HIGH COURT 3F CHHATTISQARR AT BILASPUR WW— DWISWN BENCH: 60mm: HON'BLE MR.T.P.SE-mRMA & HON’BLE MR.R.L.JHANWAR, JJ‘ -.._- _-_ n-..— (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODEOF CRIM§NAL PROCEDURE, 1973} ' ._._ Present:— Miss Sharmila Shinghai, counae! for the appeliant. Mr.Ashish Shukla, GovtAdvocate for the $taie. ORAL JUDGMENT (Passed on 30‘“ September, 2010) Per T.P.Sharma, J.:- 1. Cheilenge in this appeai is to the judgment ‘of convictiqn & order of sentence dated 23.3.2005 passed by the Sessions Judge, Jashpur, in 8essions Trial No.65/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilt for commission of offence of sulpable homicide of Fulmani Bai (since deceased) amounting to murder convicted under Section 302 of the i.P.C. and sentenced him toundergo imprisonment for life and to pay fine of Rs.200/—, in default of payment of fine to further undergo R.l. for one month. 2. .Qonviction is impugned on the ground that withoutthere being any iota of evidence, the triai Court has convicted & sentenced the appeliant as aforementioned and thereby committed iiiegaiity. .1; t. Criminai Apga! No.85? 0f 2005. V Appeuant Bhikhnu @ Bhikham, Sfo Kamalram‘ (ln Jail) Rawat, aged about 48 years; Occupagion-Agricuitwia, R/o ‘ \[Hlage— Mundadih, P.S. Farsabahar,“ Distt.Jashpur (Chhattisgarh) u \ ‘ Versus Respondent State of Chhattisgarh, Through $‘ation $ ‘ House Officer, .P.S. Farsabahar, ‘ Distt.Jashpur. 3. Case of the prosecuticn, in brief, is that on accaunt of previogs dispute on 28.4.2004 at about 3 pm. while deceaaed Fuimani Bai was Eousing amng with her rmothe'r-in-taw Putain Bai (PW-1) in her house, the appeilant came and assau!ted her on her temporal region by biunt part of axe and caused in}uries. Futmani Bai fell down and died. Putain Bai {PW-1) went to the Poiice Station and lodged the FIR. v§de Ex‘PH. Merg was recorded vide Ex.P/.15. lnvestigatihg ofhcer proceeded for the scene of occurrence and after summoning the witnessee véde Ex.P/2, ‘inquest over dead body of F,ulmani Sai was prepared vide Ex.P!3. Bloodstained and plain soil were recovered from the epot vide Ex.P/4. Deed body was sent for autopsy vide EXP/9. DrMaye Tigga (PW-4) ‘ conducted aatopsy vide Ex.Pi5 and found one lacerated wound on her left temporal bone of 9 cm. x 5 cm. x 4 cm. and fracture of bone beneath injury was also found. Cause of death was shock and death was; homicidal in nature. The appeliant himselfwent to the Police Station and produced axe which has'been seized vide Ex.Pl5. Spot rnap wae prepared by investigating officer vide EXP/1 O. Clothes of the deceased were seized vide EXPIM. Seized articles were sent for chemical examination vide Ex. P/1 2. t 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 Court of Chief Judicial Magistrate, Jashpur, who in turn committed the case to the Court of Sessions, Jashpur. . In order to prove the guiit of the accusediappeiiant, the prosecution has examined as many as six witnesses. $tatement of the accused/appellant was recorded under Section 313 of the Cr.P.C. where he denied the circumdances appearing against him and pleaded innocence and false implication in the crime in question. . Aiter providing opportunity of hearing to the parties learned Sessions Judge, Jashpur convicted & sentenced the appeiiant as aforementioned. .7 We have heard learned counsel for theparties, perused the judgment impugned and record of the trial Court. @ 8. Laarned counsel for the appeliant submits that in the iight of evidence cf Putain Bai (PW-1), Uiaso (PW-2) and Nandanram (PW.3), she is not disputing that the fact the present appeiiant has not caused injury to deceased Fuimani Bai. Learned counsel further submits that if the evidence of the eyewitnesses are considered, even then same is not sufficient for conviction of the appellant under Section 302 of the l P C and act of the appellant does not travel beyond the scope of Section 304 Part ll ofthel P C 9. On the other hand learned"State counsel supported the judgment impugned and submits that the appellant has caused fatai iniury on the head of the deceased resulting mto her Instantaneousiy death shows his grave intention of causing homicidal death of the deceased. . After appreciating the evidence available on record, the triai Court has rightty convicted & sentenced the appellant as aforementioned. 10.in order to appreciate the arguments advanced on behalf of the parties, we have examined the. evidence available on record. 11.in the present case, homicidal death of Fuimani Bat as a result of fatal injury found over her head has not been disputed on behaif of the appellant, on the other hand, also established by the evidence of Dr.Maya Tigga (PW-4) and autopsy report EXPIS which reveals that lacerated wound of § cm. x 5 cm. x 4 cm. was found on her temporal region and fracture of bone underlying injury was aiso found. Death was homicidai in nature, aithough the appellant has not disputed the fact that he has caused injuries to the deceased. Even othenivise, evidence of Putain Bai (PW-1), Ulaso (PW-2) and Nandanram (PW-3) are sufficient for drawing inferenw that the present appellant is the person who has caused injuries on temporal region of deceased Fuimani Bai. 12.As regards the question of motive, Putain Bai {PW-1) mother-in-law of thedeceased probably was not happy with the deceased who was daughter-in-iaw of his sister Putain Bai (PW-1) after death of son of his sister and that may be caused for causing such injury. From perusal of injury report, it reveais that biunt part of axe has not been used by the appellant; No incised wound was found. The appeilant has not caused repeated injuries and ader causing singie injury, he went away. lt shows that the appeliant has take'n proper precautian at the time of causing such injuries. The oniy fracture of bone underiying injury was found. No crush injury or crushing of bone underlying injury was found‘ 13.” the aforesaid fact is considered, then oniy inference would be possibie that the appeiiant has caused injury to the deceased but has not caused with intent to causing her deaih, but at that time he was having knowledge that by causing such injury, the deceased may die in these circum§ances, the act of the appeiiant does not travel beyond the scope at Section 304 Part—u ofthe mo. V 14.Whii%@nvicting the appeiiant under Section 3G2 cf the i.P.C., learned Sessions JLidge-has not considered the cause of incident; nature of injury, single injury and injury not caused by sharp part of axe and thereby committed illegality. 15.For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the i.P.C. is altered to Section 304 Part-” of the i.P.C. and sentence to undergo R.l. for seven years and fine of Rs.200l—, in default of payment of tine to further undergo R.l. for one 4 i month. i , m Sdl- Sdl— R.L.Jhanwar T.P.$harma i , Judge Judge