\\° HIGH COURT OF CHHATTISGARH : BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jail) RESPONDENT Cr.ADDealNo.136of1993 Shatrughan, son of Mansingh, aged 35 years, R/o Camp - 2, Shardapara, Kailash Chowk, Bhilai (M.P. nowC.G.) Versus The State of M.P. now Chhattisgarh. APPEAL UNDER SECTION 374 (21 OF THECRIMINAL PROCEDURE CODE Appearance: Shri Ashok Patil, counsel forthe appellant. Shri Ravindra Agrawal, P.L.for the State. ORAL JUDGMENT (Passed on 03.02.2010) The following oral judgment of the Court was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 27.01.1993 passed by the 2nd Additional Sessions Judge, Durg in Sessions Trial No. 212/90 whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Rameshwar, the Court below has convicted the appellant under Section 302 ofthe I.P.C. and awarded sentence of imprisonment for life. 2. The judgment is impugned on the ground that without considering iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned. 3. Brief facts of the prosecution is that the deceased Rameshwar was having illicit relation with Gangabai, wife of the appellant/accused. 8 days prior to the date of incident i.e. 16.01.90 Rameshwar has taken the co- BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 13:09:09 +0530 •>scst%"si^,., ^^. '^ ^. 7^-' \^. accused Ganga Bai to his house and kept her as his wife. On the date of incident, some altercation took place amongst Rameshwar, Gangabai and the appellant. Gangabai went to the house of Rameshwar and assaulted him by Chappal. At the time the appellant, who was holding stick, went to the house of Rameshwar and assaulted Rameshwar over his waist, leg and repeatedly beathim over his head, due to which, the deceased Rameshwar fell down and blood was oozing. After hearing cries of Rameshwar, persons of vicinity gathered. Baina Bai, who was also present at the spot, went to the police station and lodged the F.1.R. vide Ex.P.7. The deceased was sent for medical examination where he has died. Merg was lodged vide Ex.P.2. After summoning the witnesses vide Ex.P.10, inquest over the dead body of the deceased was prepared vide Ex.P.11. Dead body was sent for autopsy vide Ex.P.15. Autopsy was conducted by P.W.10 Dr. M.C. Mohnat vide Ex.P.9 and found lacerated wound of 3" x 2" x brain deep over right temporal parietal region vertically placed. Multiple fracture of temporal bone was found. Brain material came out from the brain. The accused was taken into custody. He made disclosure statement of the stick vide Ex. P.3 and the same was recovered at his instance vide Ex.P.4. Bloodstained soil and plain soil as also one sponge chappal were recovered from the spot vide Ex. P.5. One pair Chappal was also recovered vide Ex.P.6. Cloths of the appellant were recovered vide Ex.P.8. Seized articles were sent for chemical examination vide Ex.P.13. Presence of blood overstick and cloths of the accused was confirmed by Chemical Examiner vide Ex. P.14. 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed against the appellant before the Court of Chief Judicial Magistrate, Durg who in turn committed the case to the Court of Sessions. The learned Additional Sessions Judge, Durg has received the case on transfer for trial. 5. In order to appreciate the guilt of the appellant, the prosecution examined as many as 13 witnesses. The accused was examined under Section 313 of the Code where he denied the circumstances appearing against him. Innocence and false implication is claimed. ^^s: .^-y <-2>- ^, 6. After affording opportunity of hearing to the parties and after hearing the learned counsel for respective parties, the Court below convicted and sentenced the appellant as aforementioned, 7. We have heard learned counsel for the parties and perused the impugned judgment and record. 8. Counsel for the appellant vehemently argued that according to case of the prosecution, conviction is based on the evidence ofwitnesses i.e. P.W.1 Baina Bai, P.W.2 Ravishankar, P.W.3 Ramprabhav and P.W.12 Ramadheen but their evidence is self-contradictory and full of omissions and contradictions. Their evidence is not safeto rely for the conviction of the appellant under Section 302 of the I.P.C. He further argued that even according to the prosecution case, only fatal injury was found o^'er the head of the deceased shows that the appellant has not caused any injury with intent to cause the death ofthe deceased. 9. On the other hand, learned counsel for the State/respondent opposed the appeal submitted that evidence of P.W.1 Baina Bai, P.W.2 Ravishankar, P.W.3 Ramprabhav and P.W.12 Ramadheen is sufficient for drawing an inference that the appellant was the person who has caused fatal injury over the head of the deceased - Rameshwar, as a result of such fatal injury, Rameshwar died. 10. In order to appreciate the arguments of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury over the head of the deceased Rameshwar has not been substantially disputed by the appellant, on the other hand, has also been established by the evidence of P.W. 10 Dr. M.C.Mohnat, autopsy report vide Ex.P.9 and P.W.8 Dr. V.K.Sao and intimation Ex. P.7 which revealed that fatal injury comprising of multiple fractureof right temporal bone was found over the body of the deceased - Rameshwar and death was homicidal in nature. 11. As regards the complicity of the appeltant in crime in question, the conviction is based on the direct evidence of P.W.1 Baina Bai. P.W.1 Baina Bai has deposed in his evidence that at the time of incident, co-accused Ganga Bai came to the house of Rameshwar and quarrelled with the deceased. She went inside the house of Rameshwar. At that time, the appellant - Shatrughan came with stick and assaulted over his leg, waist and thereafter on his head. Rameshwar cried for help and neighbours Ramprabhat, Ramlal, Ramadheen and other persons came. She went to the police station and lodged report. Shatrughan (the appellant) was trying to escape and he was caught red handed by the neighbours and they took the accused to police station. P.W.2 Ravi Shankar has also deposed in his evidence th^t the appellant came to the house of Rameshwar and assaulted Rameshwar. P.W.3 Ram Prabhav has specifically deposed in his evidence that the appellant assaulted the deceased by stick and another eye witness P.W.12 Ramadheen has deposed that at the time of incident Ganga Bai, wife of the appellant, was standing with Chappal for bearing Rameshwar. The appellant Shatrughan came with stick and assaulted Rameshwar by stick. Rameshwar fell down. Then, persons gathered near the place of incident and the appellant tried to flee away from the spot. In his cross-examination, P.W.12 Ramadheen admitted that prior to the incident, Rameshwar had dragged Gangabai to his house. He has also admitted in paragraph 2 of his cross-examination that neighbours gathered at the time of incident and they have also assaulted Shatrughan but he denied the suggestion that neighbours assaulted Rameshwar. P.W.1 Baina Bai had admitted in her cross-examination that neighbours have decided to boycott Rameshwar and Shatrughan but in her detailed cross-examination she has specifically deposed that the appellant assaulted deceased by stick. In his cross- examination para 2, P.W.3 Ram Prabhav stated that when he reached the placeof incident, the deceased was lying on the ground and appellant was escaping from the spot. It is clear from these witnesses that the appellant was present on the spot and came with stick and on account of some illicit relation of the deceased with his wife, he assaulted the deceased over the head of the deceased. The autopsy report revealed that one fatal injury was found over the head of the deceased. The evidence relating to causing injury by the appellant by all these witnesses inspires confidence, trustworthy and is safe to rely. 12. As regards the motive, the case is based on direct evidence. The aforesaid witnesses, who are present at the spot, have specifically deposed in their evidence that the appellant came with stick and caused injury to the *s^, ^..^ 1 tlglf.%. ., I'^'Jj -3 1 deceased. According to autopsy report, one injury was found overthe head of the deceased shows that the appellant has not caused repeated injury and has caused injury while he was quarreling with his wife. These facts are sufficient for drawing an inference that the appellant has not caused injury with intent to cause the death of the deceased but assaulted the deceased while he was quarrelling with his wife, who was havyig illicit relation with the deceased and even his wife was staying with the deceased in the house of deceased for some days. The appellant has not caused injury by repeatedly assaulting the deceased. These circumstances clearly reveal that he has not caused the injury with intent to kill the deceased and at the time of causing injury he was not having any knowledge bycausing injury and the deceased may die. The evidence adduced on behalf of prosecution clearly reveals that act of the appellant does not travel beyond the scope of Section 304 part II of the I.P.C. 13. After appreciating the evidence available on record, the Court below has convicted the appellant under Section 302 I.P.C. but has not considered the most material aspect that the appellant has not caused injury with intent to kill the deceased and the fact that the appellant has caused the single injury and has not caused injury repeatedly thereby committed illegality. 14. For the foregoing reasons, we are of the view that conviction and sentence of the appellant under Section 302 of the I.P.C. by the Court below is not sustainable under the law. The act of the appellant does not travel beyond the scope of Section 302 of the I.P.C. 15. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. and the sentence of imprisonment for life awarded thereunder isaltered to Section 304 part II ofthe I.P.C. and considering the circumstances in which the offence took place, the appellant is sentenced to rigorous imprisonment for 7 years. The appellant is in custody for some time. The appellant is entitled for set of period already undergone by him Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge