sv l^i(.^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBENCH: Coram: HON'BLE MR.T.P.SHMIMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Appellant (In Jail) Respondent Crhninal Apped No. 576 of 2005 Rafique Khan S/o Hanif Khan, aged 30 years, resident of Pathaipara, P.S. Basantpur, Distrct Rajnandgaon. Versus The State of Chhattlsgarh, ttirough the District Magistrate Rajnandgaon (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIM1NAL PROCEDURE) Present:- Mr. S.C. Verma, counset forthe appeltant. Mr.J.A. Lohani, Panel Lawyer for the State. ORALJUDQMENT (Passedon 28th July, 2011) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of convtetion & order of sentence dated 07.05.2D05 passed by the Sessions Judge, Rajnandgaon, in Sessions Trial No.157/2004, vrtiereby & whereunder leamed Sessfons Judge after holding theappetlant guilty for oomnnisston of offence ofculpable homicide ofAbdul Farid Qureshi (since deceased) amounting to murder convicted under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.1000/-, in defeult of payment of fine to further undergo adcfitional R.l. for one year. 2. Convtetion is impugned on the ground that vwthout there being any tota of evidence, the trial Court has convicted & sentenced the appetlant as aforementioned and thereby commltted Blegallty. 3. As per case of the prosecution.on fateful night (rf 27.05.2004 at about 8.55 p.m., appellant was abusing in front of house of unfortunate deceased Abdul Farib Qureshi, appeltarrt was objected by deceased then appellant threertened him that he would klll him and caused injury by knife over his abctomen. At that time other person chased the appellant, caught him. The injured was taken to the hospital. Iqbal (PW/14) went to the police station and lodged F.1.R. vMe Ex.P/14. Ir^ured vras examinal by Dr Rajesh Sharma (RW1) \Me Ex.P/1 and found stab injury just above the umbilicus midllne, omentum coming out from the injury. Depth was determinable by exploration. Injury was raused tsy sharp ajged weapon. During course offr^ifmentdeceased Abdul Farid Qureshi died. Merg intimated vkie Ex.P/2. Merg recorded vide Ex.P/5. After summoning the witn^ses vide Ex.P/6, hiquest over the dead body of deceased was prepared vide Ex.P/7. Dead body was sent for autopsy to Distrlct Hospital, Rajnandgaon vide Ex.PMA. Dr. B.C. Jain (PW/2) conducted autopsy vide Ex.P/4 and found following injurtes: (1) Incised wound of 2 cm above the umbilteus on left side af 4x1x1 cm. Blood was oozing from wound. (2) Incised wound over middle finger of 1x % x % cm. Right proximal phalanx palever aspect of lcmx %cm x% cm. (3) Peritoneum disrupted. There is perforation in stomach on anterior wall of 3cm and on posterior wail of 2 cm. (4) There is four perforation are seen on anterior in ilium f»rtof2cm. Mode of death was shock. 4. During course of investigation, appellant was taken into custody. He made disclosure statement of knife vide Ex.P/9, same was recovered at his instance vide Ex.P/10. Deceased ctoth^ was seized vtde Ex.P/1 1. 5. Statements of the witnesses were recorded under Sectton 161 of the Code of Criminal Procedure (for short the 'Code') and after comptetton of investigation, charge sheet was filed before the Court of Chtef Judcial Magistrate, Rajnandgaon, who in turn committed the case to the Court of Sessions, Rajnandgaon, which Sessions Judge received the csse on transfer for trial. 6. In order to prove the guilt of the aceused/appellant, prosecution has examined as many as 16 witnesses. Statement ofthe accused/appetlant was recorded under Section 313 of the Code where he denied the circumstances appearing against him arwl pleaded innocence gmd felse implication in the crime in question. 7. After providing opportunity of hearhg to tte partles, leamed Se^ons Judge, Rajnandgaon convioted & senteneed Bie a^ellant as aforementioned. 8. Shri S.C. Verma, leamed counsel fw the appellantand Shri J.A. Lohani, learned Panel Lawyer for the State are heard. Perused the judgment impugned and record ofthe trisd Court. 9. Leamed counsel for the appelfant vehCTiently a-gued ttet evidenc®of alleged eye witnesses Abdul Wahab Qur^hi (RA//4), Ku. Jarim (PW/9) daughter of deceased, Hasina Begam (PVW10) wife of deceased do not inspire confldence and trustworthy. He ftjrther argued that tl'rey have not seen the incident. After hearing the sound of deceased they came out from the house and found injury on the body of the daceased, thereafier, they took deceased to the hospital where he died, but only on the ground that the appellant used to abuse the person in the vicinity and habitual of consuming liquor, they have falsety implicated the appellant in the crime in question. He also argued that even ottierwlse there is no intension or motive to cause such injury. Incident took place on a spur of moment and sudden provocation and caused only singte knife blow thoi^h the appetlant was havlng sufficient opportunity to rause repeatedir^ury, therefwe, the act of the appeltant does not travel beyond the scope of Section 304 Part-11 of ttie I.P.C. Preseit appellant is in custocty for more than seven years, which fssufficient sentence for the offence punlshabte under Sectfon 304 Part-11 of the I.P.C. 10.0n the other hand, leamed Panel Lawyer for the State oppo^d the appeal and argued that present appellant has caused fatal blow on vitat part of body of deceased and caused instantaneous death i.e. wlthin 45 minutes. The injury sustained, weapon used and affected parte of the body are sufficient for drawing infa'ence that presert appetlant has caused homlcidal death of deceased with intent to eause his death. Learned Panel Lawyer further argued that evidence of eye witnesses Abdul Wahab Qureshi (PW/4), Ku. Jarina (PW/9) ctaughter ofdeceased, Hasina Begam (PW/10) wife of cteceased are also suflfcient for drawing inference that present appellant has caused homlcidal death of deceased. 4 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. In the present case, homicidal deatti of Abdul Farid Qureshi as a result of fatal injuries found over the body of the deceased has not toen substantially disputed on behalf ofthe appellant, even otherwlse a\so it is established bythe evidence of Dr. Rajesh Sharma (PW/1) who examined the deceased and medical report Ex.P/1 and Dr. B.C. Jain (PW/2) and autopsy report Ex.P/4 that the death was homfeidd in nature. 13.As regard to complicity of the appellant fn the crmie in questlon is concemed, conviction of the appellant is substantially based on evidenc^ of Abdul Wahab Qureshi (PW/4), Ku. Jarina (PW/9) daughter of deceased, Hasina Begarri (PW/10) wlfe of deceased. As per evidence of Abdul Wahab Qureshi (PW/4), appellant was residing in front of house of deceased, he was abusing the deceased thereafter he dragged deceased from his house and assaulted by knlfe over his abdomen. At that time, wife and daughter of the deceased were present in the house and after receiving injury deceased shouted "Bachao-Bachao" then they came from the house, other pereon including Abdul Wdiab Qureshi (PW/4) also reached to the spot, chased & caught the appeltant and took him to the police station. He further deposed that he took injured to the hospitat where he died during the course of freatment. Evidance of Abdul Wahab Qureshi (PW/4), Ku. Jarina (PW/9) daughter of deceased, Hasina Begam (PW/10) wife of deceased are wefl corroborated by each other. Defence has cross-exammed Vhese wttnesses at length snd in their cross examination they have supported their statement recwcted under Section 161 oftheCode and their statemaits find cwroboration from injury report Ex.P/1 and by the statement of Ku. Jarlra (PW/9) recorded under Section 161 of the Code to the exlent of B to B in which she has deposed in detail that present appellant has caused angle toiife blow to his father. There is contradicti(Mi in their Court atatement and statement recorded under Section 161 of the Code but evidence of aforesaid witnesses is corroborated by each other and by promptly lodged F.I.R. Ex.P/14. Presence of wife and daughter in house of deceased has not been denied at the time 8.55 p.m. n'esenceof Abdal tA (R/V/4), neighbor of the deceased near the place of incident Is also natural. Evidence of aforesaid witnesses inspires eonfldence and tru^worthy to the extent ttiat appeltant was abusing in frcnt of house of deceased Abdul Farid Qureshi, when he objectal, the appellant caused single knife blow over his abdomen resulting into his instantaneous death i.e. within 45 minutes afterthe incident. 14.As regards the question of motive, in case of direGtevidence motive losses its importance, even otherwise, motive only aids in Griminatity and can be inferred on the basis of nature of injury, kind ofwea|»nused, part of the body effected and other slmflar cireumstanc^. 15.1n the present case, as per evidence of Hasina Begam (R/V/10), vffe of cteceased, there were good relations between present appellant and deceased but at the tlme of incklent appellant was abusing in front of house ofthe deceased and when he objected, incident took place, whieh showa " a' :: t toqk place on a spyr of moment anddue to sudden provecation without premeditation anct appeltant caused sueh injury by knife over his abdomen. There is four perforaticms seen on anterior in ilium part, which show®that appellant was having definite Iffiowledge that by his act deceased may die. Defenee has ateo exainined these witnesses including Dr. Rajesh Sharma (PW/1) and after considering the cross-examination Court below has discarded statanent of Sheikh Babuddin (DW/1). We do not flnd the aforesaid finding ofthe triat Court to be discriminating to the appellant on the basis of evidence of eye witnesses. iS.Evidence adduced on behatf of prosecution is not sufficient for dramng inference that present appellant has <aused hOTnicidal death of deceased Abdul Farid Qureshi with intent to cause his death but the act attributed to the appellant does not travel beyond the scope of Sectton 304Part-lofthel.P.C. 17.Whlle convicting and sentenclng the appeltant umler Sectton 302 ofthe IPC, the Court below has not considered ftie aforesaid most material aspect ofthe case and thereby committed illegatity. 18.For the foregoing reasons, the appeal Is partly allowect Convidion ofthe appeflant under Section 302 ofthe I.P.C. is altered to S«;t)on304 Part-1 ^ of the I.P.C. Considering the nature and gravity of ir^uries, appellant te sentenced to undergo R.l. for nine yeare and fineof Rs.1000/-, in ctefault of payment of flne further to undergo addition R.I. for one year. Appeltant is in custody since 28.05.2004, he is entitled to set offof (he aforesaid period. Sd/- T.P. Sharma Judge Sd/- R.N. OIANDRAKAR. Judge <*UU^flE.