HiGH COURT GF CHHATTBGARH AT_BiLASPUR. .DSViSSONBENCH: Coram: .HON'BLE MR.T.P.SHARi^A & HON'BLE MR.R.L.Jhanwar, JJ. ADpeiiants (!n Jati) Resoondent Crinnanas ARpeal No.313 of200S 1. Nand Kumar @ Konda aged about 31 years, S/o SuRhchand Kurre, 2. Rajender, aged about 23 years, S^o Sukhchand Kurre, 3. Raju, aged about 25 years, S/o Sukhchand Kurre, ASi R/o Kosa, Kollhapara, Thana Pamgarh, Dis^.Janjgir Champa (C.G.) Versiis The State of Chhattisgarh, Through Poiice Station Pamgarh DJstt.Janjglr Champa (CRrvllNAL APPEAL UNDER SECT§ON374 (2) OF THE CODE OF CR!MJNAL PROCEDURE, 1973) Present:- h4r.Yogeshwar Sharma, counsei for ths appeiiants. Mr.D.K.Gwaire, Govt.Advocate forthe State. ORA.l._JUDG.MENT (Passedon 15tn February, 2011) PerT.P.Sharma,J.:- 1. Chaiienge In thte appesi is to the judgment of convlction & order of sentence dated 11.3.2005 passsd by the Thlrd Additional Sesslons Judge (F.T.C.), Janjgir, in Sessions Trial No.312/2004, whereby & whereunder iearned Thlrd Addltlonal Sessions Judge after holdlng the appeliants gui!t for commisslon of cuipabie homiclde amountlng to murdsr of Jagjitan (since deceased) in sharing common intentjon convicted them under Section 302/34 oftne i.P.C. and sentenced them to undergo Imprisonment for llfe and to pay fsne of Rs.500/-, in default of psyment of flne to further undergo R.i. forthree months. 2. Convsction Is impugned on the ground that without there being any lota of evidence, the triai Court has convictsd & sentenced the appellants as aforementloned and thereby commltted IISegaJlty. 3. As per case of the prosecution, o»n the fatefui day of 30,6.2004 at about 12 at noon injured Jagjitan came into his house, he narrated the Incldent to hls mother Mantora Bai (PW-6), Pardeshi (PW-5), Kamta Prasad (PW- 4) and Tangu (PW-8) that the present appeliants have caused fatai injury to hlm by spade. fvlantora Bai (PW-6) went to the Police Station along with injured Jagjltan and lodged the F.1.R. vide Ex.P/5, thereafEer he was sent for medica! treatment, he was treated by Dr.B.K.ShuRla (PW-20) vide Ex.P/18 and found incised wound of .4" x 1" x 2" over rlght •side of the head. Juglya 3al was also examlned vide Ex.D/6 and found one Inclsed wound of 4" x 1A" over right forearm. During the course of treatment, Jagjitan disd. Same was intimated vide Ex.P/9. Merg was recorded vide Ex.P/10 and numben merg was recorded vide Ex.P/16. tnvestigating officer proceeded for scene of occurrencs and after sumrnonlng the witnesses vide' Ex.P/8, inquest over the body of Jagjlgan was preparsd vlde Ex.P/7. Dead body was sent for autopsy to CiMS, Bii38pur vlde Ex.P/14 where Dr.A.K.ShuRla (PW-21) conducted autopsy vlde Ex.P/19 and found followlng injuries:- (i) Stitched wound over right slde of the head. (li) Two paralieS scratches of 6" and 7" over neck. (Jll) Three semi-regular scratehes over neck. One Irreguiar shape scrstch over right elbowjolnt. (iv) Frontal bone underiying the Injury ?Mo.1 wss found cut. Brain membraln *was also found cut. Cause of death was coma. Spot map was prepared by investlgatsng offlcer vide Ex.P/23. Accused Nand Kumar was taken snto custody, he .' ,made disdosure •statement ofspade vide Ex.P/4, same was recovered at ths instance of accused Nand Kumar vlde Ex.P/3 4. Statements of the wstnesses 'w'ere recorded under Sectlon 161 of the Cr.P.C. and after compietioR of investlgatlon, charge sheet was fi!ed before the Court of Chlef Judiciai Maglstrate, Janjgir, who sn turn committed the case to the Court of Sesslons, Blisspur, from where sZ jsarned Third Additiona! Sesslons Judge (F.T.C.), janjglr recelved the case on transfsr for tria!. 5. In order to prove the guiit of the accused/appeilants, the prosecution has examined as many as 23 witnesses. Statements of the accused/appeiiants were recorded under Section 313 of the Cr.P.C., in whlch they denied the clrcumstances appearing against them and pieaded Innocence and false impiicatlon in the crime In questloR. They have taken the defence of alibl. They have aSso examined defence v^ltnesses Ramkumar (DvV-1), Gori (DW-2), Vljay Kumar Tswari (DW-3), Satyanarayan Rathore (DW-4) and Jugsyabai Kurre (DW-5). S. After provldlng an opportunity of hearing to the partles, iearned Thlrd Additional Sessions judgs convicted & sentenced the appeliants as aforementloned. 7. We have heard Mr.Yogeshwar Sharma, counssi for the appeliants and MrD.K.Gwalre, Government Advocate for the State, perused the judgment Impugned and record of the trial Court. 8. Learned counsei for the appeliants submlts that in the iight of evjdence relating to dying deciaratlon made by the deceased before Kamta Prasad (PW-4), Pardeshi (PW-5), Mantora Bal (PW-6), and Tsngu (PW-8), he Is not disputing the fact that that the appellants have not csused homlddal death of the deceased sn sharing common intentlon but submlt.s that oniy one lnju"y was found over the head of the deceased shows that they have not caused any injury to the deceased with Intsnt to cause hls desth, they have caused injury on sudden provocation v/lthout premeditstion and both the parties quarreling wlth each other, therefore, the act attributed to the present appeSiants does not travei beyond the scope of Section 304 Part-il ofthe I.P.C. 9. OR the other hand, iearned State counsel supported the judgment impugnsd and submits that at the tlme of causlng such injury two persons 'A'ere holding deceased Jsgjltan and appeiiant Nand Kumar has caused fatal injur/ over the head by spade with fuli force, at that tlme the deceased was not havlng any opportunity to save hlm or to take help from other persons shows that the appeiSants have caused fatal injury resuitlng Into his death with intent to cause hls death. 10.in order to appreclate the arguments advanced on behaif of the partles, we have examlned the evidence avsilable on record. 11.in the present case, homiclda! death as a resuSt of Injur/ found over vjta! part of deceased Jagjstan has not been substantlaiiy disputed on behaif of the appeliants, on the othsr hand, ateo establlshed by the evldence of Dr.B.K-ShukSa (PW-20). medlsi report Ex.P/18, Dr.A.K.Shukla (PW-21) snd autopsy report Ex.P/19 which reveals that death of Jagjltan was homicidal in nature. 12.As regards the compllcity' ofthe accused/appellants in crime in question, convlctlon is substantlally based on dying declaration of the deceased before Ksmta Prssad (FW-4), Pardeshi (PVV-5), Mantora Bai (PW-^), and Tangu (PVV-8). The aforessid wltnesses have cJeariy deposed that decessed Jagjitan made dying deciaration before them that the present appeSIants have caused injury to hlm and appeiSant Nand Kumar has caused injur'y by spade, thereafter they took the injured to Police Station. Whlje they wsre taklng him he became unconscious, flnaliy hs was shlfted to hospstai Vv'here he dled during treatment. Defence has cross-examlned thsse wjtnesses at Sength, but has not been abie to eliclt anything In their cross-examlnation to discredit the fact that the deceassd has not made dying declaration before them. 13.The princsple of dylng declaration is based on legai maxsm "nemo monturus proesumltur mentirf'— s man wiji not meet hss makerwith a ile in hls mouth. 14.lord Chief Justlce Baron Eyre {See. R. v. 'Woodcock, (1789) 1 Les 502} .expressed his vlsw relatiRg to dying deciaratlon as follows: - "...That such declarations are made sn extremlty, when the party is at the polnt of death, and when evspj hope of thss worid is gone; when eve"y motive to falsehood is siienced, and the mind Is induced by the most powerfui conslderatlons to speaR ths truth; a situation so solemn and so avvful is consldered by the !aw as creatsng an obiigatlon, equai to that which is Imposed by a posltiye oath sn a court ofjustice..." tS.Whlie dealing with the questlon ofdying declaration, the Supreme Court in ths matter of State of U.P. v. Rani Sagar Yadav1 has' hefd that jf the. court is sattsfjed that the dying deciarstion is true and voluntaryr it can base convictlon on it, withoutcorroboration. 1S.in the present case, svldence of Kamta Prasad (PW-4), Pardeshi (PW- 5), Mantora Bai (PW-6) and Tangu (PW-8) reiatlng to dylng declaration Inspire confidence and tmstworthy and same is safe to rely. These evldence sre suffteient to establish the fact that the present appeilants have caused Injury to Jagjitan in sharing common jntentlon and as a resuit ofsuch injury Jagjitan died. 17-As regards question of motive, In case of direct evidence motlve losses its Importance, even otherwlse, motjve only aids In crimlnaiity and can be Jnferred on the basls of nature of Injury, klnd of v</eapon used, part of the body sffected and othsr sim'siar circumstances. 1S.As per evidence of Kamta Prasad (P'vV-4), he Vv'as toid by Mahendra that the appeSlants have quarreied wlth Jagjitan, after jncldent Jagjitan came to hss house he narrated the incident to his mother and other persons, they ieft the house for Poiice Station. As per evidence of the afbresaid witnesses, during the course of journey he became unconsclous, thereafter he v</as shifted t6 hospitai for treatment. This evidence shov/s that oniy one serious injury has been caused by appeliant Nand Kumar and they have not caused repeated assauit, although they were havlng dangerous weapon i.e., spade, they have not restrasned the deceased when he was going to his house. Thls shows that they have not caused any injury with intent to cause his death but they have caused injury on sudden provocation during the course of quarrel. Evsdence shov/s that the act attnbuted to the appeiiants does not travel the scope of Sectjon 304Part-IEofthei.P.C. 19-Whiie convictlng the appeliants under Section 302/34 of the I.P.C., the trial Court has not considered the nature ot' injury, number of injupy', opportunity for causing more jnjury and the fact that the appellants have \^ not restrsined injured Jagjstan whiSe he ieft the place of incident and thereby committed lliegaiity. 20. For the foregoing reasons, the appeaj is partiy allowed. Convlction of the appeliants under Section 302/'34 of the i.P.C. isaiteredto Section 304 Part-il of the i.P.C. Consldering the nature of Injury and number of jnjupy, the appeliants are hereby sentenced to the custodlai period i.e., perlod aiready undergone slnce 2.7.2004 tlli today for about six years and seven months. They be released forthwith, if not required in sny other cases. i Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge B/- s"r'-^^