mw,m,m ¥Fi 200 mm (W) WWW Wm W WW‘§WW €53x‘mm mwm Dhirendra Mishra, J This criminal appeal is directed against the judgment of conviction and order of sente'uee dated 31“ January 2003 passed in Snecial S T NO 202]“)001 ivherebv the learned Special Judge Amblkapui Sarguja under $chedu1ed Caste 85 Scheduled Tube {Plevention of Atrocmes} Actt 1989 has conmcted the aunellant under Section 302 of Indian tPenal Code and sentenced 111m With life miprlsonment, to pay a hne of Rs 5 000,! and 1n default of payment of nne to undergo additional RI for six months for causing I homicidal death of Bharat. DIVISION BENCH: HON’BLE SHRI JUSTICE DHLIRENDRA MISHRA & HON’BLE SHRI JUSTICE T.P‘. SHARMA CRIMINAL APPEAL N0. 204 OF 2003 r Appellant 111 Jail Vt‘ Versus §espond€12t : Through State 0f Chhattisgarh Poh'ce SEation Balrampur, Distt. Sarguja (CG) Rajkumar S] o Raimchandra Ram, Agad—33 years, Occupation— Agriculture, Kl o Tangarmahri, Thana—Balramplir, Distt. Sarguja. 1' Present: Shri Awadh 'I‘ripathi, co 111sa1 for th'appellant. ' Shri Kishorc Bhaduri, Addl. Advosats Gancral far ths State. ORAL JUDGMENT {Ddivered on 1‘“ Februaxy 200$) é mm m 200 WW,W,W Wm (W) WW WW %afmm mwm z 2. Case of the nrosecution, in brief, is that on 17.3.2001 at about 12.80 in the aftcrnoon PW—l Shivshankar Ram lodged a report mentioning therein that appellant Rajkumax has assaulted Bharat Kumar with battlezbge on his neck, as a result of which he has died. The sum and su bstance of the information is that there Was some quarrel between deceased Bharat Kumar and appellant Rajkuma‘r‘on account of this deceased not allowing the appellant to sit in his jee‘p. 3. After registering the First Information Report of EXP] 1 and~ Merg of EXP] 5, inquest over the dead bodxof Bharat was prepared vide EXP; 9. The dead b was sent for postmortem examination to Community Health C ter, Balrampur where Dr. N.K. Dutt conducted postmortem an gave his report of EXP] 6. The Weapon of offence battleaxe was t en into possession 1370111 the spot vide EXP] 8. Bloodstained sli pers belong'ng to the deceased and hloodstained bedding which the deceased was lying, were taken into possessions v Ex.Pf 10. Bloodstained and plain soil was taken into nossessi n from the place of occurrence vide EX.F/ ll. Sealed packet ontaining bloodstained clothing of the deceased was taken into ossession vide EXP] 12. Spot map was prepared vide EX?! 16 by e investigating oEoer. Spot map was also got prepared by Halk Patwari‘ vide EXP} 2. o o i WW,W,W Wm 111 200 mm (13W) WWW ammm WWW 3 WWWiwm %mm 4. Court of Chiaf Judicial committsd the case to the was recaived on transfar'fox u f 5. Thereaftsr. statement of under Section 313 of Cr; ‘appearing against him i1 innocence‘and false implica of incident he was mente Emblems. He also examin Kachchap (DW— 1) and Dr. E 6. Learned trial Court .- parties, convicted and i mentioned in yaragraph on '7. Homicidal death of B] from the evidence of PW—4 1 evewitnesses of the incide N.K.Dutt (PW-3), Who has proved the postmortem report of EX.Pf 6, in which he has noticed one incised wound of size 5" X S” X 2" over front of the neck, which w§as sudiciently deep and had dissected \-\\\t\he1eft carotid artery, trachea, veins and windpipe were also cut After completing investigation charge sheet was hled in the Magistrate, Ambikapur, who in turn Court of Sessions Judge and the same trial by learned Sp ecial Judge for trial. During trial the prosecution examined ten witnesses in all. the accused/appellant was recorded ?.C. in which he denied the evidence 1 the prosecution case and nleaded tion. He took a defence that at the time 11y disturbed and has some domestic ed two defence witnesses namely Vinay .P. Vaish (ow-2). after hearing counsel for the respective ientenced the accusedfappellant as a of this judgment. larat is not in dispute. Even otherwise, Kjay Kumar PW—5 Ramesh. who are the at and also from the evidence of Dr. l i . i , I t @ \ \ @ MW,W,W ;W m W 200 WW (W) maé§$ W ' and he further opined that cause 0f d€ath was shock as a result of €xcessivc bleeding due to injury over neck, the same was homicidal in nature and the injury was suEcient to cause death in the ordinary course of natitre, homicidal death of Bharat is established. *ef 8. ‘ Learned counSel for the ayyellarity submits that PW»4 Ajay Kumar aml PW-5 Ramesh both of them have admitted that the a§ipellant ahd the deceased had cordial relation, they used to visit each other’s . house and e was no dispute among them. Two months before the ineiden agipellant Rajkurnar was sudering h‘om malaria and was seriousy ill, therefore, he was admitted in Mission Hospital, Ambika ur where he underwent treatment for about 15-20 days. After charge hom the hospital, he used to did not do any work. When all the treatments bore no result because of sickness he 10st his mental balance and because of mental disturbance he assaulted the deceased. Even Dr. Vin y Kachchap (DW—l} has admitted in paragranh 5 of his statem t thatin the case history of the patient it was mentioned that co duct of the appellant was abnormal for the last 15, days. It was ther argued that it"s a case of single blow by the appellant therefore, considering the overall circumstances including fact that because of earlier sickness remain abnormally silent y\’\i\ijvithout any premeditati the appellant had lost hilmental balance, the incident occurred due to sudden provocation and the ‘ 's d r d e i WW, §? WE , W ‘\\\ 1 appellant assaulted only ( death of the déceased. 0 $1 beyond Section 394-1 or II just1£ed in convicting the Reliance is placed on the; 9. On the other hand. 1‘ a the impughed judgment of ‘ the aypellant is based on Aiav Kumar and PW-S Rax there were two other Witne: who had witnessed the i1 examined during trial. Thei FIR as also from the med onence was committed by state of mind. cannot b Kachchan has admitted ' the time of admission of th of abnormality and there psychiatrist. 10. We have heard learnt nerused the record as also “ \ ince with the battleaxe. which caused ce against the appellant does not travel of the IPC and the trial Couit was not appellant under Section 302 of IPC. udgment in the matter of Tholan Vs. :arned counsel for the State supporting he trial Court argued that comdction of the statements of eyewitnesses PW—4 aesh. Anart from these two Witnesses, ;ses namely Ravindra and Rain Naresh, icident, however, they have not been r version is dulv corroborated from the Lcal evidence. e appellant when he was in abnormal accept’éd as even DW—l Dr. Vinay paragraph 8 of his deposition that at e patient, he did not iind any symptom fore, he did not refer the patient to The argument that the :d counsel for both the parties and have :he impugned judgmient. t. .‘State of Tamil Nadu reportedin AIR 1984 8.0. 759. W m “Hi 200 mm (WW) WWW Han m Wmm 5. mmiwm %a=iman%w WW, @‘m,W Wm E 200 WW (W) simmf'q‘aia: mm wW Q a‘m‘mm WWW 11. So far as involvement of the accuS€dl annellant in the crime in question is concerned, it is’ ot disputed by learned counsel for the appellant. Even otherwi , from the statements of PW—4 Ajay Kumar and FW—S Rameshirw ' h is duly corroborated from the FIR and the medical evidence, it i established that the appellant was ‘ u fthe author of crime in questi 12. The only question for co sideration is — Whether in the facts and circumstances of the ca e and in View of the fact that the appellant assaulted only one with the battleaxe: his conviction under Section 302 of IPC is yr per? There is evidence available on record that the appellant was suhering nom disease malaria two months before the incident, Which he was hospitalized for a period of about 15-20 days. owever, none of the Witnesses has deposed that after discharge m the hosyital the appellant was- aaaressive or that he had lost mental balance to the extent that he did not understand the goonsequences of his act On the contrarv there is emdence of the doctor treating the appellant who did not find anv abnormahtv 1&1 his conduct The onlv emdence is that aftei being discharged fi‘om hospital the appellant used to remain unusuallv quiet It is true that motive for commission of the crime has been given bvi PW—l Shivshankar Ram and PW-2 Smt Laimn Bai that once the deceased did not allow the appellant to sit in his Jeep, therefore the appellant nurtured aiiiinos1ty against him but it appears f —fetched and the same cannot be s o . I r o 's MW, m, W WW “a 200 WW(W)‘ WWW WWW WWW 7 considered to b’é a reaso However, when thele are evewitnesses to the incident whose . motive takes backseat and becomes otive is something which is present in ‘ the mind of the accused h‘ ' self and the same can be inferred from the manner with which the assault was made, the weapon of fthe bodv and the foxce with which the instant case. ”there is evidence that the appellant came armed with a deadly weapon-battleaxe, assaulted the deceased on his vital part-neck with such a foxce causing fatal injury, as a result of which trachea, windpipe and left carotid arterv were cut and he died instantaneouslv. Thus. in View of above, it can safely be ini’ened that the appellant assaulted the deceased with an intention 13. The instant case is distinguishableon facts from the facts of the case of Thoian (supra) as in the present case there is no quarrel or provocation bv the deceased. 14. For the aforesaid reasons, we are of the considered opinion that there is no illegality or infirmity in the impugned judgment. The trial Court was justinad in convicting the appellant based on the material available on a 15. .In the result. the a ‘ to be dismissed and is he r Judge r ‘ ‘ $ evidencc mmain unrebutte irrelevant as intention or ¢ cm'ence used. the nortion o assault was made. In the to cause his death. \ Sd/- _ é sentencing him accordinglj record . under Section 302 of IPC and eal being devoid of substance deserves bv dismissed. #2» g TDHmENDRAMIsrmAl l ; i v Sd/- T.P. Sharma Judge mwnwm namm for the annellant to commit murder.