HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apgeal No.20 of 2006 APPELLANT/: Bharat s/o Sadhuram Satnami aged 45 (Accused) years cultivat0r r/o Village Bhothidih P.S. (In Jail) Bilaigarh, Distt. Raipur (C.G.) Versus RESPONDENT: State of Chhattisgarh Through P.S. Bilaigarh Distt. Raipur (C.G.) {Appeal under Section 374 (2) of the Code of Criminal Procedure} ‘ “‘ Present: Mr. H.B. Agrawal, Senior Advocate with Mr. Pankaj Agrawal, Advocate for the appeiiant. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.N. Chandrakar, JJ JUDGMENT (30-1 1-201 1) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 8-12-2005 passed by the 1St Additional Sessions Judge, Baloda Bazaar, in Sessions Trial No.132/2005, whereby and whereunder the Additional Sessions Judge after holding'the appellant guilty for commission of culpable homicide amounting to murder of Anuj and for causing simple injury to Chhotelal, convicted the appellant under Sections 302 & 323 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for one month and to undergo imprisonment for six : months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on account of land dispute and dispute relating to-grazing of crop by a buffalo, the incident took place on 15-10— 2004 at about 9.30 a.m. in Village Bhothidih, Police Station Bilaigarh. ‘a %3 y ‘ ‘‘3 2 qK The appellant along with three other accused assaulted Anuj (since deceased) and caused fatal injuries. They also caused injury to Chhotelai (PW—2), father of Anuj. Chhoteial (PW—2) was taking his son Anuj to hospitai, but during course of travel Anuj died. Chhotelai (PW—2) went to the poiice station and lodged FIR vide Ex.P-5. Morgue was recorded vide Ex.P-6. 4. After summoning the witnesses vide Ex.P-7, inquest over the dead body of the deceased was prepared vide Ex.P—8. Dead body was sent for autopsy to the Block Medical Officer, Bilaigarh vide Ex.P—1A. Dr. B. Chaurasia (PW-1) conducted autopsy vide Ex.P-1 and found following injuries: - (1 ) Incised wound of 3 1/2 c.m. x 1/2 c.m. x 1/2 c.m. over frontal region. (2) Incised wound of 6 c.m. x 1/2 c.m. x 1/2 c.m. over middle of head. (3) Incised wound of 5 c.m. x 1 c.m. x 1/2 c.m. over left side of head. (4) Incised wound of4 c.m. x 1 c.m. X 1 c.m. over back side of head. (5) Incised wound of 3 1/2 c.m. x1 1/2 c.m. x 1 1/2 c.m. over side of neck, carotid artery was cut. (6) incised wound of 6 c.m. x1 c.m. x 2 c.m. over neck. (7) incised wound of 3 c.m. x 1 c.m. x 1 c.m. over right scapula region. (8) incised wound of 5 c.m. x 1/4 c.m. x 1A c.m. over'right shoulder. (9)lncised wound of 4 c.m. x 1A c.m. x 1/4 c.m. over right scapula region. (10) incised wound of 5 c.m. x 1/2 c.m. x 1A c.m. over right scapular region. (11) incised wound of 3 c.m. x 1A c.m. X 1A c.m. over right scapular region. (12) incised wound of 3 c.m. x1 c.m. over right thumb. (13) Fracture of internal bones of head and brain material came out. Mode of death was shock and death was homicidal in nature. 5. injured Chhoteial (PW-2) was also sent for medical examination. He was examined by Dr. B. Chaurasia (PW-1) vide Ex.P—4 and one abrasion of 1/4 c.m. x 1A c.m. over scalp was found on his person. 6. During course of investigation, appellant Bharat was taken into custody, he made discloser statement of spade vide Ex.P—9 and same Was recovered at his instance vide Ex.P-10. gg:‘ ‘E ‘K ‘a . Bloodstained and plain soil were recovered from the spot vide EXP-11. One stick stained with blood was seized from Manoj vide Ex.P-12. One sickle was seized from accused Pyar Bai vide EXP-13. Bloodstained clothes of accused Pyar Bai were seized vide Ex.P-15. Bloodstained clothes of Manoj were seized vide Ex.P-16. Patwari prepared spot map vide EXP—22. Seized articies were sent for chemical examination vide EXP—26. Presence of blood on spade seized from the appeliant and on clothes of the appellant was confirmed vide Ex.P-27. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazaar who committed the case to the Court of Sessions, Raipur from where the Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prosecution has examined as many as twelve witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. / 10.After affording opportunity of hearing to the parties, the Additional Sessions Judge while acquitting accused Pyar Bai, convicted and sentenced the appellant as aforementioned. 11.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 12.Mr. H.B. Agrawal, learned Senior Advocate appearing on behalf of the appellant, vehemently argued that conviction is based on solitary evidence of Dasram (PW-9) on whose evidence the prosecution has not relied, he has not supported the case of the prosecution and the _ prosecution has declared him hostile. As per his evidence, he saw single blow over the head of the deceased caused by the appellant, which was not fatal and sufficient for causing death in the ordinary course of nature. The prosecution has not collected other evidence to corroborate the evidence of Dasram (PW-9). Evidence of Dasram (PW- 9) is not sufficient for drawing dennite;conclusion that the appellant has caused homicidal death of Anuj with intent to cause his death. Mr. H.B. Agrawal further argued that although as per the FSL report, blood has , \‘ $‘ .. ... wwd s , », m’7‘ ‘ " been found on clothes and spade recovered from the appellant, but that itself is not sufficient for proving the tact that it was the blood group of the deceased. Mr. H.B. Agrawal also argued that the prosecution was under obligation to produce evidence sufficient for drawing definite conclusion that the appellant has committed homicidal death of deceased Anuj with intent to cause his death, but evidence adduced on behalf of the prosecution is not sufficient drawing such definite conclusion. Mr. H.B. Agrawal contended that even as per case of the prosecution there was no propriety for causing such injuries, the incident took place on trifle ground of grazing of crop by a buffalo and the incident took place all of a sudden, on sudden quarrel without any premeditation. In these circumstances, the appellant is entitled for acquittal. 13.0n the other hand, Mrs. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State/respondent, opposed the appeal and submitted that although Dasram (PW-9) has not supported the case of the prosecution, but his evidence is sufficient for drawing definite conclusion that the appellant has caused homicidal death of the deceased with intent to cause his death. 14.ln order to appreciate the arguments advanced on behalf of the partes, we have examined the evidence adduced on behalf of the prosecution. 15. In the present case, homicidal death of deceased Anuj as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellant. Likewise, simple injury found over the body of Chhotelal (PW-2) has also not been substantially disputed on behalf of the appellant. On the other hand, it is established by evidence of Dr. B. Chaurasia (PW-1), autopsy report Ex.P-1 and injury report Ex.P-4 that death of the deceased was homicidal in nature and that the injury found over the body of Chhotelal (PW-2) was simple. 16.As regards complicity of the appellant in the crime in question, conviction is substantially based on evidence of Dasram (PW-9) and FSL report Ex. P-27. 17.As per evidence of Dasram (PW-9), whom the prosecution has declared hostile, the appellant along with'other co-accused was present on the spot, on account of grazing of crop by a buffalo the incident took place and after some altercation, the appellant assaulted deceased Anuj by l l i spade over his head, thereafter, this witness went to the house of Anuj and informed his father. The prosecution has deciared him hostile. In his detailed cross-examination, he has not supported the case of the prosecution except the aforesaid fact that the appellant has caused injury to Anuj by spade over his head, though he has admitted the dispute relating to Iand. 18.lnjured witness Chhoteial (PW-2), father of deceased Anuj, has deposed in his evidence that while he was bringing his injured son Anuj from the fieid, he asked the appellant as to why he has caused injury to Anuj on which the appellant assaulted him also. In his detailed cross- examination, he has admitted the dispute relating to land between him and the appellant. 19.As per evidence and report of Dr. B. Chaurasia (PW—1), four incised wounds have been noticed on head of the deceased, grievous injury has also been found on neck of the deceased and carotid artery was found cut. 20.Dasram (PW-9) whom the prosecution has declared hostile has not completely supported the case of the prosecution. In his cross- examination, even he has denied that four accused persons have caused injuries. However, as per para 2 of his evidence, he has seen single blow caused by the appellant over head of the deceased by spade. He has also admitted presence of other accused persons on the spot. Total twelve incised wounds have been .noticed on the person of the deceased. However, as per evidence of Dasram (PW-9), he has seen only one injury caused by the appellant and thereafter, he went to the house of Anuj for informing to his father. Although Dasram (PW-9) has not supported the case of the prosecutiOn, but his evidence, especially para 2, reveals that he has seen first part of the incident. The. appellant was holding spade and has caused injury over head to Anuj. " Anuj died as a result of injuries caused on the spot where the appellant along with other accused were present. Fatal injuries have also been noticed by the doctor over head of the deceased. As per evidence of this witness and Chhotelal (PW—2), on the ground of grazing of crop by a buffalo, the incident took place. Presence of the appellant with spade on the field was not unnatural. Evidence of Dasram (PW-9) is sufficient for drawing inference that the appellant has caused injury to the deceased H: A 4“ \x4<;——-. 6 a and other accused persons were also present, they were holding sickle and stick. However, this witness has not seen any assault made by other co-accused persons. The deceased sustained fata! injuries on the spot and succumbed to the injuries sustained by him. He died during course of travel. This shows that the appellant has caused homicidal death may be in sharing common intention with other accused persons. 21.As regards motive behind the offence, as per case of the prosecution, the incident took place on the trifle ground of grazing of crop by a buffalo, altercation between both the parties took place, then both the parties provoked and the appellant has caused injury to the deceased. Considering number of injuries, persons alleged to have been present on the spot at the time of incident with weapons and the alleged act attributed to the appellant, it isdifficult to hold that the appellant has caused homicidal death of the deceased with intent to cause his death. Section 304 Part-ll of the IPC. 22.While acquitting the co—accused and convicting & sentencing the appellant under Section 302 of the IPC, the trial Court has not / considered the insumciency of evidence for conviction of the appellant under Section 302 of the IPC and, thereby committed illegality. 23.For the foregoing reasons, the appeal is partly allowed. Conviction and sentence imposed upon the appellant under Section 323 of the IPC are hereby maintained. Conviction of the appellant under Section 302 of the. IPC is altered to Section 304 Part—ll of the IPC and the appellant is hereby sentenced to imprisonment for custodial period. The appellant is in custody since 16-10—2004. He be releasedforthwith, if not required in The act attributed to the appellant does not travel beyond the scope of 7 t any other case. \\‘i:‘rk‘\g 3d]. Sdl- T- P- Sharma R.N.Chandrakar in soma I \Juclge Judge