@ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISEON BENCH CORAM: HON’BLE MR. T.P. SHARMA 8s HON’BLE MR. N.K. AGARWAL, JJ. APPELLANT gm; JAIL) $"’. Cr. A. No. 349 12003 Hadi, aged about 50 years S/o ’ Gadaru Mama, occupation Agriculture, R/o Patelpara, Tekameta RS. Parpa (Frazerpur) District Bastar (CG). RESPONDENT The State of Chhattigarh Through A ‘ a RS‘ Frazerpur District Bastar (C.G.). CRIMINAL APPEAL U/S 374 t2) OF Cr.P.C. Present:— Ms. Sangeeta Mishra, Advocate for the appellant. Shri MRS. Bhatia, Dy‘ G.A. for the State/respondent The following iudgment of the Court was passed bV T.P. Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 24¢9/2002 passed by Sessions Judge, Bastar at Jagdalpur in special Case No. 239/2002 whereby and where under after holding the appellant guilty for the offence of homicidal death amounting to murder of deceased Somaru alias Mehtar convicted the appellant under Section 302 of the Indian Penal Code and sentenced ORAL-JUDGEMENT (Passed on 08 / 0:1 [2010) C) impxisonment for life and fme of Rs. 1,000/- in default additional rigorous imprisonment for 1 year. 1 2. Judgment is impugned on the gound that without any credible evidence Court below has convicted and sentenced the appellant as aforementioned. Prosecution case in brief, on fateful day of 5/4/02 at about 12 at noon deceased Somaru alias Mehtar was sleeping in his house, PW2 Sukro daughter of deceased was present in the house appellant who is younger brother of the deceased came with Axe and assaulted the deceased over the neck and caused instantaneously death-of the deceased. PWI Dasru son of deceased lodged the First Information Report vide EX. P—l on same day, Marg was also recorded Vide Ex. P—8. Investigating Officer left for the place of occuirence after summoning th'e witnesses inquest over the dead body Of the deceased was prepared by EX‘ 13-6. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur Vide Ex. P-Q—A. Autopsy was conducted by PW3 Dr. L.L. Thakur Vide Ex. P—Q and found one incised wound‘over Supra Clavicle region of 3 1/2” X 1" X 3 1/2”, the blood vessels of neck and clavicle bone were cut‘ The cause of death was as a result of hemorrhage. 4. Blood stained and plain soil, axe used in the commission of offence were seized from the spot Vide Ex. 13-4, cloths of the accused were seized Vide Ex. P—5. Spot map was prepared Vide Ex. P—9. Seized article were sent for chemical C? examination Vide Ex. P— 14. Presence of blood over the cloths of accused and axe waS confn‘med vide report Ex. P—15. Statement of the Witnesses were recorded under Section 16 1 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur who in tuln committed the case to the Court of Sessions, Jagdalpur. 'x In order to prove the guilt of the appellant prosecution examined as well as 5 Witnesses, accused was examined under Section 313 of the Code Where he denied the circumstances appearing against him, innocency and false implication is claimed. After aifording an opportunity of hearing to the parties learned Sessions Judge convicted and sentenced the appellant as aforementioned. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that PWQ Sukro alleged eye witness is a daughter of the deceased and close relative of the deceased. She has not seen the incident, both the parties were in inimical terms and on the ground of enmity she has falsely implicated the appellant in crime in question. Learnad counsel for the appellant further argued that only one injury was found over the body of the deceased appellant. He has not caused any injury with intent to commit the murder of the deceased therefore if the case of the prosecution is admitted in its face value then even the . act of appellant does not traveled beyond the scope of Section 304 Part —II of the Indian Penal Code. a: 10. On the other hand, learned counsel for the State] respondent opposed the appeal and submits that PW2 Sukro daughter of deceased is a natural witness her presence in her house at the time of incident was natural, she is close relative of deceased as well as appellant, her statement inspire confidence trustworthy and safe to rely. 11. In order to appreciate the argument advanced on behalf of the parties we are examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of fatal injury of the deceased Somaru alias Mehtar is not substantially disputed. On the other hand otherwise also established by the evidence of PW3 Dr. L.L. Thakur and autopsy report EX. P—2 in which it reveals that fatal injury was faund over the neck 0f deceased effecting the neck and blood vessels. . As regard the complicity accused in crime in question is concerned the conviction is based on evidence of eye Witness PWQ Sukro daughter of deceased. PW2 Sukro has deposed (a? @ in her evidence that at the time of incident her father Somaru alias Mehtar was sleeping in her Baranda. She was also present in the same Baranda. Appellant who is her uncle came with axe and assaulted the deceased over his neck by axe then she shouted to his brother Dasru who immediately came, she narrated the incident to his brother and other Villagers her father died on the spot. PWI Dasaru s‘on of the deceased has corroborated the evidence of PW2 g his sister Sukro has deposed that present appellant his uncle ““Ias present on the spot. He has lodged the report. Defence has cross examined thesen‘witnesses at length but has not been able to illicit anything in their cross examination to discredit their testimony. The fact that appellant is a person who was caused fatal injury over the neck of the deceased is unchallenged in the evidence of PW2 Sukro and has been corroborated by the evidence of PWI Dasru both are son and daughter of the deceased and close relative of the deceased as well as Close relative of th appellant. Statement of ‘above said witnesses are corroborated by the medical evidence and promptly lodged First Information Report, Marg, inspire confidence trustworthy and safe to rely. 14. The motive is the only aid in criminality and in casetof direct evidence it loses its importance. Motive can be inferred on the basis of the nature of injury, part of the body injured, e i// weapon used and the manner of inflicting the injury. The aforesaid factS and circumstances are sufficient for drawing inference. 15. In the present case the appellant who is younger brother of the deceased came with axe and assaulted the deceased by the axe over the neCkrWhile he was sleeping shows the grave intention of causing homicidal death amounting to murder of the deceased. After appreciating the evidence available on record learned Sessions Judge has convicted and sentenced the appellant as aforementioned. 16. On close scrutiny of the evidence available on record, we do not fmd any illegality or infirmity in the judgment impugned warranting any interference. Consequently, the appeal is devoid of merits is liable to be dismissed and it is hereby a dismissed. l Sd/- Sdl— T. P. Sharma Judge N.K. Agrawal Judge