HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. Criminal apDeal No.818 of 2004 APPELLANT (InJail) RESPONDENT Mayaram @ Mayaram, Son of Ramayan Satnami, aged 19 years, residentof Village Madwa, P.S. Bilaigarh, District Raipur (Chhattisgarh) VERSUS State of Chhattisgarh, Through Station Incharge, P.S. Bilaigarh, District Raipur (Chhattisgarh). CRIMINAL APPEAL UNDER SECTION 374 OFTHE CRIMINAL PROCEDURE CODE Appearance: Shri H.B.Agrawal, SeniorAdvocatewith Ms. Pragya Singh, counsel for the appellant. Shri Arun Sao, G.A. for the State. Per T.P.Sharma. J. ORALJUDGMENT (Passedon 30/09/2010) The challenge in this appeal is to the judgment of conviction and order ofsentence dated 27.08.2004 passed in S.T.No. 127/2004 by the 1st Additional Sessions Judge, Baloda Bazaar whereby and whereunder after holdjng the appellant guilty for commission of culpable homicide amounting to murder of Rajkumar, the Couri: below convicted the appellant underSection 302ofthe I.P.C. and sentenced to imprisonment for lifewith fine of Rs.1000/-, in default to furi:her undergo R.l. for one year. 2. The cbnviction is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, father of the appellant had taken loan from the deceased Rajkumar who was teacher. On fateful day of 7-3- 2004 at about 4.30 p.m, Rajkumar came in front of house of the appellant for demanding loan amount which he had given to the father of the appellant, then the appellant went inside his house and came with axe caused. repeated injuries thereby causing instantaneous death of Rajkumar. Kumar Pankaj, son of the deceased, was informed by the witnesses present on the spotand he went to police station Bilaigarh and lodged F.I.R. Ex.P.1. Merg intimation was recorded vide Ex.P.2. Investigating Officer leftthe scene ofoccurrence and after summoning the witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex.P.4. Vide EX.P.15A dead body was sent for autopsy to Government Hospital, Bilaigarh where P.W.11 Dr. Narayan Singh conducted autopsy vide Ex.P.15 and found the following injuries: 1. Incised wound of 3 cm x 1 cm x skin deep on right parietal region. 2. Incised wound of 5 cm x 2 cm. x skin deep on left parietal region. Bone underlyingthe injury was found cutpartially. 3. Lunar size incised wound on right maxilla of 3 cm x 1 cm. 3 cm. Bone underlying the injury was found fracture. 4. Another incisedwound near the aforesaid injury of 2 cm.x 1 cm. x 3 cm. x skin deep. Bone underlying the injury was broken into pieces. 5. Incised wound of 2 cm. x 1 cm x1/2 cm. over the lower lip. Mode of death was shock and death was homicidal in nature. As per seizure memo Ex.P.5, written agreement written by the appellant was seized vide Ex.P.SA. Bloodstained and plain soils were seized vide Ex.P.7. One copy ofsale deed Ex.P.SAwas seized vide Ex.P.8. Accused was taken into custody. He made disclosure statement of axe vide Ex. P.9 and the same was recovered vide Ex.P.10. Bloodstained shirt of the accused was seized vide Ex.P.11. Patwari prepared spot map vide Ex.P.12. Sealed cloths of the deceased were seized vide Ex.P.13. Seizedarticles were sentto F.S.L. vide Ex.P.19. Presence of blood was found on the cloths of the appellant and axe used by the appellant was confirmed vide Ex.P.21. 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before .•^y^^ y^"'y ^.; 1^1 'a; iff&fc. '^B ^--....y the Court of J.M.F.C. who in turn committed the case to the learned Sessions Judge. The learned Additional Sessions Judge received the case on transfer for trial. 5. Inorder to prove the guilt of theappellant, the prosecution examined as many as 13 witnesses. The accused was examined under Section 313 of the Cr.P.C.in which he denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. 6. After affording an opportunity of hearing to the parties, the learned Additional Sessipns Judge convicted and sentenced the appellant as mentioned in paragraph 1 ofthisjudgment. 7. Shri H.B.Agrawal, learned Senior Counsel with Ms. Pragya Singh, counsel for the appellant and Shri Arun Sao, learned Govemment Advocate for the State are heard at length. Record of the Courts below and impugned Judgment is perused. 8. Shri hl.B.Agrawal, learned Senior Counsel with Ms. Pragya Singh, counsel for the appellant submitted that in the light of evidence of eye witnesses P.W.3 Anjani and P.W.4 Lilabai, he is not disputing the fact that the appellant caused injuries to the deceased. He further submitted that the case of the prosecution is admitted in its face value; even then the act ofthe appellant does nottravel beyond the Section 304 Part II ofthe I.P.C. As per the evidence of above eye witnesses, the deceased himself came in front of the house of the appellant and called him loudly and at that time theappellant was under intoxication. He provoked the appellant, and then on sudden provocation the appetlant caused injuries. 9. On the other hand, Shri Arun Sao, learned counsel for the State opposed the appeal and submitted that definitely there was some dispute between the appellant and the deceased at the time of incident but the deceased was not having any weapon. The appellant went inside his house and came with axe and caused repeated injuries, due to which, multiple fractures of injuries on the body of the deceased which shows the grave intention of the appellant in causing the death ofthe deceased. He further argued that after appreciation of evidence available on record, the E'"i1 4 learned Additional Sessions Judge has rightly convicted and sentenced the appellant as mentioned above. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution. In the presentcase, homicidal death as a result of fatal injyries found over the vital parts of body of the deceased Rajkumar has not been substantially disputed on behalf of the appellant, on the other hand also established by the evidence of Dr. Narayan Singh P.W.11 and his autopsy report Ex.P.15 and deathwas homicidal in nature. 11. Although the appeljant'has-not-disputed the fact of jnjuries found over the dead body caused by him but other wise also established by the evidence of P.W.3 Anjani and P.W.4 Lilabai, who have categorically deposed that appellant has caused injuries to Rajkumar by axe and caused his death. 12. As regards motive, in case of direct evidence motive loses its importance; even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar drcumstances. In the present case, as per evidence of P.W.1 Kumar Pankaj, son of deceased, Ramayan, father of appellant, bbrrowed ioan from his father and there was previous dispute between them. On the festival of C/7erc/?era the deceased again quarreled with the father of the appellant and caused the fracture. At the time of incident, the deceased had again gone to the houseof the appellant for demanding moneyafter consuming liquor as usual. As per evidence of P.W.3 Anj'ani, who was present on the spot, the deceasedcame in front of the house of the appellanfand called the appellant whereupon the appellant told the deceased that he was under the influence of liquor, therefore, the appellant will not talk to him but the deceased did not leave the place and was standing in front of the house of the appellant for about half an hour. As per paragraph 6 of her evidence, the deceased was abusing the appellant and was also threatening that he will kill butthe appellantwas avoiding the confrontation and lastly he assaulted the deceased. P.W.4 Lilabai also admitted in paragraph 7 of her cross-examination that when the deceased challenged that he will kill the appellant, then the appellant tried to avoid the confrontation but lastly he was provoked and caused injurytbthe deceased resulting jntodeathofdeceased. 13. The evidence of these witnesses shows that deceased had consumed liquor and he himself came in front of the house of the appellant to call the appellant. He was also abusing him and even he was threatening the appellant and the appellant was also trying to avoid the confrontation and further disputing the quarrel butlastly the deceased provoked the appellant whereupon the appellant came with axe and assaulted the deceased and caused repeated injury. In these circumstances, the act of appellant falls under Exception 1 of Section 300 ofthel.P.C. which reads as under: Explanation 1.—When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked bythe offender as an excuse for killing or doing harm to any person. Secondly.—That the provpcation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public sen/ant. T/?/rc//y.—'Thathe provocation is not given by anything done in the lawful exercise of the right of private defence. Exp/anafen.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 14. Definitely, in the present case, the deceased himself has provoked the appellant and thereafter the incident took place but the fact remains that the deceased was not having any weapon of offence and there was no danger for causing injury to the appellant but the appellanf went inside his house and took out axe and has caused repeated injury resulting into multiple fractures on the body of the deceased. Although, the deceased has provoked the appellant and the appellant after losing temper has caused injury to the deceased by axe, but at the timeof causing such ^ss^ .^^:m ' ^-<i fi:%^^ ^gll. J 8l.&'t ^ '^^^y j -^?'"%^-/' injury he was having no knowledge that as a result of such fatal injury the deceased may die. Therefore, definitely the act of the appellant is not punishable under Section 302 of the I.P.C.but consequently falls within theambit ofSection 304 Part 1 ofthe I.P.C. 15. Whjleconvicting the appellant, thelearned Additional Sessions Judge did not consider the circumstances inwhich the offence took place and injury has been caused by the appellant and thereby committed illegality. 16. For the foregoing reasons, the appeal is partly allowed. Conviction ofthe appellant under Section 302 of the I.P.C. is altered to Section 304 Part 1 of the I.P.C. and considering the repeated injuries resulting into multjple fracture caused by the appellant, he is sentenced toR.I. for 10 years with fine of Rs.1000/- and in default to further undergo R.l. for 6 months. I Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 5r