HIGH CQURT QF CHHATTISGARH AT BILASPUR DIVISION BENCH ‘CORAM: ‘ HON’BLE MR. T.P. SHARMA 8s HON’BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No. 598/2004 APPELLANT Pjarelal Ogre S/o Shant Ram, aged about 35 years, R/o village a? Navapara {Lapai), Chowky Baloda, Police Station Akaitara, District £ ' Janjgir Champa. VERSUS RESPéNDENT “ State of ChhattiSgarh through RS. Akaltara, District Janjgir Champa s (C.G.) ‘ p» CRIMINAL APPEAL UNDER SECTION 374 [2! OF THE CR.P.C. 1Dxeseua— V 1'11- Fur. ll njay A misura, RI! 1n nuvocate AA fer +1. me apoeuam. 11 + Mr. RR, Sinha, P.L. for the State/respondent. ORAL—JUDGEMENT (Passed on 23/03/201 1) The following iudgment of the Court was passed bV TnP. Shanna, J:— 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 24/6] 2004 passed by Second Additional Sessions Judge (F.T.C.), Janjgir, Sessions Division, Bilaspur (C.G.) in Sessions Trial No’ 109/2004 whereby and where under after holding the appellant. guilty for the commission of offence of culpable homicide amounting to murder of Gulabchand, convicted the i appellant under Section 302 of the Indian Penal Code and sentenced rigorous imprisonment for life and fme of Rs. x 100/—. Conviction ishipugxmd on the ground that Without any iota of evidence sufficient for conviction of the. appellant, Court below has convicted and sentenced the appellant as aforementioned and theieby committed an illegality. 3. V? As per case of the prosecution, on fateful night of 02/02/2004 at about 9:30 RM. on account of previous Zldispute, ‘present appellant caused repeated assault upon the vital part of the body of: Gulabchand (since deceased) resulting into his death. PW4 Anil Kumar (son of deceased Gulabchand), PW5 Neera Bai (Wife of deceased Gulabchand) 81. PW9 Fuleshwar Satnami were present on the spot and they have seen the incident. On second day, PW4 Anil Kumar went t0 the Police Station and lodged First Information Report Vide Ex. P-4, same was intimated .. 5“ to Magistrate Vide EX. P~22CMarg intimation was recorded Vide Ex. 13-3. Sealed cloths of the deceased Gulabchand x was sei%d Vide Ex. P-2. Investigating Oiiicer left for scene of occurrence and after summoning the witnesses Vide EX. P—6. Inquest over the dead body of deceased Gulabchand was prepared Vide EX. P—8. On the basis Marg intimation Ex. P—3, finally Marg intimation was recorded Vide Ex. P— 1’7 and on the basis of First Information Report Ex. P—4, finally First Information ». Report was lodged vide Ex. P— 18. Spot map was prepared vide EX. P—23. Dead body of Gulabchand was sent for autopsy. to Government Hospital, Baloda Vide Ex. P~ 10A. PW8 Dr. U.K. Tiwari cOnducted autopsy vide Ex. P-11 and fOLmd following injuries:— (i) incised wound o'ver upper side of back just ‘ below the neck of 5 x 1 3A x 5 c.m. (ii)‘ Underline bones were found cut. (iii) lncised wound of 2 V2 x 1 X 1 cm. just below the f1rst injury. (iv) Incised wound over left shoulder of 7 x 1 3/4 x 1 C.D1. (V) Incised wound over back side of the neck of 5 x 2X11/2c.m. (vi) Vertebra below neck was found cut. (Vii) Incised wound over right elbow of 4 X 3A x V2 C.Ill. (viii) Internal organs of neck was found damaged. Mode of death was shock and death was homicidal in nature. x 4. During course of investigation, appellant was taken into custody, he made discloser statement of axe Vide Ex. P-9, same was recovered at his instance vide Ex. P— 10. Shawl & Wrist Watch was found near the place of incident, same was identified by the witnesses vide Ex. P~ 1. Statements of the witnesses were recorded under Section 16 1 of the Code of CriminalProcedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was iiled before the Judicial Magistrate First Class, Janjgir who in turn committed the case to the Court of Sessions, Bilas‘pur from Where learned Second Additional Sessions Judge (F.T.C.), Janjgir, Sessions Division, Bilasnur (C.G.) has received the case on transfer for trial. 6. ‘ In-order to prove the gfiilt of the appellant prosecution iu‘examined as many as 21 witnesses. Appellant. was examined under Section 3 13 of the, Code Where he denied the 4 circumstances A appearing - against . him, . V mnocency V and false implication in crime in question is claimed. 7. L After affording an opportunity of hearing to the parties learned Second Additional Sessions Judge (F.T.C.), Janjgir, Sessions Division, Bilaspur (C.G.) has convicted and sentenced the appellant as aforementioned. 3. Mr‘ Ajay Mishra, Advocate for the appellant and Mr. RR. Sinha, RL. for the State/respondent are heard. Judgment impugned and record of the éourt below perused. 9. Learned counsel for the appellant vehemently argued that in the present case, conviction is substantially based on the evidence of PW4 Anil Kumar (son ’ of deceased Gulabchand) 83 PW5 Neera Bai (wife of deceased Gulabchand), interested and relative witnesses. Their evidence does not inspire confidence and trustworthy and their evidence is self-contradictory. There is some contradiction, omission and discrepancy in the statement s ‘\ L4 of aforesaid witnesses which is recorded under Section 161 of the Code. In absence of corroboration from independent sources evidence of aforesaid Witnesses are not safe to rely that too for conviction of the appellant. under Section 302 of the Indian Penal Code. On the other hand, learned Panel Lawyer for the “‘i‘espondent/State opposed the appeal and argued that evidence of PW4 Anil Kumar 8a PWS Neera Bai are sufficient. for drawing an inference that present appellant has caused homicidal death of Gulabchand. Both the Witnesses are relative Witnesses but their evidence cannot be discarded on the ground of their relation on the other hand, normally the relative of lost person to spare real culprit and to implicate falsely innocence. In case of evidence of relative witnesses their evidence only required minute scrutiny before accepting it. in order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the patties. In the present case, homicidal death as a result of fatal injury found over the body of deceased Gulabchand has not been substantially disputed on behalf of the appellant. on the other hand, otherwise also established by the evidence of PWS Dr. U.K. Tiwari and autopsy report Ex. P— 1 1 and death was homicidal in nature. A a 7 s ~\ As regard the complicity of the appellant in crime in question, conviction is substantially based on the evidence of PW4 Ami Kumar & PWS Neera Bai, son and Wife of deceased Gulabchand deflnitely, they are relative witnesses but their evidence cannot be discarded on the §round of their relation no»? law is settled on this point alu-tOIlly minute scrutiny of the evidence is required. As per evidence of PW4 Anil Kumar, son of deceased Qulabchand; some dispute arose between appellant and gulabchand at field thereafter appellant went to the house of Gulabchand, after some time he was informed by PW9 Fuleshwar Satnami that appellant. is assaulting his father Gulabchand then he rushed to the spot Where he saw' that appellant was assaulting his father Gulabchand by axe and caused injuries over back, neck and waist of Gulabchand and caused his death, after causing injuries, appellant rushed towards his house, his wrist. watch and shawl was fell down near the place of 3‘ incident; he chased the appellant up to his house, appellant went inside his house and closed the door from inside again, he came back to the spot where PW9 v Fuleshwar Satnami and his mother PWS Neera Bai were present. He narrated the incident to villagers and he lodged Marg intimation and First Information Report Exs. P—3 85 P—4. PWS Neera Bai, mother of PW4 Anil Kumar has X? \ substamially corroborated the evidence of PW4 Anil Kumar and has depésed that she has also seen the ilicident. Both thewitneeses have deposed that they were informed about initial part of the incident by PW9 Fuleshwar Satnami, which does not finds place in First Information Report and Mafg intimation Exs. P—4 82; P—3 andfstatement recorded under Section 161 of the Code of PW4 Anil Kiunar 86 PW5 Neera Bai vide Ex. P—7. PW9 Euleshwar Satnami has not. corroborated the evidence of aforesaid i witnesses, he was confronted by his previous , statement recorded under Section 161 of the Code vide Ex. P-13 and recorded under Section 164 of the Code by Magistrate vide Ex. P— 14. Although prosecution has not declared PW9 Fuleshwar Satnami hostile but his evidence in the light of Exs. P—13 8r. P— 14 reveals that he is ’ concealing the truth. As per evidence of PW4 Anil igumar 8t PW5 Neera Bai, Exs. P—3 8t P—4 i.e. Marg intimation 8:. First Information Report and their pervious statement Ex. P-7 , the fact remain that finally both the witnesses reached to the spot and have seen substantive part of the incident even PW4 Anil Kumar has chased the appellant up to his house. His evidence is well corroborated by First information Report and Marg intimation relating to the fact that PW4 Anil Kurnar has seen the substantive part of the incident, his n; t i4. evidence also fmds corroboration from the evidence of PWS Neera Bai his mother. Defence has cross-examined these witnesses at length but has not been able to illicit anything in their cross— examination to discredit their testimony to the extent that present appellant has 'not caused any injury to Galabcliand or has not rushed from the spot or PW4 Anil ‘3 Kumar has not chased him. These evidence are sufficient for; drawing an inference that appellant has caused « homicidal death of Gulabchand; , As regard the motive for commission of offence is concelned, motive is only aid in criminality and looses its importance. .ln case of direct evidence, even otherwise motive can be inferred on the basis of nature of injury, part of the body where injury was caused, weapon used and other like circumstances. In the present case, as per evidence of aforesaid Witnesses and initialcase of the prosecution, when Gulabchand went to the spot then incident took place and appellant has caused injuries to Gulabchand. This is not a case in which appellant caused injuries to Gulabchand in exercise of his right of private defence or under any circumstances or deceased Gulabchand was also having some weapon but in the present case, appellant has caused repeated assault by axe over the back, shoulder ‘v ‘ , l ‘ 1 and neck of deceased Gulabchand and has caused as ‘ many as 5 injuries including fracture, this shows his _ grave intention (if causing death of Gulabchand. After appreciating the evidence available on record leamed Second Additional Sessions Judge (ETC), Janjgir, Sessions Division, Bilaspur (C.G.) has rightly ;_ "convicted and sentenced the appellant as aforementioned. i On close-scrutiny of the evidence, we do not find any illegality A or “'o infirmity ~ 1n o the conv1ct10n n u and sentence ’ of the appellant. Consequently, criminal appeal is devoid of 1 merits, same is liable to be dismissed and is hereby dismissed. ‘ ‘i*¥ Mi r: ~ " r ”*7 Sd/— r Sdl- V ’ T. P. Sharma Age ‘ R-L-Jiganway‘ ge