W'^^M ® HIGH COURT CWCHHATnSQARH AT BODRI. BILASPyR Crtminal AopedNo.157/2005 APPBLLANT VBRSU8 RB8PONDENT Vuxayaklal, aged about 30 years, s/o Shri Ram SinghKorram, Caste Granda, R/o I'exEtnipaiii^ Schoo^para, RAfce Station Antagarli, Distrtet North Baatar Kanker (CG) State of Chhattisgarh Through The Police Sfation Ant^axh, Distact; North Bastar, Kanker (CG) » CRIMINAL APPEAL U/8 374 (21 OF THB CX)DB OP CRIMINAL PROCUDERB Appearance: Shri Aviaash KuDiar Mishra, counsel fiw the appeUant, Shri D.K, Qwake, Goveniment Advocate fbr tfae State. Divisioa Bencli:- Hon'ble Shri T.P* Sliarma & Hoa»bleShri R.L.Jhanwar.JJ Per T.P.Sharma, J. ORALJUDGMENT (03.01.2011) Chatlenge m this appeal is to the judgmeat of comdcttoa and order of sentence dated 31.1,2005, passed by the 41ax Additional Sessions Judge (FTC), Kanker, Distdct Kariker (CG) ia S.T.No.217/2004, whereby and whercunder the leamed Additional Sessions Judge, after holdiag fhe appellaat guilty for coiaimission of culpable homicide amountmg to murder of Pyarelal, convicted the appenaat inider Section302 ofthe IPC and seixtenc^d for life imprisoiiment and fine ofRs.1000/-, m default of payment offiiie to fiurther undergo R.I. for 6 raonths, "'.^ 2. The conviction is iinpugned on ffae g3pouBd fhat wifhout fhere beixig axiy iota of evideaace siiJBBcieitt for coiiviction of fhe a^pefflanA, the learoied Addittonal Sessions Judge has coisvicted aaad sentenced fhe appellaat as aforcmentioxied and fhereby eoaxixmtted iUegality. 3. As per case of prosecution, oa account pf soxoe feixia^ dispute, while Pyarelal was sleepmg ia his coua-tyard along wifbi ofher family members, fhe appeUaiit assaulted him by axe o^m his cliest aad fhcreby caused his mstao.taneous death aiid tried teity away fix>m fhe spot. Fafher of the appellaxit aod tlue deeeased namety Ram. Sio.gh (PW-1), who was also sleepiag in fhe pipeimses,^ chased the appeUaat, but fhe appellaiit succeeded ia absccmdio^ from fhe spot Thereafter, father of the appeUaiit aisxl ot|ieai relatives shouted fhen other persons came to the house €rf^tiw appellaiit, Ram Siagh (PW-1) wentto Police Station aad lodged NRw vide Ex. P/l. The Investi^ting Officer left fbr fhe sceii^ cifi oecurrence aiid after summoaiag witaesses vide Ex, P/2, iaxp?est over fhe dead body of fhe deceased was prepared vide Ex« P/3, Spot map was prepared vide Ex, P/ 4, Axe was seized fooia fhe spot firom the father of the appeBant and fhe deceased vide Ex. P/S. Patwari prepared spot map vide Ex. P/7. Plahi soil aad folood staiaed soilwas recovercd firom tfae spotvide Ex, P/10* Dead bod^ was sent for autopsy to C.H.C. Antagarh vide Ex, P/13, wlier^ Dr. Saadeep Dwivedi (PW-10) conducted autopsy ^kle Ex. P/14 aiid found foUowtEig iajuries : i. Incised wound over left side of fhe chest of 2 %»x 2 x 4 Ya" depfh M. Right side of the heart was found cut iii. 5th, 6th and 7th left ribs werc fimnd jGractured. Mode of deafh was shock and deafh was^ homicidal ia nature. dofhes of the deceased were sefeed vid^ ®x«P/^. Seiz^d .4r,<' ..^•y^-^,, ..l.J . 'i-'''<-^^.?:^;''' -•"'';<•^. ^ ^ / ^^^ articles were sent for cheiGdcal examiEiatiou vide Ex^ ^2Q»;tj Presence of btood was confirmed vide Ex. P/ 22. StatexiieixtB QjPthurt witnesses were recorded xinder Sectibn 161 oftheCod^ofCNmisiatl^ Procedure, 1973 (in short tiie Code). 4. After completion of investigation, charge sheet was -^filed^^^ before the Judicial Magistrafe Pirst Class Bhanup^atapimr, w tum, comtTiitted fhe case to ttie Court ofSessioxxs, Jagdalimr frcmi where fhe leamed Additional Sessions Jud^ rcceived the case^on fcransfer for tdal. 5. In order to pnwe the guilt of fhe accused/appeMaait, i prosecutk>n exaxaiiied as xnaoy as 17 witiaesses, Aceused was | exaimned iinder Section 313 ofthe Code, in which, he denied llm j circumstaaces appearing against him, miKiceiice a^ mipUcation ia cnme ia questionwas claiined. 6. After afibrding opportunity of hearing to the partlfcs^ Itbe learaed Additioual Sessions Judge convicted aiid seaitenced fhe appeUant as aforesaid mentioned. 7. We have heard Shri Avinash Kumar Misliia, tearaed couasel for the appellaat and Shri D,K* Gwalre, learaed DG^veraja^ Advocate for ftte State^ perused the judgment impugned aad re^ord of the torial Court. 8. Leamed counsel for fhe appellaxit vehemeritiy argued fhat | conviction offhe appeUaat is substaatially based on fhe evidence ofRaai Singh (PW-1) father of the appeUant aiid the deceas^, ? whose evidence does not iaspire coiifidence aiid trustw<^thy^ per para 5 of his evidence, deceased was sleeptag in the courtyard aad he was also sleeping ia fhe courtyard, but as per para 22 of his evidence, he was sleepiag iaside the room< Both the parts of ^ the statements are contradictoxy, which shows fhat he has aot seen fhe iacideiit. Prosecution has iiot exaiaiixied aaay ofh^ •^•^. / Q. 1 '^-^ ^ ^ \^^/ 1 4 witEiess m support ofits case; therefore, in abseiace ofany evidexice agaiast fhe appellaat, he is entitied for acquittal^ 9. On the other haad, leamed counsel for tihe State 'rohem^xitly opposed fhese argumeiite aad subimtted that Rain Singh (PW-1) fafher of the appeUant aiid deceased was gresent at fhe tiaxie of incident. He chased the appeUaxit up to soxne extent^ bixt tlw^ appettant succeeded ia abscondiag from fhe spot He shouted along wifh his fatnily ixieiiibers fhea otih.er persons came aad saw the mjured body of fhe deceased, The appellaxit was pTOsexit la Idhs house along with feith.er aiid fhe deceased, but at about 1.00 ^tm iix n^it, he was not found ia his house aiid jEbr fhat fae haa iiat offercd any explaiiation fhat how, why aixd whea he left his Iro that too at late rdghtwithout ajay cause. He further subixiittedNliat evidence of Ram Siagh (PW^-1) bas been well corroborated byafct evidence of Raitiila (PW-4), who was also present ir^ fhe same house. 10. In oider to appreciate the arguments advaiiced wi behalf of the parties, we have examiaed fhe evideiice addiiced on befaadfof fhe prosecution. 11. In fhe present case, homicidal deatfa as a resiilt of fertal injuiy found over fhe chest of fhe deceased has not been substaatially disputed on behalf of the appellant, oa the ofher haad, it is estabHshed by fhe evideiace of Dr, Saixdeep Dwivedi (PW-10) aad autopsy rcport Ex. P/14 aiid deafh was hoinicidal m nature. 12. As regards complicily of the accused/appeUant iii crime &a question is concenied, conviction of the appellant is based on ftK evidence of Ram Singh (PW- 1). As per evidence of Ram Siagh (PW- 1) fafher offhe appeUant and deceased^ he, appeUaat aad deceased '/€7\, ''--^:^ 1 ^>^./ ^r^ '^^^^^i^^W^liiiiiiMiSi'tS^^^S^^ ?%%^?1^8^iS|l|IS%8KSB18%Ji^^ were sleepiag ia fhe saaie house» At about 12.00 ia the n^ht, ^ .^ appeUaat caxne froni outside; deceased Pyarelal was sleepixig ito tfa^ Courtyard; appeUant assaulted F^arclal by axe over his chest aadl caused his mstantaaeous deafh. He woke up a3id «aw l^t appeUaat leaviag axe aiid runiiing &OWL the spot He cliased 1toe|f^ appeUant, but fhe appellant succeeded in absdcmdiag ^ spot Thereafter, he iiarratedfhe incident to ofter falo^il^ 33^ His evidence to fhe extent fhat fhe appeUanA, wfao waa nixiiiiag fix)ixi the spot after leaviag fhe axe on the spot ia well corroboi^ted by the evidence of Raoiila (PW-4). As per case ofprosecution^ appellant was also present m his liouse, He was reqiaired to i present ia his house, biit after fhe mcideat appeUaat w^ xiot^^^ ^ fbund m his house. He was found m the house ofhis matena^l graad fafher Kheduraoi (PW-14) axxd he was brought by the viUa^rs ofviUage Ttemrupaiu on secoxid day on fhe groiind fhat h^ | has committed murder ofhis brofher Pyarelal and has fted fpom !.' ' "i •' ' '• : . " • ' ." • • .. ' the spot As per evidence of Ram Siagfa (PW-1) and Ramila (PW-4), appeUaat assaulted his brofher Pyarclal, who was sleepteg i©ftxe ^ Courtyard aiid after leaviag fhe axe, he fled firom the spot 1 S^oae fact is well corroborated by fhe fact fhat afiter fhe iiicidcxit^ l %aa not found in his house. This evidence is siiJEBcient for drawN®aii iaference that oiily fhe appellaat has caused fatal iEyuxy to PyareNl resulting iato his deafh. 13. As regards motwe is concenied, ia the present case, appeUaat has caused fatal mjury resultmg into ixistaiitaxieoiis deafh of his brofher Pyarelal by axe while Pyarelal was sleepiag iii the house aiid nobody was pre&ent to save hica, Injury was fatal aad iacised wound was also found ia fhe heart, This shows grave iiitention of the accused for causing hoiaucidal deatli of tite deceased. After apprcciatmg fhe evidence, learaed AddittoaiaJI Sessions Judge has convicted and senteuced the appellaat as aforesaid laentioned. sunita 14, On close scrutioy of fhe evidexice, we do not fiixl any w iUegatlly or infirmity in the Jiidgment of convictton aod oiider of ^ sentence of the appeUaat passed by fhe Court bdtow* | Gonseqiientty, fhe appeal beiag devoid of ments is liable t@ be f dismissed aad it is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^