^3f:-SS^i /€V^' ' '!;>, '1: 'rlh.. t91B81 i,^ ^^^ w HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & KQN'BLB MR. R. L. JHANWAR. JJ. APPELLANT CRIMINAL APPEAL N0. 672/2006 Vivekdas Manikpiui S/o Mohandas Manikpun, aged 34 years, occupation Agriculturist, R/o VUlage Kanimeta, Police Station Chhtiikhadan District Rajnandgaon (C.G.j. VE^SUS RESPQNDENT State of Chhattisgarh through Police Station Chhuikhadan District Rajnandgaon (C.G.). CRIMINAL APPEAL UNDER SECTION 374 OF CR.P.C. 1973. Present:- Mr. Ashok Verma, Advocate for the appellant. Mr. J.A. Lohani, P.L. for the State/respondent, ORAL-JUDGBMENT (Passedoa 22/06/2011) The foUowine iudssment of fhe Court was passed bv T.P^Sharma, J:- 1. Challenge in this appeal is to the judgment of convection and order of sentence dated 13/7/2006 . passed by Additional Sessions Judge, Khairagarh, District Rajnandgaon C.G. in Sessions Trial No. 189/2004 whereby aad where under after holding the appellant guilty for the commission of culpable homlcide amounting to miirder of deceased Jitendra Kumar Lodhi convicted the appeUant iinder Section 302 of the Indian Penal Code and sentenced unprisonment for Itfe wifh fme of Rs. 1000/- in defaiilt of payment of fine amount additional rigorous imprisonment for 6 months. Judgment is unpugned on ttie ground. that wifhout iota of evidence Court below has convicted and sentenced the appeUant aforementioned and thereby committed an Ulegality. As per case of the prosecution on fateful day of 3/8/2004 about 3.30 P.M. unfortunate Jitendra Kumar Lodhi (since deceased) was sitting near the shop ofPWl Shobha Rain Lodhi. He was reading news paper. Appettant came with axe and assaulted fatal injuries over fhe head of deceased Jitendra Kumar Lodhl then Jitendra Kuinar Lodhi shtfted to the hospital for treatment, his condition was serious. He was exainined vide Exs. P-5 8s P-9. During coiirse of treatment he died. Krishna Ram lodged Dehatinalshi vide Ex. P-10. Marg was recorded vide Exs. P-12 & 20. After summoning fhe witnesses, inquest over fhe dead body of Jitendra Kumar Lodhl was conducted vide Ex. P-4. News Paper Ex. P-2 whlch Jitendra Kumar Lodhi was reading was seized from the Shobharam Vide Ex. P-1. Blood stained axe was seized from Shiikdev vide Ex. P- 3. Blood stained cloths of fhe accused/appellantwas <f%-'~". Y_-> seized vide Ex. P-11. Dead body of Jitendra KLimar Lodhi was sent to fhe Govt. Hospital; Rajnandgaon. PW6 Dr. R. Sadani conducted autopsy vide Ex. P-13 and found incised woiuid of22 x 3 x 11 C.M. over scalp. Brain was badly damaged. Long and, niultiple fractures found on scalp bone. Cause of death was serious injuries found over the head. FinaUy First Information Report was lodged vide Ex. P-17. Blood stained and plain soU were recovered from the spot vide Ex. P-18. Sealed cloths of the deceased was seized vide Ex.P-21. Seized articles were sent for chemical examination vide Ex. P-23. Preseuce of blood was confirmed over the cloths of appellant and axe vide Ex. P-25. 4. Statement of the witaiesses were recorded T-mder Section 161 of the Code of Criminal Procedure, 1973 (in short the Code^. After completion of fhe investigation charge sheet was filed before the Additional Chief Judicial Magistrate, Khairagarh who in tum committed the case to the Court of Sessions, Rajnandgaon fi~om where leamed Additional Sessions Judge, Khalragarh District Rqnandgaon (C.O.) has received the case on transfer for trial. 5. In order to prove the guilt of the appeUant/accused prosecution examined as many as 7 witnesses. "a. Accused/appellant was exammed under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false tmplication is claimed. After affordtng an opportiinity of hearing to fhe parties leamed Additional Sessions Judge, Khairagarh District Rajnandgaon (C.G.) convicted and sentenced fhe appeUant as aforementioned. Shn Ashok Verma, Advocate for the appeUant and Shri J.A. Lohani, P.L. for fhe State/respondent are heard. Judgment unpugned and record of Coiirts below perused. Leamed counsel for fhe appellant vehemently argued that conviction of the appeUant is based on tfae evidence of eye witnesses FW1 Shobharam Lodhi, PW2 Sukhadev & PW4 Krishna Ram Yadav but fheir evidence does not inspire confidence and trustwortfay even otherwise prosecution has not proved the motive for commission of offence, even as per case of fhe prosecution appellant has caused single blow and has not toried to cause repeat injuiy fhis shows that appellant has caused homicidal death of Jitendra Kiimar Lodhl not amounting to murder and act of the aupellant does not travel bevond the scope of Section .*.?3-.> i "~:^£ll.j .Sf A' ^.ssy ^} 304 Part-I of fhe I.P.C. in which appeUant is m custody since 3/8/2004. 9. On the other hand, leamed counsel for the respondent/State opposed the criminal appeal and submits that evidence of PW1 Shobharam Lodhi, PW2 Sukhadev & PW4 Krishna Ram Yadav are siifiicient for drawing definite conclusion that present appeUant has caused homicidal death amounting to murder of Jitendra Kumar Lodhi. After appreciating fhe evidence avaUable on record leamed Additional Sessions Judge, Khatragarh District Rajnandgaon (C.G.) has rightiy convicted and sentenced the appeUant as aforementioned. 10. In order to appreciate ffae argument advanced on behatf of the parties we have examined the evidence adduced on behalf of the prosecution. 11. In the present case homlcidal deafh as a result of fatal uijury found over the head of Jitendra Kumar Lodhi has not been substantially disputed by the appellant on fhe other hand, otherwise also established by the evidence of PW3 Dr. M.G. Tiwari and injury report Ex. P-5 and evidence of PW6 Dr. R. Sadaiii and autopsy report Ex. P-13 and deafh ofJitendra Kiimar Lodhi was homicidal ui nature. "tl 12. As regard fhe complicily of the appellant in criine in question is concemed, conviction of the appellant is substantially based on fhe evidence of PW1 Shobharam Lodhi, PW2 Sukhadev & PW4 Krishna Ram Yadav. As per evldence of PW1 Shobharam Lodhi, - Jitendra Kumar Lodhi was sitting in hls shop along wifh Krishna Ram Yadav after some time he heard the sound of Jitendra Kumar Lodhi then he rushed from fhe shop where he saw sharp part of the axe inserted in fhe brain of Jitendra Kumar Lodhi. Appellant was holdin^ handle of axe. Witnesses Krishna Ram Yadav & Sukhdev were snatched tfae axe from the appellant thereafter appeUant went towards Chhmkhadan. As per evidence of FW2 Sukhadev & PW4 Krishna Ram Yadav appeUant came with axe from his house. He assaiilted fhe Jitendra Kumar Lodhi by axe over his head. They snatehed axe fi-om the appellant fhen appeUant left from fhe place of incident. Defence has cross examined fhese witnesses at ler^Ch but has not been able to illicit anything to discredit fheu- testimony special^' relatin^ to fhe facts tfaat appellant has not caused fatal inji.iry over the head of Jitendra Kumar Lodhi by axe. Evidence of aforesaid witnesses are sufficient for draw?ing mference fhat appellant has caused homicidal death of Jitendra Kuinar Lodhi. 13. As regard the question of motive is concemed, fhe motive is only aid tn criminality and loses its unportance. ]n case of direct evidence even otherwise motive can be inferred on tihe basis of the nattire of injury, part of the body where injury .was caused, weapon used and other tike circumstances. 14. In fhe present case as per evidence appellant came with axe from his house and caused fatal and dangerous injury over the head of Jitendra Kiimar Lodhi by axe and caused incised wound of 22 x 11x3 C.M. over fhe head, most of fhe bones of scalp was found fractured and brain was badly dainaged, fhis shows that appeUant has caused fatal injury wifh intent to cause fhe deafti of Jitendra Kumar Lodhi. 15. After appreciating fhe evidence avaUable on record leamed Additional Sessions Judge, Khairagarh District Rajnandgaon C.G. has convicted and sentenced the appellant as aforementioned. 16. On close scrutiny of fhe evldence, we do not find any Ulegality or infirmlty in the judgment impugned. Consequently, crimmal appeal is devoid of merits same is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge