\ HIGH COURTOF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. Criminal Appeal No. 1036^1 2001 APPELLANT/ APPLICANT (in jaill RESPONDENT Bansingh, S/o Sunder, aged about 35 years, R/o village - Deurgaon, P.S. Parpa, District Bastar(C.G.) VERSUS State of Chhattisgarh, P.S. Frazerpur, District Bastar (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE Appearance: . Shri Alok Dewangan, counsel for the appellant. Shri Ashish Shukla, G.A, for the State. JUDGMENT (Passedon 02.12.2010) Per T.P.SHARMA, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 14.09.2001 passed by the 4 Additional Sessions Judge, Jagdalpur (Bastar) in S.T.No. 18/2000 whereby and whereunder after hoiding the appellant guilty for the commission of homicidal death amounting to murder of his brother Sukalu, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced him to life imprisonment with fine of Rs.500/- and in default to undergo further R.l. for 4 months. 2. Conviction is impugned on the ground that without iota of evidence, the Court below convicted 'and sentenced the appellant and thereby committed illegality. 3. As per case of the prosecution, on fateful day of 23.10.99 at about 1.00 p.m. the deceased Sukalu was present near the river, the appellant assaulted him by Kadri (knife) and caused repeated injury, which resulted p~" "<i&. lr.:'i4A. ' -s' i^,.^->-AJ .6 "^-sy i3KV»' into death of Sukalu. Merg was lodged by P.W.1 Sonu vide Ex.P.2 and F.1.R. was also lodged by him vide Ex.P.1. Investigating Officer left the sceneof occurrence and after summoning the witnesses, inquest over the dead body was prepared vide Ex.P.8. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur where P.W.7 Dr. K.K.Nag conducted autopsy and found the following injuries: 1. Stabbed wound in the right side of chest of 2" x 2". Blood was coming out from the injury. 2. Stabbed wound over right side of chest between send and third rib. 3. Right lung was found punctured and its size 1" x %" and its upper approximately 2 - 2 % liter blood was found in thoracic cavity. Death was homicidal in nature. Spot map was prepared vide Ex.P.7. Bloodstained soil and plain were recovered from the spot along with bloodstained cloths of the deceased vide Ex.P.9. Accused was taken into custody and made disclosure statement of Kadri (knife) vide Ex.P.10 and the same was recovered at the instance of the appellant Vide Ex.P.11. Bloodstained cloths of the accused was seized vide Ex.P.12 and sealed cloths of the deceased was seized vide Ex.P.13. Seized articles were sent for chemical examination vide Ex.P.18. 4. Statements of witnesses were recorded under Section 131 of the Cr.P.C. After completion of investigation, charge sheet has been filed before the Chief Judicial Magistrate, Jagdalpurwho in turn committed the case to the Court of Sessions, Jagdalpur. The learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 9 witnesses. Accused was examined under Section 313 ofthe Cr.P.C. in which the accused denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. The accused has also examined defence witness Dhaniram as D.W.1 who has deposed that on account of enmity, the appellant has been falsely implicated in crime in question. 1 :..-':i,-:: .3 6. After affording opportunity to the parties and hearing them, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. Shri Alok Dewangan and Shri Ashish Shukla, learned counsel for the parties are heard atlength. Perused the impugned judgment and records of the Court below. 8. Learned counsel for the appellant Shri Alok Dewangan vehemently argued that in the present case, conviction is substantially based on the evidence of P.W.2 Bhagwati, P.W. 3 Samvati, P.W.4 Jayanti Bai and P.W.5 Smt. Masan Bai but their evidence does not inspire confidence, trustworthy and is not safe to rely. They are interested witnesses. Counsel further submitted that there was no motive for causing homicidal death of the deceased, therefore, even if the entire prosecution story is admitted in its face value, then the act of the appellant falls under Section 304 Part II ofthe I.P.C. 9. On the other hand, Shri Ashish Shukla, learned Government Advocate for the State opposed the arguments and argued that the conviction of the appellant is based on direct evidence of eye witnesses P.W. 3 Samvati, P.W.4 Jayanti Bai and P.W.5 Smt. Masan Bai who have categorically deposed that present appellant has caused injury on the deceased over his chest by Kadh (knife) and caused his instantaneous death. 10. In order to prove the arguments advanced by the parties, we have examined the evidence adduced by the prosecution. In the present case, homicidal death, as a result of fatal injuries found over the body of Sukalu has not been substantially disputed on behalf of the appellant, on the other hand also established by the evidence of P.W.7 Dr. K.K.Nag and death was homicidal in nature. 11. As regards the complicity of appellant in crime in question, as per evidence of defence witness D.W.1 Dhaniram on account of previous enmity, the prosecution witnesses have falsely implicated the appellant. The evidence of prosecution witnesses on previous enmity cannot be discarded. Enmity is a double edged weapon may have false implication ^' Ll and may have a reason for causing such incident. Therefore, the Court is required to scrutinize the evidence minutely. As per evidence of P.W.2 Bhagwati, P.W. 3 Samvati, P.W.4 Jayanti Bai and P.W.5 Smt. Masan Bai, they were going towards field, at the time, the appellant assaulted Sukalu with knife and fled from the spot. They have seen the incident. The defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony relating to fact that they have not seen the incident because they are relative witnesses of the deceased but their evidence on the ground of relationship cannot be discarded. Even otherwise, relatives are the last persons reluctant to spare the culprit and implicate the innocent falsely. Evidence of P.W.2 Bhagwati, P.W. 3 Samvati, P.W.4 Jayanti Bai and P.W.5 Smt. Masan Bai inspires confidence and trustworthy and is sufficient for the drawing an inference that the appellant has caused injury and caused the instantaneous death of Sukalu. 12. As regards the question of motive, in case of direct evidence, motive loses its importance, even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case, two fatal injuries were found over the chest of the deceased. Lungs were found fractured which shows the force used for causing such injury by dangerous weapon i.e. knife, which is sufficient for drawing inference that the appellant has caused homicidal death of Sukalu with intent to cause his death. 13. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 14. On close scrutiny of the evidence on record, we do not find any illegality in the conviction of the appellant. 15. Consequently, the appeal,. being devoid of merit and substance, is liable to be and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge i"11! ^ •^- »."'\u