CRIMINAL APPBAL N0. 568 OF 1995 v. State of Chhatti^arh

HIGH COURT OF CHHATTISGARH : BILASPUR CRIMINAL APPBAL N0. 568 OF 1995 Ramji Vs. State of Chhatti^arh JUDGMENT FOR CONSIDERATION ^-^ SdA . ^TuflgTe -6-2006 ^ Hoa'ble Shri Justice V.K. Shrh ^y c^^ \^y Sd/- V.K. Shrivatava Judge postfor 21-6-2006 Sd/- Fakhruddin Judge ^ HiGH COURT OF CHHATTISGARH: BILASPUR CORAM: Hoa'ble Shri Fakhruddia, J & Hon?bie Shri Vijay Kumar Shrivastava, J. CKJMINAL APPEAL No.568/1995 Ramji State of Chhattisjgarh \^^, PRBSENT; Sint. Ku'aa Jam, Counsel for the appellaat. Shri C.R. Sahu, Paael La\xyer for the respondent/State. JUDGMENT Per Hon?bie Fakhruddiu. J. The appeUan.t has prefen'ed this appeal agamst tiie judgment aad fmdiags dated 30/1/1995 passed by fhe Sessions Judge, Sarguja, ia Sessions Trial No, 348/93 whereby he has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo im.prisonm.ent for life. 2) Briefly stated Uie facts are tliat fhe fields of deceased Marihai' aiid those of accused Ramji are adjacent to each ofher aad some dispute was gomg on between fhem. about th.e fields, for which a Paiichayat was convened aad me acciised was asked not to initiate quarrel on that count aad if he has aiiy grievaiice he was advised to raake suitable application before the Tehsildar for appropriate proceediags. It is alleged tliat ou 03/08/1993 ia the eveniag at 4,30, Harihar we.nt to his agricultural fields; he found that accused was present there and was uiterruptiag the flow of water which was gomg to the fields of deceased Harihar. He stopped the complete flow of water towards fhat side, Hariliar ' ^ T protested and asked fhe accused to aUow him. to take fhe water but fhe acciised did not agree. Deceased Hariliar tded to inake the flow of water towards his fields but accused j51tIiUY abused him aad gave spade blows several tiaies, as a result of which Harihai' received fhe itijuries on the head aad ofher parts of the body, Harihar feU down there itsetf. Having seen fh.is iacident, it is stated fhat his brother Jagmohaa (PW/4), who was grazing tlie cattle at som.e distaace, got scared and ran away from. fhe scene of occurreiice aad went to his house aiid told to his father Shaai about Uie iacident, JagBiohan. aad Shaiii bofh caiae to tlie spot aad saw me iajuries on fhe person of fhe deceased Hanhar, PW/4-JagBiohaa went to me police station, Sitapur aiid lodged me iirst information report (Ex.P/8), The raerg (Ex.P/9) was recorded. The Paiichnaiaa (Ex.P/1) of the dead body of fhe deceased was prepared by fhe Investigating Officer. A reqiiisition (Ex.P/7) was sent to the FTunar^7 Healfh. Centre, SitapUr for postmorteni of fhe ^ dead body offhe deceased, Doctor C,R, Agrawal (PW/2) conducted fhe post niorteni on tlie dead body of the deceased and prepared the post Biorteni report (Ex.P/8), He found as raaiiy as six injuries on tlie dead body oftiie deceased which are as follows:

1. Incised wound on fhe forehead in fhe size of W x W x w 2, Incised wound over fhe scalp aiid teniporal region ui tlie sizeof'2'~x Fx r".

3. Incised wound over left parietal regiou ui fhe size of 2" x 1" x %s

4. Incised wouiid over fhe scalp ia Uie size of2?/a x W x V\

5. Incise.d wound over fhe scalp in occipital region io. the sizeof3"x Fx F.

6. Contusion over Uie scalp aiid occipital region in fhe size ofFxw". In fhe opiaion of Doctor, Uie cause of death was shock aad excessive haenion'hage aad deam was honiicidal ui natare. 3) The accused was an'ested on 5/8/93. Durmg the course of Uie uivestigation under Uie PoUce custody, accused/appellaiit gave memorao.dum (Ex.P/4) regardmg tlie place where he kept the Spade, the weapon of the offence, aad m pursuaace ofthe same, SHO recovered tlie same vide Ex.P/5. The spot map was prepared aiid fhe challan was filed. On tiie charge beiag framed, Uie accused appellant abjured the guUt aad contended that he has been falsely miplicated. 4) In ofience against accused/appellant, prosecution examined ten witaesses, namely, Sitamm (P.W.l), Dr. C.R. Agrawal (P.W.2), Rambachan (P.W.3), P.W. 4 Jagmohaci, P.W.5 Sughan, P.W.6 Kenda, P.W.7 Shani, P.W.8 Rauiesh, P.W.9 Gond Sai aad P.W.10 T-usu. The accused did not lead aay evidence. 5) The learned trial Judge on fhe basis of material adduced found Uie accused guilty and couvicted aad sentenced hiin as stated above. 6) Learned counsel for the appeUant contended tliat fhe evidence of P.W.4 Jagmohan is not trast worthy. It is further contended fhat he is aa mterested witness. On tibie otlier haad, leanied counsel for the State supported the judgmeut of fhe trial Court aad contended that the appeal has no substance, ^ -Jy" 4-\ >' 0 7) Perused the record. The matter rests on the eye witaess account of P,W. 4 Jagmohaa, who iii his stateinent has stated tliat he was graznig biiffalos, Raniji was mere ui his field and at fh.at tiaie deceased Hsj'Uiar cam.e there and asked fhe. accused Raiiiji why he has restraiaed fhe flow of water. Accused Ramji stated fhat he would restoraia, P.W.4 further stated tiiat Hanhai' started openiiig fhe water so fh.at fhe water may flow towards his field. Raoiji gave a blow to Harihar on his head by spade aad Haiib.ar feU down on me earfh. He had seen mis from 60-70 feet Rani]i gave four-five spade blows. P.W.4 also state.d fh.at because of fear he could not go on fhe exact place as the accused would beat him, He went to Uie house aiid told to his fath.er tliat Raaiji has done to death to Harihar. He came back alongwitli his fatlier to the place of occurrence and saw tiiat fhe blood was oozuig out from. the head of Harihar. In para-3 of his statement he stated that after seeiag fhe dead body of Hanliar on fhe spot, they started cryuig aad shoutiag, on fhis village person Jagra aad other persons came on fh.e spot and he told thein Uiat Rainji had beaten Hanhar by spade. Then he went to fhe poUce station aad lodged the report, Merg inUm.ation (Ex.P/9) was recorded aad he put his tliunib iBipression on fhat, The poUce had conie to Uie vfflage, prepared the paiichnaina and fhe post-morteni was conducted, PW-4 id his cross-examiriation has stated that Harih.ar was his real brother, He furtlier stated that Raiiiji was not ailowiD.g tlie water aad as such HarLh.ar had opened tlie water, He denied fh.at he has not seen the iacident. He further denied tliat as Harihar is his brother, fherefore, he is teUiDLg Ue, He also denied ' ' \.^-' me suggestion mat sin.ee tlie water was stopped, therefore, fhey were falsely iaipiLcatiiig fhe aceused. 8) We have gone fhroiigh the evidence aad especially fiie cross-exaiimiation of PW-4. There is nothiag brought on record to discredit his version. PW-5 Sug^ii is aaotiier witaess, who has stated fhat he kuew deceased Harihar aad also accused Ramji. He furfher stated fhat last year on fhe day of Rakshabandhao., Harihar was inurdered. He also stated fhat one Tusu was sick aiid he had gone to see him to his house. He also stated Uiat when he was ia tlie house of Tzisu, accused RaDDi]i caiiie aad deniaiided cycle froxn Tusu. He asked Ramji where he is goiag, upon fhis question fhe accused replied fhat sorae quarrel has taken place wim Hariliar and he is goiag to take mediciae and on his own he took away fhe cycle aiid ran away. Though this witaess has fe«8M tunied hostile, but he has stated that accused had stated that sonie quan'el had taken place with Harlhar, The evidence of pw-4 Jagmohaa is also corroborated by his fafher PW-7 Shaai who in his stateinent had stated tih.at Harihar was his son, JagBiohaa told hiin fhat accused Kaiaji had beaten Harihar by spade aiid heario.g fhis he along\vitli Jaginohan went to the spot aad found that his son Harihar is lyiag dead. He furfh.er stated fhat mere was uijury on the head of Harihar aad Uie blood was ooziag out, The evidence ofJagmohan. is furfher corroborated by the niedical evidence aad First Information Report lodged imm.ediately. The post-mortem report shows fhat fhe deceased had suffered as niao.y as six iajuries aad mey are on vital parts of Uie body, which go to show th.at tlie nitention aad fhe kaowledge was apparent. 9) So far as evidence of Hiterested wiuiess is concenied, Hon. Apex Court m tlie case of Heirbcms Kaur and ana. vs. State offfcryarea reported ia 200S AIR SCW 2074 held as under: WThere is no proposition in. law fhat relatlves are to be treated as untrtithful wituesses. Oii the contraiy, reason has to be shown when a plea of partiality is raised to show th.at flie witaesses had reason to shield actual culprit ajid falsely rmpUcate the accused. No evidence has bceii led ui tliis regai'd," In the instBiit case, we found fhat fhe evidence ofP.W.4 JagiEiohan is such on which the unpUcit reUaace can be placed, He is tlie natural witaess aad witnessed Uie iacident He is not tlie tiitored witaess. There is no iafirmity ia his evidence. 10) LasUy, leamed counsel for fhe appellaiit submits that tlie offence would not fall under Section 302 of Uie IPC as tlie iacident happeued ia a heat of passion and ia a spur of HioHient aad Uiere was no uitention to kill tlie deceased. ReUao.ee has been ['" placed by leamed counsel for the appellaat in Uie m.atter of Taraehayid and others Vs. The State ofMaharashfrci, reported in 2000 Cri. L.J. 2667. 11) Leanied State counsel opposed Uie contention of fhie learned coiinsel for Uie appellant and contended that it is a settled principle of law that nuiaber of uijuries is uTelevao.t aiid it is not always the determiauig factor io. ascertamiag fhe iiitentioii, He placed reliaace upon the decision ui the case of State of Raiasthan vs. Dhool Sinah, reported m AZR 5004 SC 1264 whereui the Apex Court held as under: It n is the nature of injujy, ii.....The nujnber of infuries is ifrelevant is not in ascertairung ihe ths determining factor always the pari of body imention. where it is caus^d, the weapon zised in causing such injury zuhich are the indicaiors of the fact ivhether the respondeni cnused the death of ihe deceased wifh an if'defdiofi of cctusifiy death or not In the instant case it is true that the respondent had dealt one single blow imth a szvord which is a sharp'edged weapon jneasuring about 3 ft in length on a vital part of the body, ruimely, the neck. This act of the respondent thoiigh solitary in nuTnber had ^evered ^iemocleidal Tfiu^cle, exierruzl fugular vein, intefnal jugular vein and common carotid instantaneous artery cjQmpletely leading to ahnost deaih. Any rec^sonable person imih any stretch of imagination can come io the conchision that stic^i injzffy on ^uch a viial pari of the body wilh a ^hurp-edged weapon would cause deaih. Such an injury not only exhibits the iniention of the attacker in cxzusing the death of the victim bui also ihe knowiedge of the atiacker as io the Ukely conseqiience of sach attack which couldbe none other than causing the death ofihe victim^^^^ 12) Havuig considered fhe facts aad circumstaiices oftlie case and niaterial on record aiid ia view of fhe evidence on record, which has been relied upon by the trial Court aiid discussed hereinabove, we are of the considered opiaion tliat flie tln.duig, conviction and sentence passed l-)y Uie trial Coiirt do not suffer froni aay iafimiity, which niay cail for aay io.terference by mis Court ui its appellate jiuisdiction. 13) y, the appeal fails and is dismissed. Sd/- Fakhruddin Judge Sd/- V.K. Shrivatava Judge R/H-