's^. :;i .^ HIGH CQURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HQN'BLE MR. T.P. SHARMA & HON'BLE MR. GULAM MINHAJUDDIN, JJ. CRIMINAL APPEAL N0. 629/2006 APPELLANT IN JAIL VERSUS RESPONDENTS fclBg»i.HSS33N®ga Narayan Verma, Son of Tejram Verma, Aged about 52 years, R/o Village Kumhari (Jara), P.S. Kharora, Distt. Raipur (C.G.). State of Chhattisgarh, Through S.H.O. of P.S. Kharora, Distt. Raipur (C.G.). APPEAL U/S. 374(2) OF CRIMINAL PROCEDURE CODE. Present:- Mr. Pawan Kesharwani, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. ORAL-JUDGEMENT (Passedon 13/07/2011) The following iudgment of the Court was passed_bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgm.ent of conviction and order of sentence dated 28/4/2006 passed by 10th Additional Sessions Judge fF.T.C.) Raipur (C.G.) in Sessions Trial No. 19/2006 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his brother Narottam Verma, convicted the appellant under Section 302 of the Indian Penal Code and sentenced in-iprisonment for life and ;S!assti'M fine ofRs. 10QO/-, in default of payment offine amount additional rigorous imprisonment for 6 months. 2. Conviction is impugned on the ground that without any iota of evidence sufficienf for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. 3. As per case of prosecution, on fateful day of 3/ 12/2005 at about 8.30 A.M. appellant was holding stick and caused repeated assault over the head and other part of the body of Narottam Verma (since deceased) and caused his instantaneously death. At the time of incident, PW1 Bhushan Lal Verma & PW2 Mahesh Ram were present on the sppt and they tried to rescue the deceased Narottam Verma but PW2 Mahesh Ram was threatened by present appellant then he left the place of incident. After commission of incident, appellant went to the Kotwar of the Village PW8 Chetandas MEuiikpuri whom he made extrajudicial confession and admitted the guilt thereafter PW8 Chetandas Manikpuri (Kotwar of the village) went to Police Station and lodged Rojnamcha vide Ex. P-19. Investigation Officer proceeded for spot and after inquiiy from PW8 Chetandas Manikpuri (Kotwar of the village) recorded Dehatinalishi vide Ex. P-6 and Dehati Marg intimation —..t^- s ..^.i.siKB.^ vide Ex. P-5. Finally, numbered Marg was recorded vide Ex. P-29. On the basis of Ex. P-29, numbered First Information Report was lodged vide Ex. P-30. Investigation Officer after summoning the witnesses vide Ex. P-9, inquest over the dead body of deceased Nartotam Verma was prepared vide Ex. P-10. Bamboo stick was seized fro.m the appellarit vide Ex. P-2. Patiyari prepared spotmap vide Ex. P-3. Investigating Officer has prepared spot map vide Ex. P-7. One motorcycle and pair of Chhapals were seized from spot vide Ex. P-11. Blood stained and plain soil were recovered from the spot vide Ex. P-12. Sealed cloths of deceased Narottam Verma was seized vide Ex. P-13. Seized articles were sent for chemical examination vide Ex. P-14. Presence of blood was confirmed on stick seized frora the appellant vide Ex. P-32. Dead body of Narottam Verma was sent to Primary Health Center, Kharora vide Ex. P-31. PW15 Dr. G.R. Kurre conducted autopsy vide Ex. P-16 and found following injuries:- (i) One lacerated wound over lateral aspect of eyebrow of 2 c.m. x 1 c.m. x 0.5 c.m. (ii) One lacerated wound over right ear of 1.5 c.m. x 1/2 c.m. x 0.3 c.m. (iii) One lacerated wound over left temporal region of 2 c.m. x 1 c.m. x 0.2 c.m. 'rn'F-^*^.''^"' (iv) Multiple abrasions were present over back, left forearm, left leg laterally, right kneejoint, dorsal of right hand, right knee and upper part of chest at colure region. (v) Huge contusion extended over neck region, both shoulders at anterior 8s posterior and super upper part of chest and throat region. (vi) Contusion over occipital region and right parietal region. (vii) Subcutaneous "hemorrhage was found under the injuries. (viii) One lacerated wound found over liver of 10 c.m. x 2 c.m. x 3 c.m. Mode 6f death was shock and death was homicidal in nature. Stateraents of the witnesses were recorded under Secfion 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After co'mpletion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raipur who in turn committed the case to the Court of Sessions, Raipur from where learned 10th Additional Sessions Judge (F.T.C.), Raipur (C.G.) has received the case on transfer for trial. In order to prove the guilt of the accused/appellant prosecution examined as many as 21 witnesses. Appellant was examined under Section 313 of the Code where he denied the eircumstances appearing against him, innocency and false implication in crime in Iggsgij-ffifg' ..»ffS^B''a'' ailiSE®®'" .rii^ question is claimed. Appellant has taken the defence that he has snatched the stick from deceased Narottam Verma to save himself otherwise he would have been killed by Narottam Verma. 6. After affording an opportunity of hearing to the parties learned 10th Additional Sessions Judge (F.T.C.), Raipur (C.G.) has convicted and sentenced the appellant as aforeruentioned. 7. Mr. Pawan Kesharwani, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for the Sfate/respondent are heard. Judgment impugned and record of the Court below perused. 8. Learned counsel for the appellant veheraently argued that appellant is residing at Raipur had gone to village for money and on account of sudden quarrel, without premeditation appellant has caused injuries to his brother Narottam Verma and also in exercise of right of private defence and has snatched the stick which deceased Narottam Verma was holding. Appellant has not con-imitted homieidal death of Narottam Verma with intent to cause his death. 9. Learned counsel for the appellant further argued that an_fcu=LhalE_ojLfche_Eirosecution does not ;'l'':il'!l"''"' .isgiiasgs^s that too conviction ofthe appellant for heinous offence punishable under Section 302 of Indian Penal Code. 10. Learned counsel for the appellant also argued that act attributed by the appellant does not travel beyond the scope of under Section 304 Part-II of Indian Penal Code in which present appellant is in custody since 4/12/2005. 11. On the other hand, learned P.L. for the State/respondent opposed the appeal and argued that present appellant has caused homicidal death of Narottam Verma with intent to cause his death even he has caused injuries after intervention by PW2 Mahesh Ram shows his grave intention for causing homicidal death of Narottam Verma. On the basis of evidence adduced on behalf of the prosecution, Court below has rightly convieted and sentenced the appellant as aforementioned. 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe parties. 13. In the present case, homicidal death as a result of fatal injury found over the body of deceas.ed Narottam Verma has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established ..^,,?.^^-^ a.^,.,^;agp:-'" ' 's"'£'-?sfw"s'''s'.'1' i-^--i-Kpi-f-:S^'"^~~ ~ by the evidence of PW15 Dr. G.R. Kurre and autopsy report Ex. P-16 and death was homicidal in nature. 14. As regard the complicity of the appellant in crime in question is concerned, conviction of the appellant is substantially based on the evidence of eyewitnesses i.e. PW2 Mahesh Ram, PW5 Aatma Ram 8s PW6 Surajbai Sahu, wife of PW5 Aatma Ram. As per evidence of PW5 Aatma Ram, he was working in his barn, he heard the sound of quarrel then he came out from his barn where he saw that appellant was assaulting his brother Narottara Verraa by stick and PW1 Bhushan Lal Verma & PW2 Mahesh Ram were intervening the incident, they were trying to rescue the Narottam Verma, Narottam Verma fell down on the floor as a result of injury then appellant went to the PW8 Chetandas Manikpuri (Kotwar of the village) whom he made extrajudieial confession. Evidence of PW5 Aatma Ram has been substantially corroborated by the evidence of PW6 Surajbai Sahu, wife of PW5 Aatma Ram who has also present in her barn along with his husband i.e. PW5 Aatma Ram. 15. PW2 Mahesh Ram has also substantially corroborated the evidence of PW5 Aatma Ram and has deposed that he has tried to rescue the Narottam Verma but he threatened by present appellant then he left the scene m igtes^ge*53''""" fv'" .,^t ^&i s- gs'SSB3'3'3""1' 16. of occurrence. PW1 Bhushan Lal Verraa whom prosecution has declared hostile has also supported the case of the prosecution to the extent that he has seen the injured bo.dy of Narottam Verma and appellant was also present on the spot. Defence has cross-examined these witnesses at length but have not been able to illicit anything in their cross-examination to discredit their testimony specially relating to the fact that present appellant has not caused fatal injuries to Narottam Verma resulting into his death. Appellant has also taken the defence that he has also received injury and he was examined by doctor vide Ex. P-18 which reveals that four abrasions were found. Prosecution has not explained the aforesaid injuries. As held by the Supreme Court in the matter of LAKSHMI SINGH AND OTHERS v. STATE OF BIHARi that in all cases of injury found over the body of accused/appellant prosecution is not under obligation to explain the injuries specially when injuries were triflein nature. In the present case, evidence of PW5 Aatma Ram well corroborated by the evidence of PW2 Mahesh Rarh & PW6 Surajbai Sahu is sufficient to establish the fact that present appellant has caused homicidal death of Narottam Verma. (1976) 4 SCC 394 ._i^.«i,.-i.'^Uiia,( ^^ ^.s.r' '^'^,^^%?<-^'-.^AC '"' 17. As regard the question of intention is concerned, same can be gathered from tRe circumstances, nature of injuiy, number of injury, weapon used and other like circumstances. In the present case, as many as more than 10 injuries have been noticed in the autopsy report by docfors, this is not a case of single blow even as per evidence of PW2 Mahesh Ram, he has tried to rescue the Narottam Verma but he threatened by present appellant shows grave ihtention of the appellant for causing homicidal death of Narottam Verma with intent to cause his death. 18. After appreciating the evidence available. on record learned 10th Additional Sessions Judge (F.T.C.), Raipur (C.G.) has rightly convicted and sentenced the appellant as aforementioned. 19. On close scrutiny of the evidence, we do not find any. illegality or infirmity in the conviction and sentence imposed upon the appellant. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed. -— - - - - -^ Sd/- '•r Sharma Judge Sd/- G. Minhajuddin Judge