' ’‘ HIGH COURT OF CHHATTISGAH! Al BILASPUR Criminal Aggeal No. 86012003 CORAM: HON’BLE SHR} T.P.SHARMA 5 HON’BLE SHRI R.L.JHANWA, JJ. Gyan Sing Binjhwar s/o Sukh Ram (In Jail) Binjhwax‘, aged 24 years, R/o Raja Savaiya, > P.S_ Pithom, District Mahasamund (CG) Versus The Stats of Chhattisgarh Through:- The District Magistrate ahasamund (CG) Present:— Shn' Shailendra Dubey, counsel tbr the appeHant. i Shn' Sandeep Yadav, Dy. Government Advocate far the Stata. aRAL wDGMENT (22.09.2010) Per Tal’.Sharma, J.:— 1. Challenge in this appeal is to the judgment of convictiogl and order of eentenoe dated 03.09.2002, passed in Sessions Tn'alrNo. 259/2002 by the 2N1 Additional Sessions Judge, Mahasamund, (CG), whereby and whereunder the leamed Additional Sessions Jildge after holding the. appellant guilty for commission of murder of Sitaram, convicted the appellallt under Section 302 of the [PC - and sentenced to undergo imprisonment for life'and to pay a line of Rs.1000/ —, in default of payment of line to further undergo R.I. for 2 months. The conviction is challenged on the ground that without any clinching and credible evidence, Court below has convicted and 2. 8 R APPELLANT h .. RESPONDENT M ‘ sentenced the appellant as aforementioned and thereby committed ' illegality. 3. Brief case of the prosecution is that on the fateful day of 23.3.2002, at about 8.00 am, appellant and deceased Sitaram had gone for collecting Mahua. Some dispute took place between them and the appellant picked up a stone and assaulted the deceased on his chest repeatedly; Sitaram fell down and died. Bhikhaxam (PW- 1) was present on the spot; he heard the sound and tn'ed to save Sitaram, but was not succeeded. Bhikharam went toPolice Station and lodged merg intimation vide EX. P/ 1 and F.I.R. vide Ex. P/ 2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses, inquest over the dead was prepared vide Ex. P13. Dead body was sent for autopsy to C.H.C. Pithora vide Ex. P/7. Dr. S.N. Dadsena (PW-5) conducted autopsy vide Ex. P/ 14 and found following injuries : : i. Lacerated wound of 4 x 1 cm x bone deep 11 Lacerated wound of 6 x 1 cm X bone deep. 111 Abrasion of 2 x 2 cm on the left knee. iv. Abrasion of 3 x 2 cm on the left elbow. v. Haemetoma of 6x 6 cm was found inside the brain. The Doctor opined that the death was homicidal in nature. Spot map ‘ was prepared vide EX. P/4. Patwari prepared spot map vide Ex. P/5. Blood stained, plain soil and blood stained stone of 1 kg was seized vide Ex. 'P/6. The same was sent for examination and examined by Dr. S.N. Dadsena (PW-5) vide. Ex. P/8. Blood stained clothes of the appellant were seized vide EX. P19. Seized articles were sent for chemical examination vide EX. P/ 11. Presence of blood was confirmed on the clothes of the appellant and stone found near the place of incident. Photographs were taken. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). G H \ .w 4. After complefion of investigation, charge sheet was $ed before the Court of Judicial Magistrate First Class, Mahasamund, who in tum, committed the case to the Court of Sessions, Raipur from where the learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution examined as many as 5 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6. After aifording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the accused] appellant as aforementioned. 7. We~have heard Shri Shailendra Dubey, learned counsel for the appellant and Shm' Sandeep Yadav, learned Dy. Government Advocate for the State, perused the judgment impugned and record of the Court below. 8. Learned counsel appearing for the appellant vehemently argued that he is not disputing the conviction of the appellant. He is disputing the conviction of the appellant under Section 302 of the IPC as the oifence has been committed by the appellant at a spur of moment, without pre— meditation; therefore, the act of the appellant does not travel beyond Section 304 Part I of the IPC. The injury gaused by the appellant to the deceased was not fatal in nature and no fracture was found. Maximum size of injury was 6 x 1 cm upto bone deep. He argued that both the persons had gone for collecting Mahua in thefleld and there was no occasion for causing death of Sitatam. All of a sudden, quarrel took place between them and on provocation without pre—meditation, the appellant has caused injuxy to the dec6a$ed. In these Veircumstances, act of the appellant does not travel beyond Section 304 Pan I ofthe IPC. 9. Oh the other hand, learned State counsel vehemently opposed the arguments and submitted that the appellant has caused homicidal death of the deceased. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of the deceased as a result of fatal injury has not been substantially disputed on behalf of the appellant, even otherwise it is established by the evidence of Dr. §N Dadsena (PW-5) and autopsy report Ex. P/ 14 and death was homicidal in nature. 12. As regards complicity of the accused/appellant in crime in question is concerned, evidence of Bhikhram (PW-.1), who has lodged the merg intimation vide EX. P/ 1 and FIR vide EXP/2 is sufficient for drawing an inference that appellant and the deceased had gone to the field for collecting Mahua. Bhikhram, who was also present on the spot, heard the sound and went to the spot; at that time, appellant was moving with a stone. He stopped the appellant, but he assaulted Sitaram by the stone, as a result of which, Sitaram died. 1 13. As regards motive is concerned, motive only aids in criminality, in case of direct evidence it losses its importance. Motive can be inferred on the basis of weapon used, part of the body ed‘ected, nature of injury and other similar circumstances. mm... W...“ W k W « a.“ 1 “WW ‘3» “‘vém S x; 14. Admittedly, in the present case, both the persons went for collecting Mahua together and during the course of collection of Mahua, some dispute arose and thereafter, the appellant assaulted the deceased by The stone, present near the spot. The appellant has not used any other dangerous Weapon. He has not caused any serious or grievous injury to the appellant. On sudden provocation, at a spur of moment, without pre meditation, the appellant has caused injury to Sitaram, which proved fatal. In these circumstances, the act of the appellant does not travel beyond Section 304 Part I of the IPC. 15. While convicting and sentencing the appellant, the learned Additional Sessions Judge has not considered this aspect of the case, in which, the incident took place and thereby committed illegality. 16. x sentence of the appellant under Section 302 of the IPC is altered into Section 304 Part l of the IPC and he is sentenced for imprisonment for the period already undergone i.e. from 23.3.2002 Consequently, the appeal is partly allowed. Conviction and sunita till today for about 8 years and 6 months. He be released forthwith, if not‘required in any other case. Sdl- /\ R.L.Jhanwar pSE‘ARMA Judge