DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA & HON'BLB MR. RANGNATH CHANDRAKAR. JJ, Crimlnal Appeal No. 560/2003 APPELLANT (In custody) RB»PONDBNT Versus Nageshwar Rao S/o Shankar Rao, aged about 26 years, resident of Chichu-da, P.S. Chakarbhata, Distt. Biiaspur (C.G.). State of C.G. Through P.S. Tarbahar, Bilaspur Distt. BUaspur (C.G.). CRIMINAL APPBAL UNDER SECTION 374(2» OF THE CODE OF CRIMIAL PROCEDURE. 1973. Presenfc- Shri N.K, Chatterjee, Advocate for the appellant. Shri Neeraj Mehta, P.L. forthe State/respondent. REVISIONER: Cr. Rev. No. 305 OF 2003 Bhasker Rao, aged 47 years, son of late Shri Krishna Rao, Railway driver, resident of Nayapara., police station Tarbahar bUaspur, tehsil and district Bilaspur (Chhattisgarh). RESPONDENTS ACCUSED VERSUS 1. 2. Nageshwar Rao, aged 26 year son of Shri Shanker Rao, Nanld alias Navtn Kumar, aged 29 years, son of Shri Shanker Ka.O, 3. Both residents of viUage Chichirda, Police Station Chakarbhata, tehsil Bilha, district Bilaspur (Chhattisgarh), State of Chhattisgarh, thorugh the police station Tarbahar Bilaspur, district Bilaspur (Chhattisgarh). ny\ CRIMINAL REVISIO^T UNDER SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE. 1973. Present- Shri Somnath Verma, Advocate for the revisioner/applicant. Shri N.K. Chatterjee, Advocate for the respondents No. 1 8s 2. Shri Neeraj Mehta, P.L. forthe State/respondent No. 3. JTJDGEMENT (Passedoa 16/11/2011) The following iudgment of ttie Court was_@assed DV T.P. Sharma, J:- 1. Criminal appeal No. 560/2003 tlted on behalf of appellant Nageshwar Rao agatnst his conviction and sentence and criminal revision No. 305/2003 filed on behalf of father of deceased Rajeshwar Rao namely Bhasker Rao for enhancement of sentence unposed upon Nageshwar Rao and against judgment of acquittal of co-accused Nanki alias Navin Kmnar dated 17/04/2003 passed by FB'fh Additional Sessions Judge, Bilaspur (C.G.) in sessions trial No. 37/2003 are being disposed of by thls common tudament. 2. Challenge tn this appeal is to the judgment of conviction and order of sentence dated 17/04/2003 passed by Fifth Additional Sessions Judge, Bilaspur (C.G.) in sessions trial No. 37/2003 whereby and where under while acquittuii co-accused Nanki alias Navin Kumar of fhe charge of under Section 302 read with Section 34 ofthe Indian Penal Code and convicted the appellant Nageshwar Rao under Section 302 of the Indian Penal Code and sentenced 'ant>?^!- ^^ yi <31s». ^ I ^;^t, . "f,. ® "l^: imprisonment for life and fine of Rs. 1000/-, in default of payment of fine aniount, additional rigorous imprisonment for 1 month for caustng culpable homicide aniounting to miirder of Rajeshwar Rao. Acquittal of Nanki alias Navm Kumar and lesser punishm.ent unposed upon Nageshwar Rao i.e. tnstead of imposiag capital piinishinent, punishment of itnprisomnent for life and line of Rs. 1000/- have been challenged bv father of deceased i.e. Bhasker Rao by filing crmiinal revision No.305/2003. 3. As per case of the prosecution, on fateful night of 25/06/2001 at about 00.30 A.M. at nieht both fhe appeUants were present in fhe house of Bhasker Rao. AppeUants deiaanded water and when Rajeshawar Rao was provided water to them, fhey caused serious injury by kntfe thereafter they Hed from the spot. Rajeshwar Rao was unmediately taken to the Railway Hospital where he was declared dead vide Ex. P-5. PW2 Sushila Bai, motlier of deceased Rajeshwar Rao & PW3 Radha Bai, matemal grandmother of deceased Rajeshwar Rao had witnessed the incident PW1 Bhasker Rao, father of deceased Rajeshwar Rao was present on the spot who lodged First Information Report vide Ex. P-1. Marg intimation was recorded vide Ex. P-6. Investieatine Offlcer left for scene of occi-trrence and after summoning the witnesses vide Ex. P- 2, inquest over the dead body of Rajeshwar Rao was —'9s, ^& /T-.. '?l-y° t.- ••' '.. .^. 'i^ rii '*>-,. ^ prepared vide Ex. P-3. Blood stained & plain soil were recovered from the spot vide Ex. P-4. Sealed cloths of deceased Rajeshwar Rao was seized vide Ex. P-9. Spot inap was prepared vide Ex. P- 10. Dead body of Rajeshwar Rao was sent for autopsy to Dharm Hospital, Bilaspur vide Ex. P-8. PW7 Dr. N.S. Chandel conducted autopsy vide Ex. P- 12 and found foUowing mJLiries:- (i) Partially chopping of neck and incised tnjiiry up to fhyroid cartilage level of 10 x3 x4 c.m. Mode of death was shock and death was homicidal in nature. 4. Statements of the witaesses were recorded under Section 161 of fhe Code of Crimmal Procedure, 1973 (in short the Code'). After com.pletion of the investigation charge sheet was fried before the Chief Judicial Magistrate, Bilaspiir who in tum committed fhe case to fhe Court of Sessions, Bilaspur from where leamed Fiftti Additional Sessions Judge, Bilaspur (C.G.) has received the case on transfer for trial. 5. In order to prove fhe guilt of the appeUants prosecution examined as many as 7 witnesses. Accused persons were examined under Section 313 of fhe Code where they denied the circumstances appearing agatnst them, innocency and false iiaplication in citme in question is claimed, <^ lc;s:a?^ "''%: ^'•,...2%* 6S: f / 6. After affording an opportunity of heartng to the parties, leamed Fifth Additional Sessions Judge, Bilaspur (C.G.) while acquitting co-accused Nanki alias Navin Kiimar, convicted and sentenced (fae appellant Nageshwar Rao as aforementioned. 7. Shri N.K. Chatterjee, Advocate for Nageshwar Rao & Nanki alias Navin Kumar, Shri Somnath Verma, Advocate for Bhasker Rao and Shri Neeraj Mehta, P.L. for the State are heard. Judgment impugned and record of the Comt below perused. 8. Shri N.K. Chatterjee, leamed counsel for Nageshwar Rao & Nanki alias Navin Kumar vehemently argued that conviction is based on the evidence of PW2 SushUa Bai, mother of deceased Rajeshwar Rao & PW3 Radha Bal, laatemal grandniofher of deceased Rajeshwar Rao which does not inspire confidence and trustworthy. Prosecution has not examtned independent witnesses of fhe vicinity. Incident took place at dark night and it was not possible to witness fhe incident by fhe witnesses. Evidence of PW2 SushUa Bai & PWS-Radha Bal ai-e not safe to rely for conviction ofappellant Nageshwar Rao. 9. Shri Somnath Venna, leamed counsel for revisioner/applicant Bhasker Rao vehementty argued that with a view to succeed a property, present appellant Nageshwar Rao along with co-accused Nanki alias Navtn .,-f^jiww^ ./-•^ Kuiaar has caused brutal murder of 10 years aged chUd Rajeshwar Rao. Evidence of PW3 Radha Bai is suf&cient to establish fhe fact that in sharing common intention wifh co-accused Nanki alias Navin Kumar, appeUant Nageshwar Rao has committed mi-irder but Court below has acquitted the accused Nanki alias Navtn Kumar and fherebv committed an Qlegality. 10. Shri Somnath Verma, leamed coimsel for revisioner/applicant Bhasker Rao further argued that considering the motive for cominission of offence, present case falls wifhin. fhe category of rarest of rare and capital sentence would have been unposed upon appeHant Nageshwar Rao and co-accused Naaki alias Navin Kumar but not convicting Nanki alias Nann Kumar and not sentencmg both the appellants capital sentence, Court below has coiamitted an illegality. 11, On the other hand, Shri Neer^ Mehta, P.L. for the State argued that prosecution has proved its case beyond all shadow of doubts and Court below has rightly convicted and sentenced fhe appellant Naseshwar Rao. 12. In order to appreciate the argument advanced on behatf of the parties, we have examined the evidence adduced on behalf of the parties. 13. In fhe present case, homicidal death of Rajeshwar Rao by partially chopping of neck has not been substantiaUy /y disputed on behalf of the appellant or any of fhe party, on fhe other hand, otherwise also established by fhe evidence of PW7 Dr. N.S. Chandel & autopsv report Ex. P-12 and death was homicidal in nature. 14. As regards the complicity of fhe appeUant Nageshwar Rao & acquitted co-accused Nanki alias Navui Kum.ar in criiue in question, finding is based on the evidence of PW1 Bhasker Rao, PW2 SushUa Bai & PW3 Radha Bai. As per evidence of PW 1 Bhasker Rao, at fhe tune of incident, both the accused were present tn his house where his son Rajeshwar Rao, PW2 SushUa Bai his wtfe, PW3 Radha Bai his inother-tn-law were also present, both accused are matemal erandsons of FW3 Radha Bai and deceased Rajeshwar Rao was also matemal grandson of PW3 Radha Bal. As Der evidence of PW2 Sushila Bai, appeUant demanded water and when Rajeshawar Rao was provided water to Nageshwar Rao fhen Nageshwar Rao assaulted him by knife fhereafter they tled from. fhe spot. PW3 Radha Bai has substantially corroborated the evidence of PW2 Sushila Bai who has also deposed that accused Nanki alias Navin Kumar was holding hands of Rajeshwar Rao at fhe time of commission of offence but thls fact does not tind m Ex. D-3 her statement recorded under Section 161 of fhe Code. Defence has cross-examined these witnesses at length but has not been able to elicit anythms m fhetr cross-exaimnation to discredit fheir testunony relating to the fact that appellant Nageshwar Rao has not assaulted by kntfe to Rajeshwar Rao. Aforesaid evidence is sufficient for drawing an inference that Nageshwar Rao has caused homicidal death of Rajeshwar Rao but same is not suflicient for drawing an inference that Nageshwar Rao has caused homicidal death of Rajeshwar Rao in sharing common uitention with co-accused Nanld alias Navtn Kumar. 15, As regard the question of motive is concemed, in case of dtrect evidence moti.ve looses its unportance even otherwise it can be established by the nature of injury, part of body where injuiy tnflicted, weapon used and like other circumstances. In the present case, Nageshwar Rao has caused hoinlcidal deafh of Rajeshwar Rao who was aged 10 years and that too by partially chopping of neck by kmfe, there was no occasion or propriety for causing such homicidal death fhat too in a&resaid manner. This shows definite intentlon of appellant Nageshwar Rao for causia^ homicidal death of Rajeshwar Rao with tntent to cause his death. 16. ASter appreciating the evidence avaUable on record, learned Fifth Additional Sessions Judge, Bilaspur (C.G.) while acquitting co-accused Nanki aJias Navin Kumar on the ground of insnfficiency of evidence, has rightiy convicted r 'fl- c ' and sentenced the appellant Naseshwar Rao iinder Section 302 of fhe Indian Penal Code. Conviction of appeUant Nageshwar Rao is based on legal, clinching & credible evidence sustainable under fhe law, Acquittal of co- accused Nanki alias Navin Kumar is also just and proper in absence of any legal, credible and clinchtng evidence. Prosecution has not proved fhe fact that it was fhe case of rarest of rare for unposing capital sentence. Consequently, b\r convicttng and sentencing appellant Nageshwar Rao, acqiiitting co-accused Nanki alias Navin Kumar and not imposing capital punishment, Court below has not committed any ille^lity reqniring any interference. Consequently, criminal appeal No. 560/2003 filed on behalf of appellant Nageshwar Rao & criinmal revision No. 305/2003 filed on behalf of revisioner/applicant Bhasker Rao are liable to be dismissed and are hereby dismissed. SdA l-f. Sharoia Judge Sd/- R.N. Chandrakar Judge ...,-. f