@ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. CHANDRAKAR, JJ. (CRMINAL APPEAL UNDER SECTICN 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Present:- Mr. Abhay Tiwari, counsel for the appeliant. Mr.Neeraj Mehta, Panel Lawyer for the State. ORAL JUDGMENT (Passed on 27‘“ Juiy, 201 1) Per T.P.Sharma, J.:- . Challenge in this appeal is to the judgment of conviction & order of sentence dated 21.11.2006 passed by the Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No.303l2006, whereby & whereunder learned Sessions Judge after holding the appellant guilt for commission of offence of culpable homicide of Budhram (since deceased) amounting to murder convicted under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.200/-, in default of payment of fine to further undergo R.l. for two months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on fateful day i.e. on 09.06.2006 at about 07.00 a.m., the appellant assaulted deceased Budhram by back side of axe on account of dispute relating to possession of land, upon which Budhram fell down on the ground. His wife Aayato Bai (PW/1) went to‘ Criminal AQQeal No. 871 of 2006 AppeHant Chaitu S/o Thunu Madiya, R/o Gram (In Jail) Errakot Pandu Para, District Bastar (C.G.) Versus Resgondent State of Chhattisgarh police station and lodged F.I.R. vide Ex.P/1. Injured Budhram was sent for medical examined and was examined by Dr. A.K. Sahu (PW/6) vide Ex.P/2 and found following injuries: (1) Lacerated wound of 5x6 cm over left parietal region, brain materiai was coming out. (2) Abrasion over left palm of 1x1 cm. (3) He was unconscious 4. He was admitted in hospita and during the course of treatment deceased Budhram died on 11.06.2006 at Maharani Hospital, Jagdalpur. Merg was recorded vide EXP/.4. After summoning the witnesses, inquest over the dead body of Budhram was prepared vide Ex.P/5. Police has tried for dying declaration vide Ex.P/6 but deceased was not in a position to give statement. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur. Dr. V.K. Jha (PW/10) conducted autopsy vide Ex.P/15 and found following injuries: (1) Incised wound over left parietal temporal region of 2 1/2"x 2". (2) Communitral Fracture depressed of left parietal bone of 5"x4". (3) Haematoma was present in left parietal temporal region of the skull between skull bones and scalp surrounding the wound of 10x8 cm. (4) Massive intracerebral hemorrhage was present in left parietal occipital and temporal lobes of the brain. (5) The mode of death was shock. . During the course of investigation, the appellant was taken into custody. Axe was recovered from the appellant vide Ex.P/9. Blood stained soil and plain soil were seized vide Ex.P/10. Seized articles were sent for chemical examinatiOn vide Ex.P/13. . Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’) and after completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate Jagdalpur, who in turn committed the case to the Court of Sessions, Jagdalpur, which Sessions Judge received the case on transfer for trial. . ln order to prove the guilt of the accused/appellant the prosecution has examined as many as 11 Witnesses Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the l circumstances appearing against him and pleaded innocence and faise impiication in the crime in question. 8. After providing opportunity of hearing to the parties, learned Sessions Judge, Jagdalpur convicted & sentenced the appeiiant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 10.Learned counsel for the appellantsubmits that in the light of evidence of eye witness Paklu (PW/2) and Hidmo (PW/3) he is not disputing that appellant has not caused homicidal death of deceased Budhram. He further submitsthat on account of land dispute while deceased was sprinkling incident took place fe rtilizer in the field of appellant. The appellant caused single blow by back side of axe. Present appellant has caused aforesaid injury and has not nder the law, therefore, the act exceeded his right of private defence’available u of the appellant does not travel beyond the scope of Section 304 Part—ll of the l.P.C. 11.0n the other hand, Shri Neeraj Mehta, Panel Lawyer for the State opposed the petition and submits that appellant was having knowledge that by his act the deceased may die and caused fatal injury along with fracture of skull bone. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant as aforementioned. 12.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. V a result of fatal 13.ln the present case, homicidal death of Budhram as injuries found over vital part of the deceased has not been substantially e also it is established disputed on behalf of the appellant, even otherwis by the evidence of Dr. A.K. Sahu (PW/6) who examined the deceased vide Ex.P/2 and Dr. V.K. Jha (PW/10) and autopsy report Ex.-P/15 that the death was homicidal in nature. 14.As regard to complicity concerned, convicti of Paklu (PW/2) and Hidmo (PW/3), sons of the deceased and eye witnesses. g axe As per of the appellant in the crime in question is on of the appellant is substantially based on evidence their evidence, appellant came near their father, he was holdin and assaulted their father by axe. Both the witnesses admitted the fact that on account of ploughing disputed land, appellant has assaulted his father. The injury report and autopsy report reveal that clotted blood was noticed by both the Drs. over the head of the deceased and the same was not caused by sharp aged part of the axe. As per F.I.R. Ex.P/1, on account of ploughing disputed land present appellant has caused aforesaid injuries. He has not infact made repeated assault to the appellant but this is sufficient to establish the fact that present appellant has caused homicidal death of deceased. The present appellant has caused injuries by blunt part of axe on account of land dispute without intention to cause his death. Therefore, the act attributed to the appellant does not travel beyond the scope of Section 304 Part-ll of the l.P.C. 15.While convicting the appellant under Section 302 of the l.P.C., the Court below has not considered the aforesaid circumstances and thereby committed the illegality. 16.For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the l.P.C. is altered to Section 304 Part-ll of the l.P.C. and sentenced to undergo R.l. for five years. It is stated that the appellant is in custody since 10.06.2006 and thereby completed five years. Thus, the sentence awarded to the appellant is reduced to the period already undergone by him. He be released forthwith, if not required in any other case. Sdl- Rangnath Chandrakar L& \ Sd/— 13 T- P- Sharma I Judge