' i7;^-^ -^-^^^^T^^^s^1'^^^^ : ^ • ~ fJt~^^^M~~^z^-S HIGH COURT OF CHHATTI8GARH, BILASPUR 0-ltutaal Appeal No. 550/2003 APPELLANT (InJaU) VBI%U8 Saaiaru, ^ed about 60 years, s/o Hirau Kanwar, occupatton Agriciilture, R/o VIBage Rajpur, P.S. Lailimga District Rai^rh (CG) RESPOKDBMT The Slate of CMiatttegarh, ^^ ^-^il^§^^^ CRIMIMAL APPBAL imDBR SECTION 374 (21 OP THB CODB OF CRIMINAL PRlOCBDURE Appearaace: Ms. Sangeeta Mishra, counsel for the appellant Shri D.K. Gwah-e, Gcwerament Advocate for the State. Divisioa Bench:- Hon'ble Shri T.P. Sharma fc Hon'ble Shri R.L.JhMiwar.JJ Per T.P.Sharma, J. ORAL JinacmBNT (21.01.2010) 1. ChaUenge iu fhis appeal is to the judgmeat ofconvtetion aad order of sentencc datcd 25.2.2003, passcd by the Second Additional Sessions Judge, Raigarh in Sessions Trial No. 211/2002, whereby aad whercunder the leamed Additioiial Sessions Judgc afier holdin^ the appdlant guilty for conmrission of causing homicidal deafh, aiaountiug to niurder of Rathuraat, convicted the appeUqnt under Section 302 of the IPC and sentenced to undei^o unprisoument for Ufe aad to pay a j5ue of Rs.200/-, in defaiilt ofpayinent offine to further undergo R.I. for 3 nionfhs. w/ '^^•^^^V-^S^^^^S'^^ :i'l"!:i:??":^2^*^^^^^^^ 2. The judgment te chatleiiged on fhe ground tbat wifhout aay credible aad clinchiag evidence, the Court below bas convicted aad sentenced the appeUaat as aforementioned and thereby conunitted iUegality. 3. The case of fhe prosecutfon M that on tfae fateful day of 25.9.2002, at about 4.00 jpm, at viQaf/s Rajpur, Distnct Raigarh, deceased- Raftiuraut was presCnt in thc Tailoring shop of Ghanshyam. Tejram (PW-9), Ramchaadra (PW-3), Holsal (PW-11) aad Siut. Rupodhanbai (PW-12) were present in fheTaaoring &b.op. WIule Rafhuram was coming out from the Taitoring shop after discussion with Holsai, ttie accused/appeUant Samaru assaulted Rathuram by axe and caused instantaneous death ofRaffauram on fhe spot. He went fix>xa fhe spot aad inade extea judicial coiifession before Tajram (PW-9) and Dubraj (PW-10) fhat he has Idlted Rathuraia by axe. At fhat tune, he was holdmg axe. Holsai (FW- 11) and Ramchandra (PW-3) went to PoUce Statiou and pioinptfy lodged inerg intuaation vjde Ex. P/4 aad First Iiiformation Report was lodged vide Ex. P/3. The Invcsti^ting OfBcer teft fw tiie scene of occuireacc aad after sumnioning witnesses vidc EX.P/ 1, inquest over the dead body of Rafhurain was prepaxcd vidc Ex. P/2. The dead body was seat for autopsy to the Conununily Healfh Caitre, Lailunga vide Ex. P/17, where Dr. ShaUeiidra VpaShyay (PW-4) conducted autopsy wide Ex. P/6. The Doctor foiiad foUownig rajunes : (i) Incised wound over left parietal region 3" x l* x brain deep. (ii) Incmed wound over left side of neck 2" x 1" x nausclc deep. (ii^ Incised wouad over back ofneck 3" x 1" x muscle deep. (iv) Incised woiind at right shouldcr 5" x 1" x bonc deep. (v) Inctecd wound on right ear 2" x I" x bone deep. (vi) Left parietal bone of head aad r^ht fciaur boaes were found fi-actured. He opined fliat the cause ofdeath was syncope, as a .. ^ '• y ••'• '^ ^l^i^ii'^.^i-isiu&U!. ^;t^^s?^^^,p result of excessive extemal haemorrhage aad the dcath was hoinicidal ia nature. 4. Spot map was prepared vide Ex. P/5. Pattvari prepared tfae spot niap vidc Ex. Pf^. The accused/appeUant was taken iuto custody. He niade disclostire stateinent of axe vide P/11. Blood staiaed axe was recovered fcwai the accuscd/appeUan.t vide Ex.P/12. One btood stEtinecl Dhoti was seized fiiona fhe appeBaat vMe Ex, P/13. Plam soU and Blqod stained soil was collected vide Ex. P/14. Sealed clofh.s of the deceased were seized vide EX.P/ 15. The sejzed arflctes were sent for chemlcal exaxniaation. Stateiuents of witaesses were recorded uader Section 161 of the Code of Cnminal Procedure, 1973. 5. After completioa of fhe mvest^ation, charge sfacet was fited before the Court of Judicial Magistrate First CIsss, Ghar^hoda, who ia tum, comauttcd the case to fhe Court of Sessions, tom wbere the learaed Sccond Additional Sessions Judge, RaigaA received fhe case on trausfer for trial. 6. In order to prove fhe guilt of the accused/appeltattt, prosecution has ocamined as many as 14 wituesses. The accuscd was examiued under Section 313 of fhe Code of Code of Crimmal Procediire, in which, he denaed th.e ctreuittstanees appearing agaiast him, pleaded inaocence and false unplication. 7. Aflter affording the opportiuuly ofhearing to ffac parties, the leamed Additional Sessions Judge faas convicted and sentenced the appeUaat iu fhe aforesald Biaaner. 8. We have heard tearued couasel for the parties at lcc^th and have perused fhe judgment and record ofthe Court below, 9. Leamed counsel for the appeUaat vehemenffy ai^ucd tbat the factum ofdisclosure statement inade by the accused/appeUant has not been supported by tiie evidence of witaesses aad huiaaa ^~:t8a53'S»^ blood aad btood gioup is also not confinaed froin fhe cheaaical anatysis icport. She submitted that fhere was no motnre for coiainission of such heiaous ofFencc of inurder. Osly <m fhe ground fhat the appellant'was previously convicted, tfae witaesses have falsely implicated the appcllaat in the crime in question. 10. On the other harid, learucd cozinsel for the State opposed fhese aiyiinents and stated 'that fhe preseat case is based on thc direct ocular evidence ofcye-tritucssesRaineliandra (PW-3), Holsai (PW-ll), Smt. Rupodhanbai (PW-12) and tfae extra judicial confessipn made by fhe appellant before Tajraai (PW-9) aad Dubraj (PW-10). Leamcd counsel fiutbier submitted that the evideiice adduced on behatf of the prosecution is suEBcieat fordrawiE^ au inference fhat tbe appeUant is the peraon, who has conunitted homicidal death ofRathuram, amountiag to murder. 11. In order to appreciate the arguincnts advanced on befaaJfof the pardes, we have exaaained fhe evidenoe adduced on behalf of the prosecution. 12. In fhe present case, the hoaifcidal deafh of deceased- Rattiuram, as a result of fatal iujuiy bas not been substantially disputed by fhe appeUaat It is establishcd by thc evidcaee of Dr. Shailendra Upadhyay (PW-4) aad autopsy report Ex.P/6, which icvealed fhat fhe fatal iajiuy was found over fhe neck, due to which, large btood vesscl of thc neck was cut, kft parietal toone of head aad th.e right feinur bones were fiactured aad the death: was hoiaicidal in nature. 13. As regards coiuplicity of ftic appeBant in criaae in question is concemed, the conviction of fhe appellaat is based on direct evidence ofthe eye-witnesses Ramchandra (PW-3), Hoteai (PW-ll), Sin.t. Rupodhanbai (PW-12) and the extoa judicial coiifession laade by fhe appcUant before Tajram (PW-9) and Dubraj (PW-10). ^ - •'^^"^^•ss^^!^. "^^-^ - .ST"^^-:^^i l;3^1^^i^^^ Ramchandra (PW-3) has deposed ia Iiis evidence that at fhe time of iacident he was present ia the TaUoring shop of Ghaashyam, Rathuram was also present there. The accused/appeUant- Samaru came wifh ssss and assaiilted Rathuram by it over his head, neck and shoulder, at tbat tinae one woiaan aad fhe tailor were also present. He inunediately went to Police Station and lodged mei^ mtimation vide?Ex. P/4 aad F.I.R. vide Ex. P/3. Holsai (PW-11) has deposed ia his eyalence that at the time of incident fhe deceased came to tbe Tailoriag shop of Gfaanshyani and requested liim for stitclung his pant. While he was coming out troiu fhe shop, the appeUaat was standing wifh an axe aad assaulted Rafhuram. by fh.e axe aad caused 5 repeated nguries over his head, neck aad shoulder, on which, Rathiuam feU down and died iastantaneously. Rupodhaabai aad Ramchaaxlra were also present at the time of incident. Rupodhaabai (PW-12) has also corroboiated the evideace ofHolsal (PW-ll). 14. Defence has cross-examined Ramchanidra (PW-3), Holsai (PW-11), Smt. Rupodhanbai (PW-12) in detail, but it has not been able to elicit aayttung ia their cioss-exauunation to discredit their testunony. On the other hand, the fact that Ramchaadra (PW-3) was present in the shop of Ghaashyaia aad accused/appeUaat assaulted the deceased by axc and caused 4-5 iajuries, te unchaBenged iu their statenients. The prosecution has also adduccd fhe evidence of extra judfcial confession made by the appellant before Tajram (PW-9) and Dubraj (PW-10). Bofh the witoesses have speci&catty deposed fhat at fhe tiiae of incident, fhe appefflant caiae wifh axe and made extra judicial confession before theia that he has kffled Rathuram by axe. The factum of extra judicial coufession. niade to those wituesses, is also unchaUenged iu their cross-exaxniaation. The ewidcnce ofTajram (PW-9), Dubraj (PW-10), Ramchandia (FW-3), Holsal (PW-ll) and Smt. Rupodhaabai{PW-12) is sufficient and it iaspires coBdBdence ofthe ^ ^'y'<7"~ ^•^^St8^^^^^ Court for drawing an inference that the appeBant has caused fatal iajuries to the deceased Rathuram. 15. As regards fhe question of aiotivc, aiotwe onty aids in crmiiuialily, in case oT direct evideace it loscs its nnportance. Motive caa be inferrcd on the basis of injury found ovcr ffae body aud fhe part ofthe bqdy affected and ofher Uke circuinstanccs. <( 16. In fhe present case/'Rathuram was present ia thc Tailoriag shop aad he was not witti any'weapon. The appellant, who was previously convicted, canae wiffa axe aad inflicted 5 fatal blcws over Rathuraai, which shows grave intenttDn of the appellant to cause deafh offhe deceased. 17. After apprcciatmg fhc evideuce availablc on record, fhe learued Court below has convicted the appeBant ituder Section 302 of ttie IPC and sentenced him for life unprisonment witfa fiae. Thc conviction offhe appellant is based on credible, cUnchiag aad lcgal evideace, sustainable uader law. 18. The Court below has awarded a rninimnTn scntence prescribed under law. 19. On close scrutiny of the evidcncc, we do not find any lUegality or irregtilarily iu fhe judgment inupugncd, warrantmg raterference by this Court. 20. The appeal is devoid of merits and the same is liable to be dismissed and is hereby disimssed. < R.L. Jhanwar \ Judge Sd/- T.P. Sharmi sunita