».,<• m^ly'': HIGHCOURTOFCHHATTISGARH.BILASPUR APPELLANTS: (InJail) Crimliial ADDealNo.1004 of 2004 1. Kariya alias Sukhvilash son of Lanja aged about 33 years cultivator 2. Tillualias Tilakdhari son of Lanja aged about 27 years cultivator. . Both are resident of village Darim Police Statioh Darima Tahsit Ambikapur District Sacguja (C.G.) Versus State of Chhattisgarh through S.O. Police Stationjparima. •t'-\ : ; . {Criminal appeal underSection 374 (2)<Criminal Procedure Code 1973} RESPONDENT: ii::'e Present: Mr. J.S. Baraik, eounsel for the appellants. Mrs. Madhunisha Singh, Panel Lawyerfor the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr.R.L. Jhanwar, JJ ORALJUDGIVIENT (3-3-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-8-2004 passed by the 1 Additional Sessions Judge, Ambikapur in Sessions TrialNo.111/2004, whereby & whereunder learnedAdditional Sessions Judge after holdihg the appellants guilty for commission ofculpable homicide amounting to murder of Bhajram Singh and causing injury by dangerous weapon to Sukhram Singh, convicted the appellants under Sections 302 & 324 ofthe IPC and sentenced them to undergo imprisonmentfor life& payfineof Rs.500/- each, in defaultof payment of fine to further undergo Rl for five months and to undergo Rl for one year & pay fine of Rs.200/-each, in default of payment of fine to furtherundergo Rlfortwo months, respectively. 2. Conviction is impugned on the ground thatwithout any iota of evidence, the trial. Court has convicted & sentenced the appellants, and thereby committed illegality. 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Bloodstained and plain soil were recovered from the spot vide Ex.P-7. During the course of investigation, accused Tillu was taken into custody, he made discloser statement of rod vide Ex.P-9 andsam6--was recovered at his instance vide Ex.P-10. Appellant Kariya also made discloser statement of sword vide Ex.P-11 and same was recovered at his instance vide Ex.P-12. Sealedclothes of the deceased were seizedvide Ex.P-13. On the basis of bed heatticket, injury report of Bhajram was given vide Ex.P-14A. Merg was recorded vide Ex.P-16. Dead body of Bhajram was sent for autopsy vide Ex.P-17 to District Hospital, Ambikapur. pr. Faizul H. Firdosi (PW-5) conducted autopsy vide Ex.P-21 and fourid-one stitched wound.after opening it same was found to be lacerate'd wotlnd over right parietal region of 10 c.m. x 1/2 c.m.x % c.m., parietal bone of aforesaid area was found depressed, commuted fracture and subdural haemorrhage was found on the aforesaid area. Mode of death was coma and death was homicidal in nature. Seized articles were sent forchemical examination vide Ex.P- 22. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, chargesheet was filed against the appellants before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, Ambikapur, fromwhere learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt ofthe accused, the prosecution has examined as many as eight witnesses. The accused were examined under Section 313 of the CrPC jn which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. They have also examined defence witness Meena Kumari (DW-1) who has deposed that injured Sukhram & deceased Bhajram have assaulted accused Tillu by bottle. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the , appellants as aforementioned. 7. We have heard learned counsel for the parties,- perused the judgment ifnpugned and record of the trial Court. "'S!?^ "% li '<t6 ^i^ 8. Learned counsel for the appellants submits that conviction of the appellants is based on the evidence of Bhodri (PW-1) - hostile witness and Sukhram Singh (PW-3) - injured witness whose evidence does not inspire confidence and is not trustworthy. The prosecution has suppressed the injuries of the appellants, injuries found over the body of appellant Tilluwell corroborated by the evidence of Meena Kumari (DW- 1) reveal that the deceased §ithe injured were aggressors and inorder to save themselves, the appellants have usedminimum force in exercise of the right of private defence and they have not committed any offence. Even otherwise, if the gppellants have exceeded the right of exercise of private defence, their act is not punishable under Section 302 of the IPC. <A ,^.' 9. On the other hand, learned Statei.counsel opposes the appeal and submits that as per evidence of Sukhram Singh (PW-3), the appellants hadinvited the injured & the deceased for consuming liquor and taking dinner and when they reached to the house of the appellants, all of a sudden, theappellants took out dangerous weapons and caused fatal injuries to Bhajram resulting in his death and serious injuries to Sukhram. This shows grave intention of the appellants of causing death of Bhajram and serious injuries to Sukhram. Appellant Tillu has not sustained injuries during the course of incident. The complainant party has not caused any injury to the appellants. Evidence of Meena Kumari(DW-l) is self-contradictory and does not inspire confidence. 10.1n orderto appreciate the arguments advanced on behalfofthe parties, we have examined the evidence adduced on behalf of the parties. 11.1n the present case, homicidal death of deceased Bhajram as a result of fatal injuries found over vital parts of his body and simple injuries by dangerous weapon found over the body of injured Sukhram havenot been substantially disputed on behalf of the appellants, otherwise also, it is established by evidence of Dr. A.K. Jain (PW-7), bed head ticket Ex.P- 25, medicalexamination report of deceased Bhajram Ex.P-14A, injury report of injured Sukhram Ex.P-15A, evidence of Dr. Faizul H. Firdosi (PW-5) & autopsy report Ex.P-21 that death of deceased Bhajram was homicidal in nature and injuries found over body of Sukhram were caused by some sharp edged & blunt object. 12.As regards complicity of the appellants in the crime in question, ~ cdnviction is substantially based on the evidence of Sukhram Singh (PW- Bg^^T^.'i-S'^^iS'R'K' ii i y 3) - rnjured witness, as per his evidence this witness & Bhajram were invited by both the appellants for drinking liquor and taking dinner, when they went to the house of the appellants by motorcycle, all of asudden, the appellants took out sword & rod and assaultedBhajram & this witness, Bhajram fell down aftersustaihing injuries and this witness fled awayfrom the spot, some how Bhajram alsofled awayfromthe spotand went to the police station where he lodged FIR vide Ex.P-4. Bhajram was sent to hospital for treatmentand examined by the doctor. Defence has cross-examined this witness at length, particularly in para 13 defence has suggested to thiswitness that both the injured & the deceased i.e. Sukhram & Bhajrgm had gone to the house of the appellants for causing injuries t6 them, they were holding stick, Bhajram caught hold of waist of appellant Titly and Sukhram tried to assault Tillu by stick, due to bowing of head by Tillu, Tillu was saved and Bhajram sustained stick injury caused by Sukhram, Bhajram fell down on which Sukhram fled away from the spot and while running from the spot Sukhram fell down and sustained some injuries. 13.By examining defence witness Meena Kumari (DW-1), the appellants have tried to prove that Sukhram & Bhajram assaulted Tillu by bottle in the house ofTillu. As per her evidence, she hasseen the incident from a distance of 100 yards, the incident took place at 8 p.m. in the night and as per her evidence, Sukhram & Bhajram have assaulted Tillu by bottle. Normally it was not possibleto see such an incident from a distance of 100 yards, but it was not impossible for her to see the incident. Tillu has not taken defence in his examination under Section 313 of the CrPC, even the appellants have not taken defence by suggesting to injyred Sukhram Singh (PW-3) that they (complainant party) have caused injuries to Tillu by bottle or Tillu sustained injuries as a result of assault made by the complainant party. 14.As per para 13 of cross-examination of Sukhram Singh (PW-3), the appellants have suggested him and taken defenee that Bhajram caught hold of waist of Tillu and Sukhramwas assaulting Tillu by stick, but Tillu saved himself and injury was ihflicted to Bhajram over his head. This shows that during the course of incident, Tillu has not sustained any injury that too by bottle. This defencetaken by way of suggestion completely contradicts the evidence of Meena Kumari (DW-1) whiCR itself is contradictory. \y-" a -Wt»StK^»W::iW^" i. s •Vse' •!!!:( •-^.^- 15.As per Ex.P-30, accused Tillu was also examined by the doctor. Althpugh the prosecution or the defence hasnot examined the said doctor, but the injury report (Ex.P-30) reveals that one contusionof 2" x 1" was found over right shoulder, another contusion of 2" x1" was found over left shoulder, and one linear healed scar was found over left fore arm. In absence of any defence by way of suggestion or by way of examination of any defence witness or by the defence taken by the accused in their examination under Section 313 6f the CrPC, the injury report Ex.P-30 relating to Tillu is of no use. In absenceof any injury it is difficult to hold that the deceased & the injured were aggressors. 16.Deceased Bhajram himself.has?Jodged FIR vide Ex.P-4 which has been duly proved by injured Sukhran. Singh (PW-3). Defence has not suggested anything to this witness relating to thefact that Bhajram has not lodged FIR. After death of Bhajram, the FIR lodged by him becomes his dying declaration which also corroborates the evidence of Sukhram Singh (PW-3). 17.Evidence ofSukhram Singh (PW-3) substantially corroborated by the promptly lodged FIR Ex.P-4 i.e. the dying declaration of Bhajram, is sufficient for drawing inference that appellant Kariya has caused fatal injuries td Bhajram by sword and also caused injuries to Sukhram. Likewise.evidence of Sukhram Singh (PW-3) is also sufficient for drawing inference that appellant Tillu has also caused injuries to Sukhram and caused homicidal death of Bhajram. 18.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 19.1n the present case, injured Sukhram Singh (PW-3) or deceased Bhajram Singh have not caused any injury to (he appellants, they were invited by the appellants for drinking liquor and taking dinner, but when they reached to the house of the appellants, all of a sudden the appellants havecaused such fatal injuries to them. FIR Ex.P-4, dying declaration of Bha}ram, reveals that on the ground of giving help to one Bhorli, the appellants have caused such injuries to thecomplainant party and at that time, the complainant party were not rtaving anyweapons. Even as perevidence of Sukhram Singh (PW-3), the complainant party Soina 7 visited the house of the appellants by motorcycle which reveals that by taking the benefit of their helplessness, the appellants havecaused injuries to Bhajram resulting in his death and injuries to Sukhram which shows grave intention of the appellants of causing homicidal death of Bhajram. s ZO.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. 21.Evidence adduced on.]?ehalf of the prosecution clearly reveals that both the appellants were holding weapons and they have assaulted Sukhram. This is not thecase where Tillu»-6ameall of a sudden and caused injuries only to Sukhram, but Tillu was holcting weapon along with co-accused Kariya which shows their common intention insharing the commission of offence. 22.Virtually, the act of appellant Kariya reveals that he has committed culpable homicide amounting to murder of Bhajram insharing common intention with appellant Tillu and both the appellants have caused injuries to Sukhram. However, the trial Court has convicted both the appellants under Sections 302 & 324 of the IPC. Finding of the trial CouU is based on credible, clinching and reliable evidence sustainable under the law. 23. However, on the count of conviction, the appeal is technically and partly allowed. Conviction & sentences imposed upon appellant Kariya under Sections 302 & 324 of the IPC are herebymaintained. Conviction & sentences imposed upon appellant Tillu under Section 324 of the IPC are also maintained. But conviction of appellant Tillu under Section 302 of the IPC is altered to Section 302 read with Section 34 of the IPC and he is hereby sentenced to undergo imprisonment for life & pay fineof Rs.500/-, in default of payment of fine to further undergo Rl for five months. Sd/- T.P.Shai-ina Judge Sd/- R.L. JhaBwar x •aaasogn! ]