HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar^JJ. Criminal Appeal No.225of2006 Appellant (in jail) Vs. Respondent. Bajrang Uraw @ Aekka, s/o. Sita Ram @ Seetu aged about 25 years, occupation Labour, r/o. village - Urdana, P.S. City Kotwali, Raigarh Distt. Raigarh (CG). State of Chhattisgarh through S.O. Chakradhar Nagar, Tahsil and Distt. Raigarh (CG). (Criminal Appeal under Section 374(2)0fthe Cr.P.C.) Present: Mr. Vivek Shrivastava, counsel for the appellant. Ms. Madhu Nisha Singh, Panel Lawyer for the State. ORAL JUDGMENT (Deliveredon 11-7-2011) Per T.P. Sharma. J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29.12.2005 passed by learned Ist Additional Sessions Judge, Raigarh in Sessions Trial No. 94 of 2005, whereby and whereunder learned Sessions Judge, while acquitting co- accused, after holding the appellant guilty for causing culpable homicidal death amounting to murder of Parmeshwar, convicted the appellant under Sections 302 of the IPC and sentenced him to l^ .'\ c'A ' ^. l^ ^^^?^^ ^ 1 1 ^^^s-^i-^'^ undergo life imprisonment and to pay flne of Rs. 500/-, in default of payment of fine to undergo further Rl for two months. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, on fateful night of 10-7-2005 at about 10.30 pm unfortunate deceased Parameshwar was sleeping in verandah in his house. Sumitra Bai (PW/1), wife of the deceased was also sleeping beside the deceased in a separate bed. At that time, the appellant came with axe and assaulted twice over the neck of Parmeshwar, resulting in homicidal death and due to fear PW/1 Sumitra Bai kept lying on the bed and after leaving the place of incident by the appellant, Sumitra Bai (PW/1) went to the house of Nakul, Kotwar (PW/3) and narrated the incident to him, who went to Police Station and lodged first information report vide Ex.P/12. Merg intimation was recorded vide Ex.P/13, after summoning the witnesses vide Ex.P/14, inquest over the body of the deceased was prepared vide Ex.P/1, spot map was prepared vide Ex.P/2, blood stained soil and plain soil were seized vide Ex.P/3, blood stained clothes of the deceased were seized vide Ex.P/4, dead body of the deceased was sent for autopsy to Seth Kirodimal Hospital, Raigarh, vide Ex.P/15 where Doctor S. Lakra (PW/5) conducted postmortem vide Ex.P/15-A and found the following injuries; i) lacerated wound over throat, neck and muscle about 5 1/2" x 4"; ii) Anti cervical deep \' '?? «f .^'' margins not sharp and iii) wind pipe of left carotid artery was found cut. Cause of death was asphyxia and death was caused due to cut of windpipe and carotid artery caused by sharp edged weapon (axe). During the courseof investigation appellant was taken into custody and he made disclosure statement of axe vide Ex.P/5 and the same was recovered at his instance vide Ex.P/6, blood stained clothes of the appellant were recovered vide Ex.P/7, Kotwar prepared spot map vide Ex.P/10, sealed clothes of deceased were recovered vide Ex.P/18 and seized articles were sent for chemical examination to FSL, Raipurvide Ex.P/22. Statement of accused was recorded under Section 161 of the Cr.P.C. and after completing the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Raigarh, who in turn committed the case to the Court of Sessions Judge, Raigarh. Learned Ist Additional Sessions Judge, received the case on transfer, who framed charges under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. In order to establish the charge against the appellant the prosecution examined 5 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocenceand false implication. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid rhentioned. pS'^1 8. We have heard learned counsel for the partiesand perused the record of the trial court as also the impugned judgment 9. Mr. Vivek Shrivastava, learned counsel appearing for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of relative witness, Sumitra Bai (PW/1), wife of deceased which does not inspire confidence. As per her evidence, she hasseen the appellant causing fatal injuries over the neck of her husband, but she has not shouted for help or has not tried to save him which shows her conduct is unnatural. As per her evidence, appeltant has caused two axe blows over the neck of the deceased, but as per medical evidence, Doctor S. Lakra (PW/5), noticed single injury which shows clear inconsistency in medical evidence and ocular evidence. Further, the trial Court has totally ignored the fact that at the time of incident it was night and dim light was on, therefore, it was not possible for anyone to identify the assailant. 10. On the other hand, Ms. Madhu Nisha Singh, learned Penal Lawyer appearing on behalf of the State supported the impugned judgment and submits that evidence of PW/1 Sumitra Bai that she was present at the time of incident was natural and trustworthy. It was also natural that due to fear she did not make any alarm with a view to save herself apprehending her life to be in danger, therefore, she did not shout or try to save her husband. Her evidence is well corroborated by first information report (Ex/P12) and medical evidence (Ex.P/15-A), which shows that the injuries found over the neck of the deceased resulted homicidal death. The court below after considering all evidence and aspects of the case, has rightly convicted and sentenced the accused/appellant. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution and in the present case, homicidal death ofthe deceased as a result of fatal injuries found over the vital part of deceased Parameshwar has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor S. Lakra (PW/5) and autopsy report (Ex/P/15- A), death of deceased Parameshwar was homicidal in nature. 12. As regards complicity of the appellant in the crime in question is concerned, conviction of the appellant is based on evidence of Sumitra Bai (PW/1), wife the appellant. As per her evidence, at about 11.00 pm, her husband Parameshwar was sleeping in her house. She was also sleeping beside her husband in a separate bed. At about 11.00 p.m., appellant came withaxe and assaulted twice over the neck of her husband by axe and on account of fear she did not make any alarm. After causing injuries to the deceased appellant fled from the spot, thereafter she called the Kotwar and Sarpanch of the village and she narrated the incident to them. Thereafter, Kotwar and Sarpanch went to Police Station and lodged first information report. Defence has cross-examined this witness at length and in para 4 of her cross-examination she has specifically deposed that about the availability of light. She has categorically stated that present appellant caused injuries twice over the neck of her husband on the suspicion that her husband- c <SS-TC ^^, '^ ^SBrS'EB^ '', @ Parameshwar was having illicit relation with the mother of the appellant. Her husband was not having illicit relation with the mother of the appellant, but someother person Chhotu was having illicit relation with the mother of appellant. Nakul, Kotwar (PW/3) who lodgedinformation report (Ex.P/12), has deposed that Sumitra Bai (PW/1) has not told the name of assailant but the nameof assailant finds place in first information report (Ex.P/12) lodged by him. The evidence of PW/1-Sumitra Bai is well corroborated by first information report (Ex.P/12) and the same is sufficient for drawing inference that the present appellant has caused homicidal death of deceased Pamameshwar. 13. As regards question of motive is concerned, in case of direct evidence motive looses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 14. In the present case, as per evidence of Sumitra Bai (PW/1), present appellant was having motive for commission of murder of her husband-Parameshwar on the ground that as per his belief deceased was having illicit relation with the mother of the appellant which he could not tolerate. As regards intention is concerned, incident took place at night in the house of deceased. This is not the case in which the incident took place at a spur of moment or in a heat of passion. Appellant came with axe in the house of deceased where he was sleeping and the deceased was helpless and even he was not in a position to save himself, in that position .,ic»?aE;.».^ -,t;~s??. ^^^^ •• • a^y^ '"i--.. . J^ ^' ^.'Ss^' ^ '\ 7- the appellant caused repeated blows by axe over the neck of the deceased which finds place in autopsy report which reveals that injuries caused by sharp edged weapon were resulted in homicidal death which can only be possible as a result of repeated injuries on the same part of the body which shows clear intention of the appellant causing homicidal death of deceased. 15. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforesaid mentioned. 16. On a close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merjt is liable to be dismissed and is hereby dismissed. iRaju Sd/- i-V- Sharma Judge SdA [ R.N. Chandrakar Judge .'(.;..!...(,