Present: Shri H.B. Agrawal, Sr. Advocate with Smt. Meera Jaiswal‘ counsel for the appellant. Smt. Madhunisha Singh, Panel Lawyer forthe State. HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram:Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar JJ. Criminal Apgeal No. 971 of 2008 Appellant Kamla Kant Dutta, aged about 32 Accused years, s/o. Vishwanath Dutta, r/o. (injail) Tarbahar Naka, P.S. Tarbahar, P.O. & Distt. Bilaspur (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Per T.P. Sharma, J. JDGMENT U (Delivered on 24-1 1—201 1) 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22-10-2008 passed by Sessions Judge, Bilaspur, in Sessions Trial No. 74/2008, whereby and whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of his nephew Somnath Dutta, convicted him under Sections 302 of the IPC and , Vs. Respondent State of Chhattisgarh, through S.H.O., Tarbahar, Distt. Bilaspur (CG). sentenced him to undergo imprisonment for Iife and to pay fine of Rs.500/—, in default of payment of fine to further undergo R.l. for six months. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appeiiant as aforementioned and thereby committed iiiegality. As per case of prosecution, on 6-4—2008 at about 11.00 p.m., on account of dispute, appellant neighbour of deceased Somnath Dutta quarreled and assauited him by knife over his chest and caused fatal injuries, resuiting into his instantaneous death. (PW/2) Baby Dutta, mother of the deceased went to Police Station Tarbahar within ten minutes of the incident and lodged first information report vide Ex.P/7 and merg videEx.P/6. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/10, inquest over the dead body was prepared vide Ex.P/11, spot map was prepared vide Ex.P12, blood stained soil and plain soil were seized from the spot vide Ex,P/2, dead body was sent for autopsy to CIMS, Bilaspur vide Ex.P/7 where Dr. Vijay Chandel (PW/11) conducted autOpsy vide EXP/19 and found stab wound of 1.5x.6” penetrating sternum, pericardium, right vertical of heart and right lung and opined that mode of death was syncope and death was homicidal in nature. During the course of investigation, appellant was taken into custody and he made a disclosure statement of knife vide Ex.P/1 and same was recovered at his instance vide Ex.P/3. Sealed articles were sent for chemical examination to FSL Raipur vide Ex.P/14. 6. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions Judge, Bilaspur, who framed charge under Sections 302 of the IPC against the appellant. 7. In order to prove the guilt of the appellant, prosecution examined as many as 11 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. 8. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 10. Shri H.B. Agrawal learned Sr. Advocate with Smt. Meera Jaiswal, learned counsel for the appellant vehemently argued that although conviction is based on the evidence of PW/2 Smt. Baby Dutta, mother of the deceased and PW/9 Kartik Dutta, father of the deceased, their evidence does not inspire confidence and trustworthy. At the time of incident there was darkness and the aforesaid witnesses have not seen the incident as they were not present on the spot. They came only after commission of the incident. There are contradictions and omissions in their evidence and also in the statements recorded under Section 161 of the Code \ .\\ \ \ i.e., Ex. D/1 and D/2. As per para 12 of the evidence of A. Kujur, Investigating Officer (PW/7), father and mother of the deceased reached the spot after commission of the incident which shows that these witnesses had not witnessed the incident but have deposed against the appeiiant with a view to implicate him falsely in the case. Learned counsel further submits that if the act attributed to the appellant is considered in the light of the evidence of the aforesaid witnesses, then the act of the appellant does not travel beyond the scope of Section 304 Part ll of the IPC. Learned counsel for the appellant, in support of his arguments, has placed reliance in the matter of Karam Singh @ Karmu vs. State by the inspector of CBCID, Madras, reported in 1992 Supp (2) SCC 60 in which the Supreme Court held that-in absence of test identification parade of the appellant when offence committed at darkness, conviction of the appellant on the basis of court identification is not safe. On the other hand, Smt. Madhunisha Singh learned Panel Lawyer on behalf of the State opposed the appeal and submitted that conviction is based on the evidence of PW/2 Smt. Baby Dutta, mother of the deceased and PW/9 Kartik Dutta, father of the deceased who were present in their house at 11.30 pm., on the date of incident and their presence was not unnatural. This is not a case where appellant suddenly caused single blow to the deceased, but this is a case in which after quarreling appellant went to his house and came with knife and caused fatal injuries affecting the heart and lungs of the deceased by knife which shows of the prosecution. 13. his grave intention to cause homicide amount to murder of Somnath Dutta and whiie causing such fatal injuries over chest of the deceased by dangerous weapon, the appeilant was having definite knowledge that by his act, deceased may die. After appreciating the evidence avaiiabie on record, the court below has rightly convicted and sentenced the appellant as aforementioned. ln order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf 12. ln the present case, homicidal death as a result of fatal injuries found over the vital part of the deceased has not been disputed on behalf of the appellant. Even othenNise, it is also established by the evidence of Dr. Vijay Chandel (PW/11) and autopsy report vide EXP/19 that death of deceased was homicidal in nature. As regards the complicity of appellant in crime in question, conviction is substantially based on the evidence of PW/2 Smt. Baby Dutta, mother of the deceased and PW/9 Kartik Dutta, father of the deceased. As per evidence of PW/2 Baby Dutta, on 6—4- 14. 2008 at about 11.00 p.m., she along with her husband (Kartik Dutta), her son — deceased Somnath Dutta and other children were present in her house, at that time her brother-in—law i.e., appellant Kamlakant Dutta was threatening her son Somnath Dutta Being informed “oy Somnath Dutta to his father, deceased was advised by his father that he should not get that he would kill him. \ \.L\ \\\ o \Yension for the words used by appellant and thereafter' appellant l came with knife from his house and assaulted Somnath Dutta over his chest, as a result of which he feii down, thereafter appeiiant fied away from the spot. Somnath Dutta immediately died on the spot. She rushed to Police Station and lodged information report within ten minutes of the incident vide Ex.P.7. PW/9‘ Kartik Dutta, father of deceased substantially corroborated the evidence of PW/2 Baby Dutta. Defence has cross—examined these witnesses at length. There is contradiction relating to lifting the shutter. As per their evidence, the appellant himself lifted the shutter of his house, brought the knife and caused injuries to Somnath Dutta, but as per their statements under Sections 161 of the Code, vide Ex.D/1 and D/2, deceased was lifting the shutter of the house of appellant. Although there is contradiction, but contradiction is not vital in nature and does not affect the root of the case. As per evidence of PW/2 Baby Dutta, there was no electricity in her house at the time of incident, but the incident took place from outside the house. In 'their detailed cross-examination, PW/2 Baby Dutta and PW/9 Kartik Dutta have specifically deposed that after quarrel appellant took out knife from his house and caused fatal injuries to their son Somnath Dutta. She has lodged first information report in police station vide Ex.P/7 within ten minutes of the incident which also corroborated her evidence. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross- examination to discredit their testimonies to the fact that the appellant has not caused fatal injuries to their son. They are relatives of the deceased and relation between the appellant and \ \ deceased was strained but only on the ground of their relationship, their evidence cannot be discarded and minute scrutiny is required. Evidence of PW/2 Baby Dutta and PW/9 Kartik Dutta and promptly FIR iodged vide EXP/9 find further corroboration by medical evidence which inspire confidence and trustworthy and same is sufficient for drawing inference that present appellant has caused homicidal death of deceased. 15. As regards question of motive is concerned, in case of direct evidence motive looses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. ln the matter of Karam Singh @ Karmu (supra), the Supreme Court held that in absence of test identification parade of the appellant when offence committed at darkness, conviction of the appellant on the basis of court identification is not safe. ln the present case, appellant is the relative of the witnesses and he was known to them, who have specifically stated in their statements recorded under Section 161 of the Code and in first information report that present appellant has caused injuries to Somnath Dutta. ln the present case, the question of test identification parade does not arise. Thus, the case law cited by learned counsel for the appellant is distinct from the facts of the present case. In the present case after quarrel, appellant went to his house and took out knife from his house and caused injuries over chest of the deceased, resulting into his instantaneous death. As per medical report, stab injury was found over the chest, left lung and ,right vertical of heart were found punctured which shows the force used by the appellant whereby lungs and heart both were punctured. This is grave intention of the appellant for causing homicidal death of deceased by dangerous weapon knife. 18. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 19. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence of the court below. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed \ sw- Sdl— T.p.SHARMA l x _‘R.N. Chandrakar ' Judge ‘ i A. l Judge J it;