HIGH COURT OF CHHATTISGARH AT BILA5PUR Division Bench:- COram: HON'BLE MR.T.P.SHARMA & HON’BLE MR.R.N.Chandrakar, JJ. i(CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF w 3 i CRIMINAL PROCEDURE, 1973) Mr.Bhupendra Singh, counsel for the appellant. Mr.J.A.Lohani, Panel Lawyer for the respondent/State. JUDGMENT (Passed on 9’“ August, 201 1) _ ~ Per T.P.Sharma, J.:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 7.4.2005 passed by the Sessions Judge, Surguia (Ambikapur) in Sessions Trial No.474l2004, whereby & whereunder Ieamed Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his brother Sharan Singh convicted him under Sections 302 of the I.P.C. and sentenced to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence sufficient for conviction, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of the prosecution, the present appellant brother of the deceased was residing in the same vicinity separate from his brother Sharan Singh. On.6.8.2004 at about 6.30 p.m. on account of previous v. dispute the appellant assaulted his brother Sharan Singh and caused his death. Another brother of the appellant Ram Awtar (PW—1) went to the " Criminal Appeal No.481 of 2005 Appeilant Goojar Singh S/o Ram Prasad Gond (in Jail) aged about 28‘ years R/o Village; Khodaro P.§.:Rajpur, Distt.—Surguja (C.G.) Versus Respondent a ‘f State of Chhattisgarh Police Station and fodged the F I R vide Ex P11 Merg was also recorded vude Ex P/11 Investigating officer proceeded for scene of - . occurrence and after summoning the Witnesses vrde Ex P/4 prepared Inquest over dead body of Sharan Srngh vrde Ex P15 Spot map was f r prepared by mvestrgatmg officer vrde Ex P12 Bloodstarned and piam soil were recovered from the spot Vlde Ex PI8 Dead body of the deceased e. was sent for autopsy to Mlnl Pnmary Health Centre Rewatpur vrde‘ f Ex Pl12 where Dr Sharad Grewal (PW-5) conducted autopsy vrde Ex PI9 w. and found metsed wound over right temporal region of 14 cm x 2 cm x 1 bone deep compnsmg cut fracture of panetal ’bone. Srarn matter/was w > also found cut. Cause of death was syncope and death was homicidal in nature. Patwari also prepared spot map vide EXP/20. During the course ' of investigation, the” appellant was taken into custody, he made disclosure statement of axe vide EXP/6 and same has been recovered at his instance vide Ex.Pf7. Sealed clothes of the deceased were seized vide EXP/13. Seized articles were sent for chemical examination vide EXP/16 and presence of blood over axe seized from the appellant was contirmed vide EXP/18. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation charge sheet was tiled in the Court of Judicial Magistrate First Class, Ambikapurp who in turn, committed the case to'the Court of Sessions, Surguja (Ambikapur). 5. ln' order to prove the guilty of the accused/appellant, the prosecution has examined as many as seven witnesses. Accused/appellant was examined under section 313 of the Cr.P.C.. in which he denied the circumstances appearing against him and claimed innocence and false implication in crime in question. 6. After affording opportunity of hearing to the parties, learned trial Court convicted and sentenced the appellant as aforementioned. L We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. Learned counsel rfor’the appellant vehemently argued that conviction is based on the evidence of solitary evidence Janki Bai (PW-2). As per her evidence, the appellant hasscaused three injuries by axe over the head r «a of Sharan Singh, but as per medical evidence of Dr.Sharad Grewai (PW—5), only one injury has been noticed shows that she has ’7 exaggerated her evidence. Even as per evidence of Janki Bai (PW-2), firstly the appellant and his wife were quarreling intheir house, then after hearing the sound the deceased went to the house of the appellant i e his brothers house for Intervenlng the quarrel where the appellant and r the deceased quarreied With each other and during the course of quarrel the appellant caused teeth bite Injury and then he assaulted over the head of the deceased by axe from back side and caused aforesaid injury, deceased died on the spot. In her cross-examination she has specifcaily admitted the factum of quarrel between the appellant and the deceased She has also admitted that on account of angry the appellant has caused injury to her husband which reveals that the appellant has not caused homicidal death of the deceased with Intent to cause his death, therefore, the act of the appellant does not travel beyond the scope of Section 304 Part-ll of the l.P.Ct On the other hand, Ieamed Panel Lawyer for the State opposed the appeal and argued that the appellant has caused dangerous injury with full force which shows that he has caused homicidal death of the deceased with intent to cause death of the deceased. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellant as aforementioned. . In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. . ln the present case, homicidal death as a result of fatal injury found over the head of deceased Sharan Singh has not been substantially disputed on behalf of the appellant, even otherwise, it is established by the evidence of Dr.Sharad Grewal (PW-5) and autopsy report EXP/9. Death of the deceased was homicidal in nature. . As regards the complicity of the appellant in crime in question, conviction is substantially based on the evidence of Janki Bai (PW-2), wife of the deceased, who was present at the time of incident. As pa her evidence, initially the appellant and his wife were quarrellng in their house, her husband went to the house of the appellant, who was brother of the deceased for intervening quarrel where the appellant and the deceased “switgmr w quarreled with each other the deceased received teeth bite injury ’g caused by the appellant Thls Witness has also reached to the spot > , While her husband was showung his teeth blte Injury. the appellant 7 caused the aforesaid Inlury over the head of the deceased from back snde. He again caused repeated Injury and her husband died on the spot, but medical evidence does not support the evidence of this witness to the extent of repeated assault As per Ex P/Q single Iniury over the head/temporal region has been noticed by the doctor Janki Bar (PW-9) _; a has specifically admitted in para 3 of her cross-examination that thew -« appellankand the deceased were quarreling and during the course of >- quarrel on accounL of angry the appellant has caused ingury m ms brother. Evidence ofrJanki Bai (PW-2) is sufficient for drawing inference 1 a» that the present appellant has caused homicidal death of his brother. 13. As regards the question of intention, it can be inferred on the basis of weapon used, part of the body effected, ambit of force & appliedand nature of injury 14. ln the present case. the appellant has caused single blow by axe, but depth of the injury, fracture of bone of skull, rapture ofbone and rapture of brain reveal that the appellant has used force for causing such injury and he was having definite knowledge that by his act the deceased may die, but circumstances attributed to the accused/appellant reveals that . he has not caused homicidal death with intent to cause death of the deceased, therefore, the act of the appellant squarely falls within the ambit ‘of Section 304 Part-l of the l.P.C. 15. While convicting and sentencing the appellant, the ttial Court has not considered the aforesaid aSpect of the case and thereby committed g illegality. For the foregoing reasons, the appeal is partly allpwed. Convictlpn of the appellant under Section 302 of the l.P.C. is hereby attered to Section 304 Part—l of the l.P.C. and considering the nature of injury and number of injury, the appellant is hereby sentenced to undergo’Rl for eight *4“ ~ . l years and fine of Rs 3000/- in default of payment of tine to further undergo R I for six months Sdl- W’gd’r’T, R.N.Chandrakar 3' T.1>.Sharma it ’ i Judge l ’ Judge "