) and Ku.Kavita (PW-9) are not In consfetent. Laxmi Prasad (PW-8) and Ku.Kavita (PW-9) may be treated as partly reliable witnesses but their evidence arenot safe for drawing deflnite concluslon that the appetlants have cunmitted the aforesaid offence. Therefore, the appellants are endtled for aequitteil on the ground of benefit of doubt and insufflelency of evidence. ^ 9. On the other hand, leamed State counsel oppreed ttie appeal and argyed that although there are some discrepancy and in consi^ncy IB the evidence of Laxml Prasad (PW-8) and Ku.Kavita (R/V^) but aibstsuitially they have corroborated and deposed that allthree pereans <ame to theh- house and have caused injuries to their father resulting into hls deatti and also to Laxmi Prasad, their evidence are natural, their presence at the time of Incident are natural, their evldence cannot bediSGarded on the ground of some discrepancies, contradictions and omisstons. Learned counsel Turther argued that after appreciating the evidenceavallstole on record, leamed trial Court has rightly convteted and senten d the appellants as aforementioned. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homlcidal death as a result of injuries found over the body of Ram Prasad Chouhan has not been substantially disputed on behalf of the appellants, on the other hand, atso established by the w evidence of Dr.Pawan Kumar Agrawal (PW-4) and autopsy report Ex.P/10 and death of Ram Prasad Chouhan was homicidat in nature. ' 12.As regards the compliclty of the accused/appellants In Grinrte tn questlon, convictton Is substantially based on evidence of ey©witnessesof LaB<mi Prasad (PW-8) and Ku.Kavita(PW-9), son and daughter of decea^d Ram Prasad Chouhan. Incident took place at 11 p.m. at night, their presence In their house were not unnaturat. Appetlantsare ndghbours, their presence In their house or nearthe house ofthe deceasedwere also not unnatural, although prosecution has not examlned the doctor relaUng to Injury of Laxmi Prasad (PW-8), but he has cteariy deposed that appellant Bhaira has caused injury by hook upon hls fordiead. Same !s supported by the evidence of Ku.Kavita (PW-9). Defence has cross- examlned these wltnesses at length but both the witnesses have specifically deposed that appellant Bhaira has caused injury to Laxmi Prasad. These evidence are sufficient for drawing inferen^ that appellant Bhaira has caused slmpte injuryto Laxmi Prasad. 13.As per evtelence of Laxml Prasad (PW-8), firsUy Btaira came to his house and discussed refating to some land, thereafter he went back to te houae and came with axe and assautted hls father by axe over his shoulda-, at that time appellant Mahreh was standing beside Bhaira. As per pwa 3 ef hls evidence, Mahesh caught hold his father Ram Prasad and he caught hold Bhaira to avoid further quarrel, then Bhalra pushed him in the floor and assaulted him, thereafter his father went towards lane, then all appellants and their family membere came and assauBed his fattier, they also threatened him and hls sister Kavita. Even after causing injury to his father they restrained them for taktng medical ald. First part of hte depositlon relating to assautt made by axe has not been corroborated by Ku.Kasrita (PW-9), but as per her evidence all the appetlants assautted her father in a lane. Defence has cross-examined these wltnesses at length. Laxmi Prasad has deposedin para 8 of cross-examinatlon that initidly appellant Mahesh was not quarrel^ wnth his fsrther. As par para 10 of Ws cross-examination, appellarrt Mahesh was hoiding sttok, appellant Dileep was holding one hooky weapon and was moving around such weapon.tn para 12 of his cross-examinatlon he has admitted that at the time; ofr incident there was dark and has also admBed that one mercury IglTtwas available. In para 13 he has also admitted that there was no dispute with -y s^essS y^gss^^ 6 appeliant Dileep and initially appellant Dileep has not quarrelgd with hls father, he was holding one weapon iike katedar and has caused singte blow over the head of his father. In paras 6 and 7 of cross-examlnation of Ku.^vita (PW-9),she has specifically deposed that he has seen the inGident and appellants have caused injuries to her father. • 14.Evidence of both the witnesses reveal that Initiaily appellant Diteep has not partlcipated in flie quarrel, he was holding weapen ofspecific nature and as per evidence of Laxmi Prasad (FW-8) he hae caireatsingle Injuiy over the head of his father. Injury Nos. 4, 5 and 6 are swrelUng found over the neck and chest above left eyebrow. Except these injures n®otier injuries were found over the head of the deceaswi. VirtiBliystnjury No.? found over the chest and fracture of ribs was tatai injury. No any Injury of axe has been noticed. Injuries No, 1 to 3 were simpte in nature. Except injury No.7, other injuries were atso simpie in nature. 15.As per evidence of Laxmi Prasad (PW-8) and Ku-Kavtta (PW-9). inckient took place on account of demand of some more tand, initially appeaiant Bhaira was quarreled and appellant Mahesh was present withBhaira, they were hoiding stick and they have caused repeated injuri^ to d«;eased Ram Prasad Chouhan. Evkience of Laxmi Prasad (n/V-S) and Ku.Kavita (FW-9) are sufficient to establish the fact that appellant Diteep has not shared common intention in causlng any injury but suddenly at the time of quarrel he has caused single blow resulting into three h'ljuriestover neek, cheek and near eyebrow of the deceased by iron weapon whlch te dangerous weapon and ttiereby he has caused simpte injury by dangerousweapon. . 16.1n absence of any other evidence, tt.is difflcutt to hotd that appellant Dileep has sharMl common Intention In causing injury to the cteceased, but repeated injuries caused by appellants Mahesh and Bhalra by stlck to deceased Ram Prasad Chouhan resultlng into his death cleariy established that they have caused homlcktal dMth of the dweased in sharing common Intention. 17.As regards the questlon of motive, in case of direet evidence motive losses lls Importance, even otherwtse, motive only aidsin crimhiallty and can be inferred on the basis of nature of Injury, kind ofweapon used, part ofthe body effected and other simllarcircumstenees. II VEd roesuqtoas jspun papiAuoo aje Ejreyg pue yssyei^ siueiieddv •auofaapun Apeaj|e poyad eyi '•s-i pousd teipoisno 841 oi (ueujuosixluii 0} psoua»uass!eq 'jeeA euo ueift ajoiu inoqe joi 'goDZ'Q" tZ IIB SOOZ'S'e aouis pue saK't''!. IIB frOOZ'Z'S 83U(S Apoisno u| sem ey '•0-d'l aMl p fze yoipeg Japun pstoiAUoo si daaiia tueiiaddy "apise ias Aqajey aje fre/ZOe UOB38S jepuhdasiia pue &iie4g 'ysai|BnsiuB||eddB jo saouaiues pue u6)io|Auoo •psMoiie Aiyed sj leadde syi 'suoseej SuioBajoj 941 joj'gz •AijieSsii! [»ffluiiuoo <<|a.ieyi pL»stueiiadde jaiflo <q uojiusiu! uoiuuioo 6uuei|s ui iou ejieqg 4UB||9dde <q A|UO pes&id IIUXB-] 01 Ainfu! 6ui.sneo pue dseiia lueiiadde 10 uoitueiui uoujiuooio Buueys 01 SUBBISJ aouapjAS p eouasqe 'eoe|d )|ooi yrapiou! 941 yojijm ui ssoueisuunajp ay»pajapisuoo }ou seq ynoo VBW 941 'saoueyo piesejoje aft JQJ siue||8dde aij} fiujouaiuas pue 8uiio|Auo3 siiyAA' l.Z / •(8-AAd) PBSBJd juuxri oi BuiiBiai "O'd'l sifl 1° ez£ uoipss J8pun aiqeysiund sousuo aifl p8B|iutuoo sey BJieyg lueiisctele pue -o'd'l sittio t'g uoBoag q}iM pesj II ^Bd we uonoes japun aiqeqsiund eouauo ayi paniuiuioo 9Aey ejjeyg pue ysayen s^ie||adde ^ay •o-d'l ai|»jo frze uoiy»s^apun aiqeqsjund st i^iyM uodesMsnojaBuep Aq ^nfuj 9|duis (»sneoseij dsaija iue||adde IEIB peqsjiqetsa A|jesp sey uojinoasojd 'aouepiAa 9i|i 10 Auiiruos asoio UQ'OZ •uoitu8}u!uouiijuoo Guueys u| (^snooe jeii»ouodn psueiset sq }ouueo Ajinhijtions Buisneo fo Ai|||qe!| 'ejo)8J9yi •stue||adde jeqio yiun uoftuaiu! Boiuuioo qw»Ainfu) pasneo iou sey aijaujB tByi IB 'uiiy 0} ^nfui pesneo sey 8UO|B airetig iue||adde '(8-Aftd) pes&id II-UXBI jo souapiAa jsd sv"6t 'O'd'l S4»PfrZ£uonoes P OTUie 041 uiqiimsiiei Aiaienbs loe siq 'ajojajsti} 'uodesM snojaBuep Aq Ainfu! aidiuis pssneo SBL| da^iQ tueuaddv •uoBuaiui uouuiuoo Buueqs 10 eouepiAS Aue 10 eoussqe ui aiqaiedas A|jeep dseiia tueiisdde ^o ioe pue •o-d-| ai|i ^o t?£uoipes qtun pB8A ii yect froe uonaag p uquiB 94} uiyiiM S||B( ^iajenbs ejjeiig pue ijseM^ 8}ue||adde p pe 'ajoiajay} 'a|p Aeiu ueiinoyo pes&id Ujey peseaosp pe Jiaqi <q iey} a6patMOU)( SuiAey ajaM Asyt tsesi ie saunfu! psieadaj Suisneo inq 'yed |BttA uodn |ou>|0!is <q ssynfui pesneo aAey pue 83B|d )|oo»tuapioui Aiusppns pue| sjoui euios p pueiuap aiuos 10 lunoooe uo luapioui 10 auiit ayt VB pue pue| 0} BURBISJ aindsip auios SBM ajeiii Isjnoqi<6|8u sjeM suo&ied pesnooe pue pssesosp 'aseo lue^jd 9i|} urei ^ ,3>s' ^^ <?'.y*as '-%,. tiBi?<",:^ -.5»rt' 'A read with Section 34 ofttie I.P.©.andsentenced to tn^Mteonment to th» period already undergone l.e., slnce 3.7.2004 tilttoday, forabout slx yeais and seven months. Gonvictton and sentencesof the appellante under Section 323/34 ofthe I.P.C. are atso hereby setaside and irartead lltereof, only appellant Bhaira Is convlcted unda- SecUon ^ <rf ffie I.P.©.iamd sentenced him to undergo R.l. for one year. Sentenees shalt nm concurrenUy. Appellanls Mahesh and Bhatra are In custody, <they be released fbrthwith, if not requiredln any otheresases., ? Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge