^ HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.701 of 2005 Firat Ram Unraw S/o Makunda Unraw, aged 45 years, R/o Baradwar, P.S. Baradwar, District Janjgir-Champa (CG) Versus State of Chhattisgarh Through Police Station Baradwar, District Janjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) ofthe Criminal Procedure Code 1973} Present: Ms. Sudha Agrawal, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar. JJ JUDGMENT (5-12-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29-7-2005 passed by the Additional Sessions Judge, Sakti, in Sessions Trial No.79/2005, whereby and whereunder the Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Parasram in sharing common intention with other accused persons, convicted the appellant under Section 302 read with Section 34 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for three months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on 7-9-2004 at about 8 a.m. the appellant along with other five persons assaulted Parasram (since deceased) by axe & sticks. The appeilant was holding axe and they caused fatal injuries to Parasram including fracture of both hands. Parasram was serious. On same day at 7 p.m. his wife Sahartin Bai (^. c (PW-1) went to Police Station Baradwar and lodged FIR vide Ex.P-28. He was sent for medical examination to Primary Health Centre, Baradwar vide Ex.P-12. Dr. P. Singh (PW-8) examined him vide Ex.P-13 and found following injuries: - (1) Lacerated wound over left leg of 3" x 2" x 2". (2) Contusion over right hand along with fracture of ulna. (3) Contusion over left hand with swelling and fracture of ulna. Injury No.(1) was caused by sharp edged weapon. During treatment he died. Morgue was recorded vide Ex.P-16. 4. After summoning the witnesses vide Ex.P-3, inquest over the dead body of the deceased was prepared vide Ex.P-17. Bloodstained and plain soil were recovered from the spot vide Ex.P-18. Dead body of Parasram was sent for autopsy to Primary Health Centre, Baradwar vide Ex.P-10. Dr. P. Singh (PW-8) conducted autopsy vide Ex.P-11 and found following injuries: - (l)Contusion over parietal region with defused swelling and clotted blood. (2) Fracture of both hands. (3) Incised wound of 4" x 3" x 2" over left leg. (4)Contusion over right auxiliary region with swelling and fracture of 4th & 5th ribs. Mode of death was shock and death was homicidal in nature. 5. During course of investigation, the appellant was taken into custody, he made discloser statement ofaxe vide Ex.P-6 and same was recovered at his instance vide Ex.P-8. Other articles were also seized from other co- accused persons. 6. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Sakti who committed the case to the Court of Sessions, Bilaspur from where the Additional Sessions Judge received the case on transfer for trial. 7. In order to prove the guilt of the accused persons, the prosecution has examined as many as sixteen witnesses. Theaccused were examined under Section 313 of the CrPC in which they denied the circumstances ^ 1s%^^/ {>• appearing against them, pleaded innocence and false implication in the crime in question. 8. The appellant has examined himself as defence witnesses and has deposed that Parasram has sustained injury by falling from tractor and on account of enmity he has been falsely implicated in the crime in question. 9. After affording opportunity of hearing to the parties, the Additional Sessions Judge while acquitting other five accused persons, convicted and sentenced the appellant as aforementioned. 10. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 11. Learned counsel for the appellant vehemently argued that conviction is substantially based on evidence of Brihaspati Bai (PW-3) whose evidence does not inspire confidence and is not trustworthy. Even as per her evidence, the appellant has caused injury by axe and onty one injury found on leg has been caused by axe, which was not fatal. In absence of any fatal injury caused by the appellant, his conviction under Section 302 of the IPC is not sustainable under the law. Learned counsel further argued that the deceased died on the ground that medical aid has been provided to him just after the incident and delay in providing medical aid was cause of death of the deceased for which the appellant is not liable. 12.0n the other hand, learned State counsel opposed the appeal and submitted that evidence of Brihaspati Bai (PW-3) corroborated by evidence of other witnesses is not sufficient for drawing inference that in sharing common intention with other co-accused persons, the appellant has caused injury to the deceased and the trial Court has rightly convicted & sentenced the appellant under Section 302 read with Section34ofthelPC. 13.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 14.1n the present case, the appellant has notadmitted homicidal death of the deceased and by examining himself he has taken specific defence that the deceased fell down from the factor and sustained injury which s^a^^, % v~^% s .iy / ^ 4 was fatal for his life and he died as a result of such injury. As per his evidence, the deceased jumped from running tractor and sustained fatal injury. As per his evidence, Rasia Uraon was driving the tractor from where the deceased jumped and sustained injury. As per his evidence, Shatruhan took injured Parasram to the house of Parasram, Parasram was unconscious, thereafter, driver of the tractor and Shatruhan went away from the village. As per his evidence, the tractor was being driven by Rasia Uraon and Shatruhan has taken the injured from the place of incident up to the house of the injured, they would have been material witnesses, but the appellant/defence has not examined them. In absence of evidence of aforesaid persons and any suggestion to the prosecution witnesses, it is difficult to hold that Parasram fell down from the tractor and sustained injury. As per evidence of Dr. P. Singh (PW-8), he has examined injured Parasram vide Ex.P-13 and he has also conducted autopsy over the dead body of deceased Parasram vide Ex. P-11, and death was homicidal. This evidence is sufficient to prove the fact that Parasram has not died as a result of falling from tractor and died as a result of injury and that death of Parasram was homicidal in nature. 15.As regards complicity ofthe appellant in the crime in question, conviction of the appellant is substantially based on evidence of Brihaspati Bai (PW-3) who has deposed in her evidence that at the time of incident the appellant and his son Mannu were assaulting Parasram, the appellant was holding axe, he assaulted Parasram by axe and Mannu was holding stick, he assaulted Parasram by stick, and caused fracture of his hands, legs and also caused injury over head. This witness requested the appellant not to cause injury to Parasram, but still they assaulted Parasram. When she tried to provide water to injured Parasram, same was snatched by the appellant. As per her evidence, the appellant has played major role in causing injury to Parasram, along with his son. Defence has cross-examined this witness at length. In her detailed cross-examination, she has categorically deposed that the appellant has caused injury tothe deceased. The suggestion given by defence has been denied by her in para 12 of her evidence. Her evidence finds corroboration from FIR Ex.P-28. As per her evidence, the appellant has caused injury by axe along with other co-accused persons and the appellant was playing main role in causing such injury. Even, the ^., (.- rr appellant has snatched the glass by which she was trying to provide water to the deceased. 16.Evidence of Brihaspati Bai (PW-3) is sufficient for drawing inference that the appellant has caused homicidal death of the deceased along with other co-accused persons in sharing common intention. 17.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of weapon used, part of the body effected, nature of injury and other similar circumstances. 18. In the present case, medical aid has been provided to the deceased after considerable time, but injuries found over the body of the deceased were sufficient for causing death in the ordinary course of nature, though injury caused by axe was not sufficient for causing death in the ordinary course of nature. This is not the case in which the appellant has caused single injury and has left the place, but as per evidence of Brihaspati Bai (PW- 3), the appellant has played main role and he alongwith his son has caused injury to the deceased. Hands of the deceased were fractured and ribs were also fractured. This shows the merciless act of the appellant in causing injury to the deceased in sharing common intention. At the time of causing injury, the appellant was having dangerous weapon and was knowing the fact that by his act and the act of other persons, the deceased will not survive. 19-These circumstances are sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause death in sharing common intention. 20.After appreciating evidence available on record, the Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. Conviction of the appellant is based on clinching and credible evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence requiring any interference. 21. Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. Soma Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge