»;^^-" L c HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (In Jail) RESPONDENT: Cnminal Appeal No.825 of 1993 Jhapu, S/o Baiju Bhatra, aged about 30 years, R/o Mundagaon, Police Station Bhanpuri, Distt. Bastar. Versus The State of Chhattisgarh {Criminal appeal under Section 374 ofthe Code of Criminal Procedure, 1973} Present: Mr. R.K. Jain, counsel for the appellant. Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent. "^" Division Bench: - Hon'ble Mr. T.P. Sharma and Hpn'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (11-3-2010) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 2-4-1993 passed by the 3rd Additional Sessions Judge, Jagdalpur in Sessions Trial No.107/89 whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission * of culpable homicide amounting to murder of Sukta, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 18-10-88 at about 4 p.m. the appellant assaulted Sukta in the field at the time of demarcation of land with a heavy wooden club and caused his death. F.1.R. was lodged by Anant Ram (PW-1) vide Ex.P-1. Merg was BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 11:57:24 +0530 (^ ^. t_. recorded vide Ex. P-28. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-4, inquest over the dead body of Sukta was prepared vide Ex. P-3. Dead body of Sukta was sent for autopsy to Maharani Hospital, Jagdalpur vide Ex.P-22. Dr. J.S. Shendey (PW-7) conducted autopsy vide Ex.P-22 and found following injuries on the body of Sukta: - (1) Lacerated wound over left side of head in the size of 4 c.m. x 1 c.m. x bone deep. (2) Fracture of right tibia fibula and abrasion over the said fracture in thesizeof2 c.m. x 1 c.m. (3) Abrasion over left thigh in the size of 2 c.m. x 0.5 c.m. (4) Laceration of brain was found. Mode of death was shock and death was homicidal in nature. 4. Blood stained & plain soil were recovered from the spot vide Ex. P-6. Two pieces of hollow bamboo cover of dagger was seized from the spot vide Ex. P-5. One blood stained cloth was seized vide Ex. P-7. The appellant was taken into custody, he made discloser statement of badga, heavy wooden club vide Ex.P-8 and the same was recovered at the instance of the appellant vide Ex.P-9. Co-accused Sonu also made discloser statement of dagger vide Ex.P-10 and the same was recovered at the instance of co-accused Sonu vide Ex.P-11. One Ungi was seized from the appellant vide Ex. P-12. One lungi was also seized from co- accused Sonu vide Ex.P-13. Revenue documents Exs.P-15, P-16, P-17, P-30A, P-30B, P-30C, P-30D, P-30E, P-30F & P-30G were seized vide Ex.P-14. Sealed clothes of the deceased were seized vide Ex.P-29. Seized articles were sent for chemical examination vide Ex. P-33 and presence of blood on heady wooden club & lungi was confirmed vide Ex.P-34. kc^ L.- 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Court of Sessions, Jagdalpur, from where the 3 Additional Sessions Judge, Jagdalpur received the case on transfer fortrial. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as nine witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Sonu, convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Couri:. 9. Learned counsel for the appellant frankly admits that in the light of the evidenceof eyewitnesses Anant Ram (PW-1), Tadru Ram (PW-2), Sakru (PW-3) & Milap Das (PW-4), he is not disputing the fact that the appellant has not caused injury to Sukta with heavy wooden club, he is only disputing the fact that the appellant has not caused injury with intent to commit the culpable homicide amounting to murder of Sukta, therefore, if the evidence of the prosecution is admitted in its face value, same is not sufficient for conviction of the appellant under Section 302 of the I.P.C. and the role attributed to the appellant does not travel beyond thescope ofSection 304 Part-11 ofthe I.P.C. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the appellant herein has caused grievous and fatal injuries ^^^ ^^ / 1 ^ to the deceased and the Court below has rightly convicted & sentenced the appellant as aforementioned. 11.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12.1n the present case, homicidal death of the deceased as a result of ante- mortem injuries has not been substantially disputed on behalf of the appellant, otherwise also established by the evidence of Dr. J.S. Shendey (PW-7) and autopsy report Ex. P-22 which reveal that fracture of right tibia fibula was found, one injury was also found over brain including laceration of brain and death was homicidal in nature. 13.As regards complicity of the appellant in the crime in question, Anant Ram (PW-1), Tadru Ram (PW-2), Sakru (PW-3) & Milap Das (PW-4) have clearly deposed in their evidence that at the time of demarcation and taking possession of land, the appellant reached to the field, he was holding heavy wooden club and he assaulted Sukta over his head & leg. The fact relating to causing injuries by the appellant inspires confidence, it is trustworthy and safe to rely that the appellant has caused injuries to the deceased at the time of incident. 14.As regards motive behind the crime in question, in the pre^ent case, the appellant was having heavy wooden club and he assaulted over head & leg of the deceased, but no fracture was found over head, only fracture of leg (tibia fibula) was found. The evidence reveals that the incident took place at the time bf taking possession of land which shows that the incident took place on the ground of land dispute and the appellant has caused grievous injuries to the deceased on leg, not on any vital part of the body. This shows that the appellant has not caused injuries with intent to causing the death ofthe deceased, but the appellant was having SSESSS^SSS ^ ff fi :^¥3s6e. f/"*t \ •%y^/ •''y""''^ Soma knowledge that by his act the deceased may die. Therefore, the act of the appellant is not punishable under Section 302 of the I.P.C. but is punishable under Section 304 Part-11 of the I.P.C. While convicting the appellant, the trial Court has not considered this material aspect of the case and thereby committed illegality. 15. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 ofthe I.P.C. is altered to Section 304 Part-11 of the I.P.C. The appellant was in custody from 2-4-93 to at least till 18- 7-2001 i.e. for more than seven years. He is sentenced to imprisonment for the custodial period already undergone by him i.e. for more than seven years. The appellant is on bail. He need not surrender before the trialCourt. Sd/- T.P. Shamia Judge Sd/- R.L. Jhanwar Judge