^S^l; ^ 't^ HIGH COUKT OF CMHAmSQ^HjBU.^eUR -ffll UVISION BENCH: HON'BLESHta T.P.StUWMAAND HON'BLE SHRI R.L^yttWWW. JJ. Appellant (in jail) «ESPONDENT GriminalADDealNo.361(rfa»M Uday Ram, S/o Sukhunm 1-laBia, s^ad % years. resktent of Parasghat, Poltee Statton Mohla, District feijnandgaon VERSUS StateofC.G. through P.S. - Mohla, Dlst. Ftejnandgaon (C.G.) CriminalADpeal uncterSection 372 WoftheGrimlnsy ProcedunCocte Appeaiance: Smt. Anand Kumar Gupta, counsd for the appeltant. ShriJamilAkhtarLohani.P.L.fortheState. ORALORDER (Passedon 27.662011) Per T.P-Shanna. J. Challenge in this appeal is to the juc^mwrt ofconvtettenand order of sentencedatedOS'-Maroh, 2006 passed m S.T.No.114/2006 by ttw Sesaons Judge.Rajnandgaon whereby and vAiereunder after hokling the appellant guiUy forcommission ofculpabte homtekle amounKngto munter of Dinesh, the Court below convteted the appellant under Seetien 3(S ofttie l.P.C.and sentenced him to imprisonmentfor life with fine of Rs.100<y" and in default to (urther undergo rigorous impristmment for 3 years. 2. The convietion is impugned on the ground that wittMHrt any feta of evidence, the Court betow convicted and sentenced the appeltants as aforementtoried and thereby committed illegality. 3. As per the case of prosecutton, on latdkil day of 13.7^2005 atabout 4.0) p.m., the unfbrtunate deceased hamely Dinesh was presenti nearths Sa/a tree along with witness P.W.1 Santuram, P.W.2 Sadhuram and P.W5 Raman. The appellant came on his bicycte carrying axe and assauttsd Dinesh by axe over his head and Dinesh fell down and aftersom®time he .l-cAnSF-.-,.. '^' |!'IS»tPSW|j ^: :"%y •^•-^•St.^ / !i,;.l II! died. All the above witnesses rushed towards villag®and informed to athsr villagers. Somebody informed the poltee station Mohta retating to the aforesakl incident, the same was recorded in Rojnamchasanah vide Ex.P.IIC. The appellant himself vistted pottee statfon Rtohla and intormed the aferesaid incklent and the same vras also recorded vide Ex.P.12 "©'. PotiGeauthorityleftforplaceofincidentforenquJrywheTeP.W.I Santuram ktdged Dehati Nafehi vide Ex.P.1 and Dehati Merg was racorded vkle Ex.P.2. Spot map was prepared vkle Ex.P-3. After sumrnortig the ^ wttn^ses vfcle Ex.P.4, inquest over the dead body was prepwed \We Ex.P.5. Btoodstained and plain soils were recovered vktoEx.P.8. The appellant was kept in poltee st^tion for safe custody. Dead body was sent for autopsy to CommunUy Health Center, Mohla vlde Ex.P.lfiA. P.W.10 Dr. Hemant Kumar Arya eonducted autopsy vkle Ex.P.16 and found the foltowing injuries: 1. Incised wound of3"x 1" x ff" over right parwtat bone w»h fracture of right parietal bone, Brafn matter came outlrom the aforesald injury. Mode of death was shock and death was homfcidal in ndture. Appellant made disclosure statement of axe and cterths vide Ex.P.7, the same were recovered at the instance ofthe appetont vide Ex.P.6. Seated ctoths pf the deceased wereseizedvkleEx.P.10. AB»llantwas arrasted vide Ex.P.21. Seated artteles were sent for chemjcal examination and presence of blood over axe was conflrmed vkle Ex.P.25. Statements of witnesses were recorded under Sectkm 161 of the Coda of Criminal Procedure, 1973 (forshort the Code"). 4. After comptetion of investigation, chargs sheet was fited belwe the Court of Judtoial Magistrate Riret Glass, Ambagarh ChowM, whe fn tum committedthecasetotheGourtofSessions. 5. InordertoappreciatetheguiltofthBappellant.proseCTitfonwcamhied as many.as 11 witnesses. AGcused/appetlant was atee examtned under Sectton313 of the Code wherein he denied all theclroumrfarices an'ewing against hhi and innocence and fatee implicatfon is claimed. 1 6. After affording opportunity of hearing to the partles, the tMimed Sessions Judge, Rajnandgabh Gonvicted and sentenced the appallart as aforementfoned in paragraph 1 ofthis judgment. ! : ,»:;l!B.s. 'i I :i".*yl 1 7/ 7. We have heard Shri Anand Kumar Gupta and Shri Jamil Aldttw Lohani, counset for the parties at tength and have perused the .Judgtnent impugned including recordofthe'Courtbetow. 8. Leamedcounselfor the aniellaHt VBhsmeritlyargued that eQnvietta of the appellant is substantially based on the eviclence of alleged eye wttnesses P.W.1 Sanluram, P.W.2 SadhurEBn and P.W.3 Raman, bwt ttiess wttnesses have not deposedanythingthattheyhaveseenttelncktont. They have only deposed that the appellapt came on h'e bfcyete carrying axe and thereafter they have heard sounds of deceased.then theysaw the deceased having injuryover the head byaxeand the appetlantfleeingfromsptit. Th^ evidence is not sufftetent for convtetton and thattoo in the abswce of other corroboraUve piece of evidence. 9. On the other Hand, teamed counsel for the State opposed and submitted thattheevidenceof P.W.1 Santuram, P.W.2 Sadhuram andP.W.3 Raman coupled with the evktence of Ex.P.12, whfeh is Ro((iamct»asanah,te suffteient for drawing definite conclusion that the appellant has caireed (atal injuryresulting into death ofdecesBed. THeevKlenGe adduced on behalfof ths prosecut'ion te suflfcient for drawing inference that homiddal daath of deceased Dinesh with intent to cause his death was committed by the appellant. After appreciating the evidence availabte on record, the Gairt below has rghlly ctfnvteted and sentenced the appettant. 10. In order to appreciate the Ewgumenta advancad on behaff of the parties, we have examined the ewdenced adduead on behaff of ttie prosecutton. In the present case, homteidatdeath as a result <rf frtal injury found over the head of the deceased Dlnesh has not baensut»tantialty disputed on behatf of the appsllant but on the other hand ateo establMied from the medfcal evklenceof P.W.10 Dr. Hemant Kumar Aiya an(t autepsy vkle Ex.P.16 and death was homicidal in nature. 11. As regards complicity of the appellant in crime hi questton, Gonvkstion ofthe appellant is substantially based on theevidenes ofP.W.1 Santuram, P.W.2 Sadhuram and P.W.3 Raman, alleged eye wltness^, who tiava xteposed that they were doing to<^ibrush at the time of inektent and the present appetlant came witli:axe. Thereafter, theyhead the?ounds of assauftand then saw the incident and rushal t6 the spot. P.W.I ISantHtaro c^ "^ <1 informed about the Incident to temslngh and other pereons. Thereaftw, poltee came to the viltage, in whose before, Dahatl Nalishl Ex.P.t wre lodged and also me^ vide Ex.P.2. Defence haseross-examined thestwitness^ at tength. Evidence of these wttnesses ctearly reveated tliat Dinesh was present among them, they saw the appeflmt coming on Ris bicycte and hoMtng axe. Thereafter, they saw the sounds of assaut on the deceased and fbund injury near the headof Dinesh. Only other person i.e. the appellant was present near Onesh, tben the aforesaid wftnesses lushed ttie spot. As per evidence of P.W.7 DeVdatt Tiwari, Head ConstaM®of Poliee Statton Mohla, Ex.P.11 was recorded on the basis of information received by tetephonem whfch nam^ of accMsed has not been menttonad. Thereafter, at 18.50 hours (6.50 p.m.), the appeBant himsrtfreached to the potice statien and infonned the incfclent. 12. The aforesaid facts were even wellcon-oborated by the evktence ®f P.W.11 Ghandra Sekhar Dhruv, Station Inehaiga ofPolfce Statton Mctita. He has specUfcally admitted In his evktence at para 13 of his »oss- examination that there was no mentton 1n Ex.P.12 C about the axe being kept in safety but there was mentton that the appellant be kept in custody in polfcestatton vkle Ex.P.12 C. The evklence of P.W.7 Devdatt Tiwari and P.W.11 Chandra Sekhar Dhruv is sufficient to establish facts thsrt the appellant reached the police station at 6.50 p.m. and informed the poltee about the fact that deceased Dinesh has been kilted by sae. Tlifs part of the statement js notinculcated, therefore, admissible in evktonceand ftirther corroborated by the evklenee of P.W.1 to P.W.3 namely Santuram, Sadhuram and Raman and the svktence of aforesaid witne^es is •uflfeient for drawing definite conctaslon that onty the appellant has caused fatal Injury over the head ofthe deceased resulting tnto htedeath. PoBee also reached to the spot and the appellant was holding axe. There was no other reason forthe appellant to causedealh ofDinesh bytraveNng his heuse tothe place of iricktent. These circumsfamces ctearly estabfehed that ttie appetont caused homfcidal death with intentto cause his death. 13. After appreciating the evidence awilabte on (ecord, the Sessipns Judge has rightly convicted and sentenced tha appeUant aforementtoned. as •uuntitiawtKniiS! 1 ....^^ffinssii; -.-.A, 05 14. On ctose scrutiny of the evktence and materiatavaitabte on record, we do not find any iltegatity and infirmity in the impigned cQnvfction and sentence ofthe appeltant. 15. Consequently, the appeal, being devohl of merN: and substance, te liable to be and is hereby dismissed. Sd/- R.L. Jhanwar Judge Sd/- T.p.Sharma