HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT/: (Accused) (In Jail) RESPONDENT: Criminal Appeal No.215 of 2005 Budagoo Sai s/o Shri Lal Bihari Kanwar aged about 45 yrs, Cultivator, r/o Bhagora \ (Kariya Munda) PS Farsabahar Distt. JashpurCG . Versus State of Chhattisgarh Through PS . Farsabahar Distt. Jashpur CG {Criminal appeal under Section 374 (2) of Code of Criminal Procedure 1973} U;! Present: '^ Mr. Anurag Dayal Shrivastava, counsel for the appellant. Mr. S.R.J. Jaiswal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharmaand Hon'ble hflr. R.L. Jhanwar. JJ ORAL JUDGMENT (12-1-2011) T.P.^harma, J: - 1. Challenge in this appeal is to the judgment of conviction &order of sentence dated 22-1-2005 passed by the Sessions Judge, Jashpur in Sessions Trial No.68/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicideamountlng to murder of Mohar Sai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in defaultof payment of fine to further undergo Rl for two months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Couri: has convicted'& sentenced the appellant, and thereby committed illegality. . 3. As per case of the prosecution, on the fateful day of 5-4-2004 at about 5 p.m. the appellant assaulted Mohar Sai (since deceased) by spade and caused his instantaneous death at Village Bhagora, Police Station Farsabahar, Distt. Jashpur. The incident was seen by Padmohan (PW- 1) - brother ofthe deceased, who immediately asked the appellant as to . why he hascaused injury to his brother. Thereafter, Padmohan (PW-1) narrated the incident to Biharilal (PW-2) & other persons and went to the police station which is 8 kms. away from the place of incident andlodged FIRvide Ex.P-1 withinfour hours of the incident. Merg was recorded vide Ex.P-10. The Investigating Officer left for the scene of occurrence and after summoning thfe witnesses vide Ex.P-2, prepared inquestover the dead body of the deceased, vide Ex.P-3. BIood stained soil and plain soil were recovered from thespot along with cap and cycle ofthe appellant, vide Ex.P-4. Dead body of the deceased was sent for autopsy to Community Health Centre, Farsabahar vide Ex.P-11. Dr. M. Tigga (PW-5) conducted autopsy vide Ex. P-7 and found following injuries: - (1) Bruise over left tempQral region size 5" x 4", skin open, haematoma present size 3" x 2 Vf, left temporal bone fractured size 1 1A" x 1 c.m., extra dural haematoma size 4" x 3". (2)Bruise over right parietal region size 4" x3", skin open, haematoma present size 1" x 1/2", depressed fracture on right parietal bone. , (3) Lacerated wound onoccipital region size 3" x1/^" x 1". (4) Lacerated wound on left mastoid region size 1 %" x %" x %". (5) Lacerated wound on left frontal region size 2" x Vi' x %". Fracture of temporal & parietal bones and laceration of brain matter were also found. Cause of death was head injury due to fracture of left temporal bone, right parietal bone, haematoma and rupture of brain membrane. Death was homicidal in nature. During the course of investigation, the appellant was taken into custody, he made discloser statement of spade vide Ex.P-5 which was recovered at his instance vide Ex.P-6. Spade was examined by Dr. M. Tigga (PW-5) and she opined vide Ex.P-Sthat the injuries found over the body of the deceased could becaused by the aforesaidobject. Patwari prepared spot map vide Ex.P-9. Investigating Officer also prepared spot map vide Ex.P-12. Clothes of the deceased were seizedvide Ex.P-15. Seized articles were sent for chemical examination vide Ex.P-16. 4. Statementsof the witnesses were recorded under Section 161 ofthe CrPC. After completion ofinvestigation, charge sheetwas filed before the Courtof Chief Judicial Magistrate, Jashpurwho committed the case tb the Court of Sessions, Jashpur where thetrial was conducted. •r^-.. 5. In order to prove the guilt of the accused, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 ofthe CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. \ !! . 6. After affording opportunity of hearing to the parties, learned Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learnedcounsel for the parties, perused thejudgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially bdsed on the evidence of chance witness Padmohan (PW-1) who is also retative witness of the deceased, whose evidence does not inspire confidence and is not trustworthy. tn the present case, Lodharam to whose house this witness has gone to visit and wife of the appellant, who was present at the time of incident and was eyewitness, were substantial witnesses to unfold case of the proseeution, but for the reasons best known to the prosecution, the prosecution has notexamined Lodharam & wife of the appellant, even the prosecution has not cited Lodharam as witness. As per case of the prosecution, Padmohan (PW-1) has seen the incidentfrom a distance of 250 mts. and has identified the appellant whichis not possible. This witness has seen the incident that the appellant is causing repeated injuries to his brother, but he has not rushed towards the spot to save his brother. He has shouted, but no person from the houseof Lodharam came out. As per his evidence, other persons were also moving near the place of incident, but the prosecution has not examined other witnesses. Conduct of Padmohan (PW-1) appears to be suspiciousand withoutany further corroboration from independent sources, evidence of Padmohan (PW-1) is not safe to rely that too for conviction bf the appellant under Section 302 of the IPC. L^arned counsel submits that suspicion, however grave cannot take the place of legal proof and in absence of proofof offence beyondall reasonable doubts, theappellant isentitled for acquittal. ' .- 9. On theother hand, learnedState counsel opposes the appeal and submits that the appellant has committed offence punishable under Section 302 of the IPC, evidence of Padmohan (PW-1) inspires confidence and is trustworthy. The prosecution has not examinedwife of the appellant on the ground of her relationship with the accused/ appellant. The prosecution is not under obligation to examine all witnesses. Evidence of Padmohan (PW-1) is fully reliableand well corroborated by the promptly lodged FIR. \' : . . . .-.--.. ..- . 10.1n order to appreciate the argumentsadvanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. ^ 11.1n the present case, homicidal death ofthe deceased as a result of fatal injuries found of his bodyhas not been substantially disputed on behalf ofthe appellant,otherwisealso it is established by theevidence of Dr. M. Tigga (PW-5) and autopsy repprt Ex.P-7 that death of the deceased was homicidalin nature. ' 12.As regardscomplicity ofthe appellant in the crime in question, conviction of the appellant is substantially based on the evidence of Padmohan (PW-1). As per evidence of Padmohan (PW-1), on the fateful day he had gone to the house of Lodharam, while he went to faad/toanswer the call of nature, he saw that the appellantwas assaulting his brother Mohar Sai (since deceased) by spade on the road, the appellant made repeated assaults three times on his brother on which he asked the appellant as to why he has assaulted his brother, but the appellant did notanswer, thereafter, he asked the appellant whether his brother is alive or dead, even the appellant did not answer, thereafter he went to the spot where dead body of his brother was lying and then he went to the house of Sajjan and his maternal uncle whom he narrated theincident. He also, went to Biharilal (PW-2), thereafter, he went to the police stationand lodged FIR. In his cross-examination he has admitted that the distance between the place where he was standing and the place where the incident took place, was 200 mts.. He has further admitted that he shouted for help but no person from the house of Lodharam came out. He has also admitted that wife.pf the appellant was also present along with the appellant. He has admitted that relation of the appellant with the deceased wascordial. He has further admitted in para 6 of hiscross- examjnation that dead body was lying on the way and persons were movingon the road. 13.Biharilal (PW-2) - Sarpanch has admitted to the extent that Padmohan (PW-1) came to him and fold that Mohar Sai died on which he directed Padmohan to go to the police station and lodge report. This witness has -i-a •<.'•^::'. ^^,^- ... ''tes^ 'aiaB»;. v s '^ not supported case of the prosecution and the prosecution has declared him hostile. Other witnesses have also not supported case of the prosecution and the prosecution has declared them also hostile. 14.1n the present case, conviction of theappellant is substantially based on the evidence of Padmohan (PW-1) and the fact that after the incident Padmohan (PW-1) also went to the house of Biharilal (PW-2) and narrated the incident which Biharilal (PW-2) has admitted in part that Padmohan (PW-1) told'him that his brother Mohar Sai has been murdered then he directed Padmohan to go to the policestation and lodge report. In case of natural death, direction to go to the police station and lodge report was not natural, it appears that death of the deceased was unnatural and abnormal. - 15.Evidenceof Padmohan (PW-1) is well corroborated by the promptly lodged FIR Ex.P-1 and merg Ex.P-10. Padmohan(PW-l) is resident of same village and he is not totally chance witness. As per his evidence, on the fateful day he has visited the house of Lodharam. Definitely, in the present case, Lodharam and wife of the appellant were substantial witnesses for the prosecutionto prove the fact that on the fateful day Padmohan (PW-1) has visited the house of Lodharam and theappellant has caused injuries to the deceased. However, considering the fact that Wife of theappellant is not supposed to support case of the prosecution and depose against her husband, the prosecution has not committed any illegality by not examiningwife ofthe appellant. 16.As regards the question of non-examination of Lodharam, as per evidence of Padmohan (PW-1), on the fateful day he has visited the house of Lodharam and shouted for help but Lodharam or his relatives did not came out from the house. In these circumstances, non- examination of Lodharam is alsonot fatal to the prosecution. ^ 17.Normal/casual visit of a person without any cause to the house of any other person by villagers in the evening is not abnormal conduct ofthe witness. Evidence of Padmohan'(PW-1) did not disclosethat this witnessis having ahy enmity with the appellant or that with any ulterior motive he has falsely implicated the appellant. On the other hand, the appellant was having cordial relation with the deceased, even Padmohan (PW-1) has asked theappellant as to why he has assaulted his brother and that whether his brother is aliveor dead. This also supports the '^•'•.'..:^\!. natural conduct of Padmohan (PW-1 ). In these circumstances, evidence of solitary witness Padmohan (PW-1) corroborated by promptly lodged FIR Ex.P-1 and merg Ex.P-10 inspires confidence.it is trustworthy and safetorely. \ • 18.After appreciating the evidence availableon record, learned Sessions Judge has arrived at finding that theappellant hascaused homicidal death of the deceased. l9.As regards the question of motive, motive only aids in criminality and in caseofdirect evidence it loses its importance. Motive can be inferredon the basis of the weapon used, part ofthe body effected, natureof injury and othersimilar circumstance^; 20.1n the present case, the appellant has caused repeated injuries on the person ofthe deceased byspade and caused instantaneous deathofthe deceased which shows grave intention of the appellant of causing homicidal death ofthe deceased. 21.0n closescrutiny, we do not find any illegality in conviction & sentences imposedupon the appellant by the trial Court. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- . T.P. Sha-ma Judge Sd/- R.L. Jhanwar Judge :ll«.