i ^J^; T^(/'ft. y *+ ..>'--''^<.L" ^i H1GH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 7Q3_of 2005 APPELLANT (in jail) RESPONDENT Shiv Nandan Yadao, son of Shyamlal Yadao, aged about 30 years, R/o village Chakla, P.S. Mungeli, Outpost Chilfi, Distt. Bilaspur (C.G.) Versus State of Chhattisgarh, through P.S. Mungeli, Distt. Bilaspur (C.G.) ,u APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 Coram: Hon. Shri T.P.Sharma and Hon. Shri N.K. Agarwal, JJ. PRESENT:- Shri Yogeshwar Sharma, counsel for the appellant. Shri Neeraj Mehta, P.L. for the State. ORAL JUDGMENT (Passedon 11-11-2011) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.05.2005 passed in Special Criminal Case No.86/2004 by the Special Judge under SC/ST (Prevention of Atrocities) Act, Bilaspur whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Bhagwat Satnami, a Member of Scheduled Caste, the Court below convicted the appellant under Section 302 ofthe I.P.C. and under Section 3 (2) (v) ofthe Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'Act of 1989') and sentenced him to life imprisonment with fine of Rs.2000/- each, in default to undergo additional rigorous imprisonment for 6 months on each count. 2. The conviction is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. :">,,~.<"w 3. As per the case of prosecution, on fateful day i.e. 5.2.2004 at about 2.40 p.m. the appellant chased Bhagwat (since deceased) upto school where he assaulted Bhagwat by axe. The appellant made repeated assaults over chest and vital parts of Bhagwat and caused fatal injuries by axe. The incident was witnessed by P.W.1 Parmeshwar, P.W.2 Triloki Prasad Jangde, P.W.3 Tihari and P.W.4 Ashwini Kumar. P.W.1 Parmeshwar immediately went to police outpost Chilfi and lodged F.1.R. Ex.P.5 and thereafter went to Community Health Center, Lormi for medical examination, where 3 incised wounds over scalp, chest and chin were found. The deceased was sent for treatment and during the course of treatment he died on 27.02.2004. Death of Bhagwat was intimated vide Ex.P.19. After summoning witnesses, inquest over the dead body of Bhagwat was conducted vide Ex. P.9. Dead body was sent for autopsy to C.l.M.S. Bilaspur. P.W.10 Dr. Arvind Shukla conducted autopsy vide Ex.P.16 and found the following injuries: 1. Treated injury over tempero parieto occipital region. 2. Fracture of clavicle bone. 3. Fracture of 4th rib on left side and 3rd & 4th ribs on right side. 4. Depressed fracture on left temporal, parietal and occipital bone. 5. Pieces of bones were coming out. Swelling in the brain. Cause of death was head injury and its complication. During the course of investigation, bloodstained and plain soils were recovered from the spot vide Ex.P.6. Spot map was prepared vide Ex.P.7. Patwari prepared spot map vide Ex.P.8. Blood stained clothsof the appellant were seized vide Ex.P.10. Appellant was taken into custody, who made disclosure statement of axe vide Ex.P.12 and the same was recovered at the instance of the appellant vide Ex. P.13. Caste certificate ofdeceased was seized vide Ex.P.14. 4. Statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code) were recorded. Seized articles were sent for chemical examination vide Ex. P.20 and presence of blood over axe and shirt seized from the appellantwas confirmed vide Ex.P.21. ;i ^ ^ 5. After completion of investigation, charge sheet was filed before J.M.F.C. Mungeli, who in turn committed the case to the Special Judge under Atrocities Act. 6. In order to prove the guilt of the appellant, prosecution examined as many as 14 witnesses. The accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. 7. After affording an opportunity to the parties, the learned Special Judge convicted and sentenced the appellant as aforesaid in paragraph 1 ofthisjudgment. 8. Shri Yogeshwar Sharma, learned counsel for the appellant and Shri Neeraj Mehra, learned P.L. for the State are heard at length. We have perused the record oftrial Court and thejudgment impugned. 9. Learned counsel for the appellant vehemently argued that although conviction of the appellant is based on the evidence of eye witnesses P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar but their evidence does not inspire confidence and trustworthy. There was no motive for commission of murder of Bhagwat. As per case of prosecution, appellant was under the influence of intoxication. The injuries were caused by the appellant to the deceased on 5.2.2004 and the deceased died on 27.02.2004 i.e. after lapse of 22 days of incident, which shows that fatal injuries have not been caused by the appellant and the deceased has died as a result of complication of injuries. These circumstances alone are sufficient to prove that act attributed to the appellant does not travel beyond the scope of Sectioh 304 part II of the I.P.C. Learned counsel for the appellant placed reliance on Jabar Singh v. State of M.P. 2011 (1) CCSC 110 (SC), in which, the Supreme Court has held that in case of death of deceased after 14 days of incident not because of gun shot injuries but due to periton/ffs, then the case falls under Section 326 ofthe I.P.C. hle placed further reliance in the matter of Dashrath Singh v. State of U.P., 2004 (3) CCSC 1301, in which, the Supreme Court, in the absence of proof of intention, converted the conviction of the appellant under Section 302 of the I.P.C. to Section 326 of the I.P.C. Learned counsel for the appellant also placed reliance ;/ /[.: o'9^ on a decision rendered in the matter of Bengai Mandal alias Begai Mandal v. State of Bihar, 2010 (1) CCSC 193 (SC), in which, the Supreme Court has held that deceased died after 26 days of the incident, as a result of Septicemia and not consequence of burn injuries, then the conviction of the appellant under Section 302/34 of the I.P.C. cannot be sustained and the case ofthe appellant falls under Section 304 Part-11 of the I.P.C. 10. On the other hand, learned counsel for the State opposed the appeal and submitted that as per evidence of eye witnesses P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar, the appellant chased the deceased - Bhagwat and Parmeshwar. Thereafter, he has caused repeated assaults over the chest, head and the chin of the deceased, which shows grave intention for causing homicidal murder with intent to cause his death. The aforesaid witnesses' evidence is sufficient for drawing definite conclusion that the appellant has caused homicidal death amounting to murder of Bhagwat. Learned counsel for the State placed reliance in the matter of Juthel and others v. State of Madhya Pradesh, 1995 Cri. L.J. 2909, in which, the Supreme Court observing that two fatal injuries on head of deceased resulting in extensive fractures of scalp and injury to brain tissues and other injuries on vital as well as non-vital parts of body of the deceased involving grievous fractures are sufficient to prove that appellant has caused injuries with intent to cause death and upheld the conviction for offence of murder of deceased. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death of deceased - Bhagwat on account of fatal injuries over the body of the deceased has not been substantially disputed on behalf of the appellant, but on the other hand also established by the evidence of P.W.9 Dr. Deepak Lauj and injury report Ex.P.15, P.W.10 Dr. Arvind Shukla and autopsy report Ex.P.16 and death was homicidal in nature. 12. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of eye witnesses P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and / '^ /i ^ ..-^..J-. P.W.4 Ashwini Kumar, who have witnessed the incident. As per evidence of P.W.1 Parmeshwar, appellant chased him and deceased - Bhagwat upto school and threw his shirt upon the deceased and thereafter he has caused repeated assaults over Bhagwat causing fatal injuries to him. His evidence is substantially corroborated by the evidence of P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar.'The defence has cross- examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their-testimony especially to the extent that these witnesses have not seen the incident and the appellant has not caused fatal injuries to the deceased. As per autopsy report, fracture on tempero-parieto occipital bone and clavicle bone, 4 rib of (eft side, 3 and 4 rib of right side have been noticed by the Doctor conducting the autopsy, which revealed that fatal injuries have been caused by the appellant over the chest and head i.e. vital parts of the deceased. The evidence of P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar is sufficient to prove that appellant has caused fatal injuries resulting into death ofthe deceased. 13. As regards the question of motive, in case of direct evidence motive loses its importance; even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the case of Jabar Singh v. State of M.P. (supra), the deceased died after 14 days of incident not resulting of gun shot but as a result oi peritonitis, but in the present case, the injuries found over the vital parts of body of deceased especially the fracture of clavicle bone, 3 ribs and fracture of scalp bone shows the nature of injuries to be fatal injuries, and therefore, the deceased died after the incident as a result of fatal injuries and its complications. The above case is fully distinguishable on grounds and facts of the present case. In the case of Dashrath Singh v. State of U.P. (supra), the deceased died after 38 days of incident, therefore, the Supreme Court held that appellant cannot be convicted under Section 302 or 302 of the I.P.C. but convicted him to Section 326 ofthe I.P.C., in the present case,as a result of 3 fatal injuries, deceased was under regular treatment and doctors have tried to save the deceased but they failed to save deceased on account of aforesaid fatal injuries. This case is also distinguishable on grounds and facts of the present case. In Bengai WIandal alias Begai Mandal v.State of Bihar ^/ / IA (supra) wherein the deceased died after 26 days of incident and on the ground of such fact, the conviction of appellant was converted to 304 part II of the I.P.C. Case of the above matter is that co-accused has been convicted under Section 304 part II of the I.P.C. instead of Section 302 of the I.P.C. considering his role lesser than the role attributed to the main accused. In the present case, the appellant has caused fatal injuries resulting into death of deceased. This is also wholly distinguishable on grounds of facts to the present case. Evidence of P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar is sufficient to prove that as the appellant has caused fatal injuries to the deceased, therefore, deceased died ofsuch fatal injuries. 14. In the present case, the appellant, without any reason, has caused three fatal injuries upon chest and head of the deceased resulting into 5 fractures and other injuries shows the common intention of the appellant. As held in the case of Juthel and others v. State of Madhya Pradesh (supra) that the intention can be gathered on the basis of nature of injuries, in the present case also three fatal injuries on the head have been considered as fatal injuries and the case is of homicidal death amounting to murder of deceased. 15. After appreciating the evidence available on record, the learned Special Judge has convicted the appellant under Section 302 ofthe I.P.C. Conviction of the appellant under Section 302 of the I.P.C. is based on credible, clinching and cogent evidence sustainable under law. 16. As regards conviction of the appellant under Section 3 (2) (v) of the Act, as per evidence of P.W.1 Parmeshwar, P.W.2 Triloki Prasad, P.W.3 Tihari and P.W.4 Ashwini Kumar, appellant initially chased Bhagwat along with Parmeshwar and thereafter he assaulted Bhagwat. The evidence adduced on behalf of the prosecution is not sufficient to establish that appellant has caused aforesaid fatal injuries to Bhagwat on the ground that Bhagwat is a Member of Scheduled Caste. Therefore, while convicting the appellant under Section 3 (2) (v) of the Act, the Court below has not considered insufficiency of evidence not sufficient for conviction of the appellant under Section 3 (2 (v) of the Act. 17. Consequently, appeal is partly allowed. Conviction ofthe appellant under Section 3 (2 ) (v) of the Act and the sentence awarded thereunder are hereby set aside. Conviction of the appellant under Section 302 of the I.P.C. and the sentence awarded thereunder are hereby maintained. Sd/- T-P. Sharma Judge • Sd/- N.K.Agrawal Judge r 7 A.'?- 7