HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram:Hon'ble Shri T.P. Sharma & HonLble^hri^.N.Chandrakar.JJ. Aepejla^nt Respondent Criminal ApDeal No.935of^005 Vs. Ram Sufal Pandey, aged about 35 years, son of Radheshyam Pandey, resident of Arjun Nagar, Camp No.1, Bhilai, Dist. Durg (CG). State of Chhattisgarh (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Y.C. Sharma, counsel forthe appellant. Mr. D.K. Gwalre, Govt. Advocate forthe State. JUDGMENT (Deliveredon2-12-2011) PerT.P. Sharma^J. 1. Challenge in this appeal is to the judgmenf of conviction and order of sentence dated 3-12-2005 passed by Sessions Judge, Durg, in Sessions Trial No.50/2005, whereby and whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of Suresh, convicted him under Sections 302 of the IPC and sentenced him to undergo Ife.e-.aJI .""'f"^- i KCIJ imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for two months. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, on fateful day of 2-2-2005 between 7.30 pm and 8.00 pm, at Arjun Nagar Chowk, District Durg, deceased Suresh was quarrelling and abusing the persons residing in the ward, especially in front of the house of PW/3 Dinesh Kumar Shukla. When deceased was creating nuisance, on the advice of his father father PW/1 Samaruram Nirmalkar, he left the place after some time. Thereafter, appellant along with his friends were searching deceased Suresh. Appellant was holding betel axe. He along with his friends took Suresh towards his house and thereafter dead body of Suresh was found lying in the lane. PW/2 Prakash Kumar informed about the incident to his father Samaruram Nlrmalkar (PW/1), who went to Police Station and lodged first information report vide Ex.P/1 within 1 hour and ten minutes of the incident. Investigating Officer Shiv Kumar Yadav (PW/7) left for scene of occurrence and after summoning the vide Ex.P/2, inquest over the dead body was prepared vide Ex,P/3, blood stained soil and plain soil were seized from the spot vide Ex.P/4, spot map was prepared vide Ex.P/5 and dead body was sent for autopsy to Government Hospital, Durg, vide Ex.P/7, where Dr. P. Balkishore (PW/4) conducted autopsy vide Ex.P/8 and found the following injuries: p -^••'<!'!1" i) ii) iii) IV) V) vi) vii) viii) Lacerated wound over the back of neck at level of 4th & 5 vertical size of 5x2 bone deep (3 % cm) transverse right edge sharp & left edge lacerated cut. Incised wound near first injury 5x2x muscle deep; Lacerated wound of 2x1/2x3cm just left to first injury; Incised wound over back of left ear of 8x5cm x bone deep; mastoid bone was found cut; Abrasion of 6cm over left shoulder skin deep; and abrasion of 5 cm over left shoulder; Incised wound 3x1/2 cm x skin deep at supra scapular part; Abrasion over elbow 2x2 cm skin deep; Contusion over left scapular and shoulder region 2x2 cm. Doctor opined that mode of death was shock. During course of investigation, appellant was taken into custody and he made a disclosure statement of betel axe vide Ex.P/9 and same was seized at his instance vide Ex.P/11. Clothes of the appellant were seized vide Ex.P/10. Sealed clothes of deceased were seized vide Ex.P/13. Seized articles were sent for chemical examination to FSL Raipur vide Ex.P/14 and presence of blood over betel axe and clothes of the appellant were confirmed vide Ex.P/15. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Durg, who in turn committed the case to the Court of Sessions Judge, Durg, who framed charge under Sections 302 of the IPC against the appellant. 7. In order to prove the guilt of the appellant, prosecution examined as many as ten witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is 'claimed. Appellant examined DW/1 Bhikam Chand, DW/2 Sheela Bai, DW/3 N.B.Ramana Murty, who have deposed that deceased was having criminal antecedents. He used to attempt outrage modesty of women and used to abuse in the ward. DW/4 Manharanlal Yadav has also deposed that number of cases were registered against the deceased. 8. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 10. Mr. Y.C. Sharma, learned counsel for the appellant vehemently argued that conviction is based on the evidence of PW/2 Prakash Kumar, brother of deceased, but as per his evidence, his statemenf under Section 161 ofthe Code has not been recorded by Police and even his name does not find place in the charge-sheet, therefore, there was no occasion or opportunity to defence for cross-examining this witness on the basis of statement recorded a^St. .i-!si'.,ig.:ibs:t ...^l^ ^\ ' I.!!;"''f"i"t!! •^, 1»1 4s 8 SM«|l /',/ 'ii^ :S..<, •>;>l...,ti'"; '^ 11. under Section 161 of the Code. Learned counsel further submits that even as per evidence of PW/2 Prakash Kumar, he has seen the appellant and his friends taking the deceased towards the house of appellant but he has not seen the incident. As per his evidence two persons were with the deceased and prosecution has not made other person as co-accused, therefore, liability for commission of murder cannot be fastened on the appellant. He further submits that even as per case of prosecution deceased was having criminal antecedents and number of criminal cases were registered against him. Even on the date of incident also deceased was creating nuisance and abusing the persons residing in the ward, therefore, they were annoyed with deceased, who assaulted the appellant and other persons. On sudden provocation the incident took place and except injuries No.1, 2 and 3, other injuries found over the body of deceased were simple in nature and same may be caused by falling on the ground. Therefore, if the act attributed to the appellant is considered in its face value, then tlie act attributed to the appellant does not travel beyond the scope of Section 304 Part II ofthe IPC. On the other hand, Mr. D.K. Gwalre, learned Govt. Advocate on behalf of the State opposed the appeal and submitted th^ the evidence adduced on behalf of the prosecution reveals that deceased was having some criminal antecedents, but the aforesaid fact is not sufficient for commission of murder of any person. Injuries found over the body of deceased are sufficient for drawing inference that appellant has committed homicidal death of '^ deceased with intent to cause his death. Evidence of Prakash Kumar (PW/2) is sufficient for drawing definite conclusion that his name finds place in FIR, his statement has been recorded under Section 161 of the Code by the Sub Inspector D.P. Mishra (PW/10). After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 13. In the present case, as per defence of DW/1 Bhikam chand, DW/2 Sheela Bai, DW/3 N.B.Ramana Murty and DW/4 Manharanlal Yadav, deceased was having criminal antecedents and number of cases were registered against the deceased who used to create nuisance in the Ward. 14. In the present case, homicidal death of deceased Suresh has not been disputed on behalf of the appellanf. Even otherwise, it is also established by the evidence of Dr. P. Balkishore (PW/4) and autopsy report vide Ex.P/8 that death of deceased was homicidal in nature. 15. As regards the complicity of appellant in crime in question, conviction is based on the evidence of PW/2 Prakash Kumar, brother of deceased. As per his evidence, on 2-2-2005 at evening he was informed by members of the ward and PW/3 Dinesh Kumar Shukla that deceased was quarrelling with the persons residing in II "'-. (^ the vicinity, then he went to place of incident where deceased was abusing. He rushed to his house and again reached to the spot along with his father. His father advised the deceased, then deceased proceeded towards his house, but he did not reach to his house, again they went towards the place of incident and saw the appellant holding betel axe and his friend holding stick taking the deceased towards the house of appellant and after some time, dead body of deceased was found lying in the lane. In his cross examination he has deposed that Police has not recorded his statement and for the firsf time he has deposed the aforesaid facts in court. He has denied the suggestion relating to criminal antecedents of the deceased. As per evidence of PW/3 Dinesh Kumar Shukla, just before the incident, deceased was creating nuisance in the ward. PW/10 Sub Inspector D.P. Mishra has specifically deposed that he recorded the statement of PW/2 Prakash Kumar. He has denied the suggestion in paras 7 & 8 that he has not recorded the statement of PW/2 Prakash Kumar. '-lis statement under Section 161 of the Code finds place on record and his name finds place in first information report and after filing charge-sheet, the Court has examined this witness after summoning him. These circumstances are sufficient to prove that PW/2 Prakash Kumar is not stranger to the incident but brother of deceased. He was not a chance witness. Only on the ground that he has deposed that he has not stated before Police, his evidence cannot be discarded. His evidence finds support from the evidence of PW/1 Samaruram Nirmalkar, father of this witness and -Svii^sss.t ^. deceased. Evidence of PW/2 Prakash Kumar is sufficient for (jrawing inference that deceased was seen alive last time in the company of appellant who was holding betel axe. Fatal injuries found over the dead body of deceased have been caused by sharp edged weapon. The evidence of the aforesaid witnesses are sufficient to prove that appellant has caused homicidal death of deceased. 16. As regards question of motive is concerned, in case of direct evidence motive looses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 17. In the present case, evidence of defence witnesses, evidence of PW/2 Prakash Kumar and PW/3 Dinesh Kumar Shukla are sufficient for drawing inference that deceased was having criminal antecedents and number of cases were registered against him. He was creating nuisance and abusing in the ward. Even just before the incident he was creating nuisance and provocating the persons residing in the vicinity. It appears that on sudden provocation on the ground of public nuisance, present appellant has caused homicidal death of deceased, otherwise, there is no propriety for causing injuries to the deceased and three fatal injuries were found over neck and head and other injuries were simple in nature. Considering the nature of injuries and circumstances, it can be inferred that the incident took place on a sudden provocation and appellant has not caused homicidal death of deceased with intent i- 5- to cause his death but at the time of causing such injuries, appellant was having definite knowledge that with his act the deceased may die. Thus, the act attributed to the appellant squarely falls within the ambit of Section 304 Part II of the IPC. The court below, while convicting and sentencing the appellant, has not considered the aforesaid circumstances and thereby committed illegality. 18. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 302 of the IPC is altered into Section 304 Part II of the IPC and he is sentenced to undergo Rl for eight years and to pay fine of Rs.2000/-, in default of payment of fine to further undergo Rl for six months. Sd/- T.P. Sharma Judge Sd/- R-N. Ciiandrakar Judge L^*^--'*.A-L^