HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHR) DHIRENDRA MISHRA. & HON'BLtSHRTR.N. CHANDRAKAR. JJ Cr.A.No.149of2002 Present: Ms. Sangeeta Mishra, counsel for the appeltant Mr. Sandeep Yadav, Dy. Govt. Advocate forlhe State. al Judament (19mJuly,2010) PerDhffWKlfa Affshra. J 01. The appeltant has preferred this appeaj under Section 374(2) of the Code of Criminal Procwlure against the judgment of convtotkm and order of sentence dated 29th January, 2002 pas^d In S.T.No.379/2000. whereby teamed Sessions Judge, Sargu|a at Ambikapur, has convicted ttie appellant under Section 302 of ttie IPC and sentenced him to undergo imprisonment for life, for rausing homicidal d^ith of Reeman Korwa. 02. Briefly stated, case of the prosecution is that on 10th September, 20CK) at about 12 noon, deceased Reeman and appetent Ratoiu were present in tfie house of Dhansai (PW-6). At that time, deceased Reeman was standing near the house of Dhansai when the appellant, under the influence of liquor, on account of dd enmity, assautted the deceased with a dub on his head. He further assaulted the deceased by club on his back and abdomen. Report of the inddent was todged on 11.9.2000 by deceased Reeman, v^iich was recorded »n ttie Rojnamchasanha of Ex.P/17C. Thereafter, Reeman was referred to Community Heattti Center, Batouli for treatment vide Ex.P/18, where Dr. Roop Singh (RA/-14) examined him and gave his report of Ex.P/ISA. However, Reenian died on 14.9.2000. Information about his death was gh^en by Dr. B.P. Chandra (PW-12) vide Ex.P/19. After preparing inquest over ^) ADpetlant (In Jail) Ratnu Korwa, S/o Dalsal, aged aboirt 42 years, Occupation : Agricufture, R/o Village: Ghoghra-Parsadhab, Potice Stetion : Batouli, Dlstrict: Sarguja (Chhatttegarh) Versus Resoondent •• State of ChhaUisflarh, Through Pdice StaUon : Batouti, DJsfrict : Sarguja (^nbikapur) ^^^^. .^fc^^ 1 ^.1^} .^^•z' L.. -l' the person of ttie deceased vide Ex.P/15, d^id body was sent fw autopsy to Government Hospital, Ambitaipur, where Dr. Sanjay Tripathi (PW-8) conducted postmortem and gave h«s report of Ex.P/5. On the disclosure statement of the accused, weapon of offence - club was taken into possession vide Ex.PM. 03. After completing investigatton, charge sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who, in tum, committed ttie case to ttie Court of Sesstons Judge for triat. 04. Learned trial Court framed charge under Section 302 of the IPC against the appellarrt, who abjured his gujtt. The prosecution, in order to establish charge against Ihe appellant, examsned 14 witnesses in all. Thereafter, statement of the s^iused was recorded under Section 313 of Cr.P.C., jn whteh he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. However. he did not examine any witoiess in his defence. 05. Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paia-1 oS thisjudgment. 06. Homicidal death of Reeman Korwa is not in dispute. Leamed trial Court on the basis of medico legal injury report (ExP/ISA) proved by Dr.Roop Singh Parihar (PW-14). who has categoricaHy denied the suggestion of the defence that the injuries could be caused by fall, and stated ttiat he had talked witti the deceaswl white examining him and looldng to the gravity of Ihe injuries, had referred the patient to Ambikapur, and further on the baas of evidence of Dr. Sanjay Tripathj (RA/-8). who conducted postmortem and proved the report of Ex.P/5, in which he f<xind stHched wound on right forehead of the deceased just near th® eyebrow above 1 cm and dotted blood underiying tissues cut up to the bone and on intemal examination found presence of haematoma over the brain membrane on ttie right parietal and right frontal parietal tobe and tear of smatl intestine of size 1 cm x 1 cm and opined the cause of death as a result of shock due to h^id injury and tearing of intestine and death was homiddal in nature, homicidal death of Reeman has been hetd to be established. We V; are in agreement with the above finding of learned trial Court, which is based on the evidence avaitabJe on record. 07. Ms. Sangeeta Mishra, learned counsel for the appeUant, vehemently argues that even if ttie jnvoh/ement of the appeltant is heid to be estabtished on Uie basis of evidence of eyewitness Dhansai, from perusal of evidence of ttiis witness, it is evidwit Ihat the incident took ptace as the appellant and ttie deceased were engaged in quarrel under the influence ofliquor and tiie deceased was threatening the appellant to come out ofttie house of Dhansai. Thus, the incident occurred all of a sudden, on the spur crf moment, without any premeditation due to sudden provocation gh/en by the deceased. Therefore, leamed trial Court was not jusfified in convictjng ttie appeJlant under Section 302 of the IPC as Uie offence against the appeltant does not travel beyond Section 304, Part-llofthetPC. 08. On the ottier hand, tearned counsel for the Stete has suf^ortad the impugned judgment of the trial Court 09. We have heard tearned counsel for the parties and perused the materia! availabte on record as atso impugnedjudgment. 10. Conviction of the appellant is based on the evideroe crf EMiansai (RA/-6). who is an independent wtness and in vrfiose house the inddent occurred. This witn^s has deposed tiiat ttie incklent took place at 10-11 o'clock. Ratnu came to his house first and thereafter, Reeman came there. After talk'ing for some time, he asked them to 90 to ttieir respective houses. Howevw, Reeman and Ratnu were engaged in heated exchang^; he forbade them from quarreling in his house and asked ttiem to quarrel outside <rf his house, whereupon Reeman went out, v^iereas Ratnu stayed back. When Reeman came inside ttie house to see as to virtiy Ratnu is not coming out, Ratnu assautted Reeman with a club on his head, as a resuM:, Reeman sustajned injury over his h^d and fell there. After he fBll, Ratnu gave anottier latht blow on his tock and thereafter, Idck blow on his abdomen. Btood ^arted oozmQ from his head. Thereafter, Ratnu fled from there. The vtll^es gattiered ttiere. Reeman asked hjm to leave him in hte house, whereupon Reeman was taken to his house. He had advised ttiat El—.—.-,.___ ^-^-^. ,^^.-^ ..^- •'^ Reeman should be taken to hospilal and police station. He also went to police station, where Reeman lodged ttie report. In ttie cross-examination, he has admitted that Reeman and Ratnu both had consumed tiquor. Reeman is married to Ratnu's sister and Ratnu is married to Reeman's sister. He has categoricatly denied the suggestjon that due to scuffle between the deceased and ttie appellant, the deceased sustained injuries, and reiterated that the appellant assaulted the deceased before him on his head. The defence could not elicit anything from this witness in his cross- examination, which could make his evidence untrustworthy or unreliable. 11. The version of Dhansai is duly corroborated from the evidwice of PW- 4 Viphni Bai - wife of the deceased. This witness has also deposed that Dhansai called her husband to his house at 6 am aml Dhansai informed her that Ratnu has assautted Reeman by club. Her husband was brought home by Mohan from the house of Dhansai. He had sustained jnjuries on his head and abdomen and his clothes were stained with blood. Her hustond told her that Ratnu has assaulted him. Thereafter, they all had gone to police station with Reeman. She has admitted ttiat her husband and the appellant came back from Dhansai's house in an inebriated condition. 12. Learned trial Court relying upon the evktence of Dhansai (PW-6), Moharsai (PW-2), Buddhuram (R/V-3) & Viphni Bai (RA/-4), has held that the prosecution has proved its case against the appdtent beyond reasonable doubt. The trial Court has ftirther relied upon the evidence of Kaluram (PW-5) and Lakhanram (PW-6), who are wftnesses of memorandum of Ex.P/3 and seizure of weapon of offence - lathi victe Ex.P/4. 13. On close serutiny of the evidence availabte on record, particulariy the evidence of Dhansai (R/V-6). which is further corroborated by the evidence of other witnesses, who were informed by Dhansai that the appellant assautted the deceased with dub, we are of the opinion tiiat the prosecution has proved invoh/ement of the appellant in the crime in question beyond reasonabte doubt. @ f 14, So far as ttie argument advanced by leamed counsel for the appellant tiiat Vhe offence against the appetlant does not travel beyond Section 304, Part-11 of the [PC, is concemed, we are unable to accept this argument as from ttie evidence of eyewitness Dhansai, we find that the appellant and the deceased both were asked to 90 out, however, appellant stayed back and when the deceased came inside the house to see as to why the appeltant is not coming out, he opened assault with dub on hjs head and continued to assautt him even after he fell on the ground. There is no evidence on record to show ttiat ttie deceased was amfied with any weapon or he in any manner tried to a^autt the appellant awid as such, there was any apprehension of death or grievajis hurt to the appellant. Thus, looking to the manner in whteh the assault was made, which resutted in grievous injuries over head, abdomen and tearing of intestine, interttion of the appeltant to cause death of Reeman could safely be gatttered and therefore, the trial Court has rightly convicted and sentenced the appeltant under Section 302 of thelPC. 15. On the basis of aforesaid discussion, we are of the opinton that there is no illegalHy or jnfirmity in the impugned |udgment, The appeal is without any substance; the same deserves to be and ts, accordingly, dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Y^