/^:s\ '^. HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.390 of 2005 APPELLANJ: RESPONDENT: Dharam Singh, S/o Nohar Singh Kamar, aged about 45 years, R/o Village Oud, Thana Mainpur, Distt. Raipur (C.G.) Versus State of C.G. through P.S. Mainpur, Distt. Raipur(C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. Vivek Shrivastava, counset for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (4-4-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 22-1-2005 passed by the Sessions Judge, Raipur in Sessions Trial No.318/2004, whereby & whereunder learned Sessions Judgeafter holding the appellant guilty for commission of culpable homicide amounting to murder of Janki Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for onemonth. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of4-9-2004 at about 4 p.m. appellant Dharam Singh was quarrelling with his son Devlal which was intervened by unfortunate woman Janki Bai (since deceased), Ramcharan (PW-5) & Mangli Bai (PW-6), all ofa sudden, Dharam Singh took out iron chain used for worship and caused injury over chest of Janki Bai as a resultof which she became unconscious and lastly she died. Naranjan (PW-4) went to the police station and lodgect FIR vide L. Ex.P-8. Merg was recorded vide Ex.P-9. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex. P-4, prepared inquest over the dead body of the deceased vide Ex.P- 5. Spot map was prepared vide Ex.P-10A. Dead body was sent for autopsy to Government Hospital, Mainpur vide Ex.P-12. Dr. Vijay Usendi (PW-3) conducted autopsy vide Ex.P-6 and found following injuries: - (1) Bruise over right side of chest postero lateral aspect. Size 3 c.m. x 3c.m. (2) Two bruises on midiliar of back of body at the level of 10th to 12th vertebral region. Size 3 c.m. x 3 c.m. (3) Bruise over upper part of abdomen below epigastic region. Size 3 c.m. x8 c.m. (4) 6th, 7th and 8th ribs were found fractured. (5) Serious injury was found on right and left lungs. Mode of death of the deceased was cardio respiratory arrest due to heavy blood on the right side of chest and lung tissue and excessive haemorrhage in the same area. During the course of investigation, the accused was taken into custody, he made discloser statement of iron chain vide Ex.P-2 and same was recovered at the instance of the accused vide Ex.P-3. He was arrested vide Ex.P-13. Patwari prepared spotmapvide Ex.P-1. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur who committed the case to the Court of Sessions, Raipur where trial of the case was conducted by learned Sessions Judge. 5. In order to prove the guilt of the accused, the prosecution has examined as many as seven witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crimein question. 6. After providing opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. ^^fe.. ^..J^ ® ^- 8. Learned counsel for the appellant submits that although conviction of the appellant is based on evidence of eyewitnesses Ramcharan (PW-5) & Mangli Bai (PW-6), but their evidence does not inspire confidence, same is not sufficient for conviction of the appellant under Section 302 of the IPC. Learned counsel further submits that eveh otherwise, if evidence of the aforesaid witnesses is considered, act of the appellant does not travel beyond the scope of Section304 Part-11 of the IPC. 9. On the other hand, learned State counsel opposes the appeal and submits that evidence of Ramcharan (PW-5) & Mangli Bai (PW-6) is sufficient for drawing inference that the appellant has caused homicidal death of the deceased and the trial Court has rightly convicted & sentenged the appellant in the aforesaid manner. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death ofdeceased Janki Baias a result of fatal injuries found over her body has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Vijay Usendi (PW-3) and autopsy report Ex. P-6 that death of deceased Janki Bai was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on evidence of Ramcharan (PW-5) & Mangli Bai (PW-6). Asper evidence of these witnesses who are husband & wife, on the fateful day the appellant was quarrelling with his son Devlal and at the time of incident when the unfortunate deceased Janki Bai and they tried to intervene the quarrel between son & father, all of a sudden, the appellant took out iron chain used for worship and caused injury over abdomen & back of the deceased, the deceased fell down and became unconscious, when Ramcharan (PW-5) tried to pacify thequarrel, the appellant also tried to assault him by bow & arrow which he has snatched from the appellant. Janki Bai died on the spot. 13.Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony. They are eyewitnesses to the incident and they are present on the spot. Their evidence inspires confidence, their evidence is trustworthy and sufficient for drawing inference that the appellant has caused culpable homicide amounting to murder of deceased Janki Bai. 14.As regards the questionof motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 15.1n the present case, there was no dispute between Janki Bai (since deceased) and the appellant, even there was no occasion for the appellant for causing injury to Janki Bai, but when she tried to intervene in the quarrel between the appellant & his son, all of a sudden, the appellant tookoutiron chain used for worship, not for causing any injury, and caused injuries to the deceased which shows that the appellant was not having any intention to cause any injury to Janki Bai. Even there was no occasion or propriety for the appellant to cause such injury to Janki Bai, but all of a sudden when Janki Bai intervened the quarrel between father & son, the appellant has caused such injuries. However, while causing such injury by iron chain, the appellant was having knowledge that by his act, the deceased may die. The act of the appellant squarety falls within the ambit ofSection 304 Part-1 ofthe IPC. 16.While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid aspect and circumstances and thereby committed illegality. 17. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-1 of the IPC. Considering the nature of injuries, especially fatal injuries over both the lungs ofthe deceased, the appellant is sentenced to undergo Rl for ten years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for one month. The appellant is in custody since 7-9- 2004. He is entitled for set off for the aforesaid perjod. Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge