HIGHCOURTQFCHHATT(SGARH:a^^^ DiVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. Appetlant jsn jai!) RESPONDENT Criminal Appeal No.S49 ot 2005 Derha Ram @ Tutaram, S/o Shri Savantram, Caste-Satnami, aged about 40 years, R/o Kona, Police Station Jarhagaon, Tahsil Mungeli, Dlstrict Biiaspur (C.G.) VERSUS State of C.G. through Police Station Jarhagaon, District Bilaspur (C.G.) Criminal Appeal under Section 374 (21 of Cr.P.C. Appearance: Shri Abhay Tiwari, counsei for the anaeliant. Smt. Madhu Nisha Singh, P.L. for the State. ORAL ORDER (Passedon 29.06.2011) Per T.P.Sharma. •(. Challenge in this appeal is to the judgmentof conwction and order of sentence dated 31.05.2005 passed in S.T.No.445/2004 by the 2nd Additional Sessions Judge (F.T.C.), Mungeii whereby and wheipunder after holding the appellant guilty for commfssion of culpabte homicide amounting to murder of Pokharabai, the Court below convicted the appellant under Section 302 of the I.P.C and sentenced him to imprisonment for life with fine of Rs.rtOOS/- and in defauit to further undergo rigorous fmprisonment for 3 years. - 2. The conviction is impugned on the ground that without any iota of evidence, the Court below convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on account of white vrashing of house and repair of wall by the deceased Pokharabai in her house, the appetlant after breaking Uie fencing, came to house of Pokharabai and caused fatal injury on her head, resulting into, her instantaneous death. After causing l.J^. -.»,.\ • G injury upto depth of 10 cm by piercing the axe, the appellant tried to remove ttie axe but as he could not remove the axe, he fled from Uie spot. P.W.1 Chanda Bai, mother-in-lw of the deceased Pokharabai lodged Dehati Nalishi vide Ex.P.1. On the basis of Ex.P.1, Dehati merg was recorctod vide Ex.P.2 and thereafter finally merg was recorded vide Ex.P.2/A. F.I.R. was lodged by P.W.1 Chandabai vide Ex.P.16. After summoning the witnesses, intjuest over the dead body was prepared vide Ex.P.3. Spot map was prepared victe Ex.P.4. Bloodstained and plain soils, damaged bucket were seized from the spot vide Ex.P.8. Dead body was sent for autopsy to Community Health Center, Takhatpur vide Ex.P.9/A. P.W.10 Dr.Smt.Vibha Sindoor conducted autopsy vide Ex.P.9 and found the foltowing injuries: 1. Incised wound of 4"x2"x2" over right shouider. 2. Incised wound of10cmx8cmx10om. over left temporal area with fracture oftemporal bone. 3. Axe was found pierced over the head, which was removed by the doctor. Cause of death was coma and death was homicklal in nature. Axe and cloths of the deceased were seized vide Ex.P.6. Accused was taken into custody, he made disclosure statement of blood stained cloths Ex.P.17, ttie same were recovered vide Ex.P.18. Seized arfcles were sent for chemical examinatlon and presence of blood on cloths of the appellant and on axe has been confirmed vide Ex.P.21 4. Statements of witnesses were recorded under Section 161 <rf the Code of Criminal Procedure, 1973 (for short 'the Code'). After comptetion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Mungeli, who in turn committed the case to the Court of Sessions. The learned Additional Sessions Judge has recewed the case on transfer for its trial. 5. In order to appreciate the guilt of the appeltant, prosecutton examlned as many as 13 witnesses. Accused/appellant was also ®<aminedunder Section 313 of the Code wherein he denied all the circumstances appearing against him and innocence and false implication is clalmed. 6. After affording opportunity of hearing to the parties, the leamed Additional Sessions Judge, Mungeti convicted and sentenced the appellant as aforementioned in paragraph 1 ofthisjudgment. 7. We have heard Shri Abhay Tnvari and Smt Madhu Nisha Singh, counsel for the parties at length and have perused the judgment impugned including record ofthe Court betow. 8. Learned counsel for the appellant vehemently argued ttiat in the tight of evidence of P.W.1 Chanda Bai, P.W.2 Lata Bai and P.W.3 Kem Mani Bai, he is not disputing that the appellant has nofcaused homicidal deatti but submHted that as per case of prosecution, on account of repair and white wash of the wall, the deceased and his family members were encroaching the tand of the appellant since last so many years and the same was earlier objected by the appellant and on the date of incident when Uie deceased Pokharabai was encroaching the land of Uie appellant, ttien on sudden provocation, he assaulted the deceased with the axe, which was pierced &n the head of the deceased. The appellant ateo tried to take out ttie axe but as the other persons came to there, he fled from the spot. On the seeond day, he surrendered himself. This shows that the appellant has not caused homicidal death with intent to cause death of deceased and his act does not travel beyond the scope of Section 304 Part 1 of the I.P.C. 9. On the other hand, learned counsel for the State opposed and submitted that the deceased and his femily members were not encroaching any land of the appellant. The present appellant after breaklng fenclng came to the house of Pokharabai and was holding axe. He caused repeated blows over the shoulder and head of the deceased and also caused injury upto depth of 10 cm. over her head, then it was not possible Tor him to remove the axe which was piereed into head of the deceased. This shows part played and grave intention of the appellant w'th intent to cause death of the deceased. , ? 10. In order to appreciate the arguments advanced on.behatf of the parties, we have examined the evidenced adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal Injury found over the head of the deceased Pokharabai has not been substantially disputed on behalf of the appellant but on the other hand also established from the medical evidence of P.W.10 Dr. Smt. Vibha Sindoor and autopsy vide Ex.P.9 and death was homicidal in nature. 11. As regards complicity of the appeltant in crime in question, although homicidal death of deceased has not been substantially disputed on behaff of the appellant but even established by the evidence of P.W.1 Chanda Bai P.W.2 Lata Bai and P.W.3 Kem Mani Bai, as per whose evidence, after hearing sounds of help, they rushed the spot where the accused was found frying to remove e axe which was pierced on the head of the deceased Pokharabai and the appellant also after seeing them mshlng towards spot fled from the spot. The evidence of aforesald w'rtnesses is sufflcient to establish that present appellant has caused homicidal death of Pokharabai. 12. As regards question motive for commission of offence, in case of direct evidence, motive loses its importance, even otheiwise, nKrtwe onty aids in criminality and it can be. inferred from Uie use of weapon, part on the body affected and other similar circumstances. In the present case, as per case of prosecution especially the evidenee of P.W.1 Chanda Bai, the deceased Pokharabai was present in her house and the appetlant, after breaking fencing; he came to the premises of the house of ttw deceased hotding axe. He firstly assaulted one incised wound over ri^it shoulder measuring 4x2x2 cm, thereafter he caused one incised wound of 10 x 8x 10 cm. and axe was pieroed into the head of the deceased and the appetlant was trying to remove ttie axe but he failed to take out. IMaking repeated assaults, causing deptti of injury that too over vital part i.e. head and piencing axe upto depth into the body of the deceased, breaking of fencing and causing such injury in the premises of house of the deceasaJ shews the appellant was having grave intention to cause homicidal daath ameunting to murder of Pokharabai. 13. After appreciating the evidence availabte on record, the leamed Sessions Judge has rightly convicted and sentenced the appellant as afbrementioned. , , 14. On close scrutiny of the evidence and material available on recwd, we do not find any illegality and infirmity in the impugned convicUon and sentence of the appellant. 15. Consequently, the appeal, being devoid of merit and substance, is liable to be and is hereby dismissed. — 1 Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge