VIKRAM NIRMALKAR Vs. STATE OF C.G.

JUDGEMENT

(1.) This appeal is directed against the impugned judgment of conviction and order of sentence dtd. 29/6/2013 passed by learned VII Additional Sessions Judge, Raipur, District Raipur (C.G.), in S.T. No.28/2011 whereby and whereunder the appellant has been held guilty for commission of offence under Sec. 302 IPC and sentenced to undergo rigorous life imprisonment along with fine of Rs.1,000.00 and in default of payment of fine, additional R.I. for six months.

(2.) The prosecution case is that on 9/10/2011 at 6.45, deceased Mayaram along with Tejram Nishad (PW/6) and Kalanath Nishad (PW/2) were talking to each other near Tejram Nirmalkar's cart, at the relevant time, appellant Vikram Nirmalkar came out of his house carrying rod in his hand and assaulted Mayaram on his head due to which he became unconscious, fell down on the ground and blood started oozing from his head. Thereafter, the incident was informed to Geeta Bai (PW/7) and Nemichand (PW/5), wife and son of the deceased respectively, who immediately came to the place of occurrence and saw Mayaram in injured condition in pool of blood. Thereafter, the injured, with the help of Tejram Nishad and Kalanath, was taken to Medishine Hospital, Raipur where he was admitted. On the same date at 7.30 PM, FIR in Ex.P/8 was registered on the information given by Tejram Nishad (PW/6) wherein, it was alleged that the appellant because of enmity, assaulted the deceased. On 18/10/2011 the deceased succumbed to his injuries during the course of treatment in Medishine Hospital, Raipur. On 18/10/2011, inquest over the body of deceased was conducted and body was sent for postmortem examination to Ambedkar Hospital, Raipur, which was conducted by Dr. R.K. Patel (PW/14) and prepared report in Ex.P/16 noticing three stitched wounds on right and left fronto parietal region and on forehead. On incision of scalp, 300 ml partial clotted blood was found with multiple fracture of right parieto temporal bone and according to him, the cause of death was cardio respiratory failure due to head injuries and its complication. The incident is said to have been witnessed by Seema Nirmalkar (PW/1), Kalanath Nishad (PW/2) and Tejram Nishad (PW/6). Upon conclusion of usual investigation, the prosecution filed charge sheet before the concerned jurisdictional Magistrate, who in turn, committed the case for trial to the Sessions Court. On the basis of material contained in the charge sheet, learned trial Court framed charge of murder against the appellant alleging that the appellant committed murder of Mayaram. On such allegation, the appellant was charge-sheeted for commission of offence under Sec. 302 of IPC. Appellant abjured guilt and was, therefore, put to trial. In order to prove its case, the prosecution examined as many as 16 witnesses. The appellant was also examined under Sec. 313 Cr.P.C. in respect of incriminating evidence and circumstances appearing against him in the evidence led by the prosecution. Appellant denied having committed the offence and pleaded innocence. One defence witness namely Sukhi Ram Kanwar (DW/1) was also examined to substantiate defence version. The learned trial Court, relying upon the prosecution evidence, held the appellant guilty of commission of offence and convicted as mentioned above in para 1 of this judgment.

(3.) Learned counsel for the appellant would submit that three eye witnesses to the incident, namely, Seema Nirmalkar (PW/1), Kalanath Nishad (PW/2) and Tejram Nishad (PW/6), being interested witnesses, are not reliable and they have falsely implicated the appellant in the crime in question. It has been further submitted that there is omission in the diary statement of PW/2 and PW/6 that the appellant had assaulted the deceased from behind. It has been also submitted that the opinion of autopsy surgeon is not definite. It is next submitted that the trial Court has erred in disbelieving the statement of defence witness Sukhiram Kanwar (DW/1) that rod was not brought by the appellant and he has not assaulted the deceased. Lastly, it has been submitted that the incident took place on 9/10/2011 and the deceased died on 18/10/2011 i.e. after 9 days of the incident and considering all the aforesaid facts, at the most, the appellant could only be convicted under Sec. 304 Part-II IPC and not under Sec. 302 IPC and the sentence may be reduced to the period already undergone by him. Learned counsel for the appellant also placed reliance on the decision in the case of Arjunan & anr. V. State reported in (1993) CCR 3176 and Yuvraj @ Guddu V. State of Chhattisgarh reported in 2005 CG.Cr.J.257.