J' ^^f' Appellant (in Ja") LT OF_ AT lisa^i Coram: «sa s CH, .3 V^ :nminal Chakradhari Agaria, S/o Samsyla! Agsria, aged about 25 year.s, Occupation - Agriculture/Mazdoori, R/o Village - Tllokhan, P.S. - Kelhari, Distt. Korea, Chhattisgarh .s%rinn/^,'sinl \S?'5|jyi iUS?5 is ?-:.ASIta ftl tisgarh, Through P.S. ttiaie 01 Kelhari, Distt - Korea, Chhattisgarh (CRMINAL APPEAL UNDER SECTiON 374 (2) OF THE CODE OF CRiMINAL PROCEDURE, "rsssnii:- ?r^%.=an?-, niiiSijEjt-s;,.. 4r. ankaj Shrivastava, counse! for the appelli K. Gv/atre, Govt. Advocate forthe State. (Passed on 16'" June, 2011) Chailenge in this appeal is to the judgment of conviction & order of sentence dated 29.07.2008 passed by the llnd Additiona! Sessions Judge, (FTC) Manendragarh, in Sessions Tria! No.29/2007, vvhereby & whereunder learned Sessions Judge after 'nolding the appellant guiS't for cornmission of offence of culpable homicide of Suk'nla! (since deceased) amounting to murder convicted under Section 302 of the I.P.C. and sntenced him to undergo imprisonment for life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for tbree months. 2. Convlction is irnpugned on the ground t'nat without there being any iota of eviden*^e, t'ne triai Court 'nas convicted & sentenced the appellant as afoi'ementioned and thereby committed illegaiity. ? ^ . '"l:«k -:iillit,',l.jji l!"e<il .rf" :l!^l^@^ii .!'1!!&;^^?'?S As per case ofthe jjrosecution, on fa'tefui day i.e.on 25.12.2006 at about 07.00 a.m., t'ne appeliant along with Brijlai (PV¥/1) and Gendial (PW/2) vvas digging the soil in the Badi of deceased Sukhlal at some distance, on the instruction of Sarpanch Shiv Prasad (PW/8) for construction of road. On being asked by the deceased that on whose instructions they were digging his iand, then they replied that they were digging the iand on the direction of Sarpanch Shiv Prasad (PVW8). At that time, the deceased tried to assault the appellant by axe however, he saved himseif. Thereafter, both the parties tried to assauit each other. Lastly, deceased sustained injury by the appeilant by spade (Phawda) on the backside of head, upon which he feil down. Thereafter, the deceased •was shifted to the Primary Health Center, Kelhari and during the course i^ E^/*'i rl!pfl I 3 C Ui^;^-! • Bikni Bai (PW/6) went to the Police Station and iodged the F.1.R. vide Ex.P/3. Morque was recorded vide Ex.P/.4. Investiflatinci officer teft ror scene of occurrence and after summoning the witnesses, inquest over dead .body of Sukhlal was prepared vide Ex.P/2. Dead body was sent for autopsy to Primary Healt'n CenSre, Kelhari vide Ex. P/15. Dr. O.L. Berman (PW/14) conducted autopsy vide Ex.P/16 and found incised wound of 2.5" long on back of the head, iacerated wound of 1" contusion on right eye and compound fracture in parieta! bone on back of head. Cause ofdeath was hemorrhafle and homicidal in nature. During the course of investigstion, the appeilant vv'as taken into custody. Spade (P'nawda) was seized from t't-e spot vide Ex.P/5. Blood stained oi! and pia.'n soil were seized vide ExP/6. Spot map was prepared by investigating officer vide Ex.P/10. Seized articles were sent for chemica! examination vide Ex.P/17, P/18 and P/19. Staternents of the witnesses 'were recorded under Section 161 of the Cr.P.C. and after cornptetion of investigation, charge sheet was filed before the Court of Judiciai Maflistrate First Class, Mahasamund, who in turn committed the case to the Court of Sessions, Koriya, w'nich Additionai Sessions Jud.ge received the case on transfer for tria!. !n order to prove the guiit of the accused/appellant, the prosecution has examined as many as 15 witnesses. Sj:atement ofthe accused/appeliant ^ rfliF' vvas recorded under Section 313 of the Cr.P.C. where he denied the circumstances appsaring against him and pleaded innocence and false implicatlon in the crime in question. >. After providing opportunity of hearing to the parties, learned Additions Sessions Judge, Koriya convicted & sentenced the appellant as aforementioned. 9. We have heard tearned counsel for the parties, perused the judgment impugned and record of the trial Court. lO.Shri Pankaj Shrivastava, learned counsel for the appeliant frsnkly submits that io the iight of evidence of prosecution witnesses, the accused has not caused fatal injury on the backslde of head of the deceased Sukhlal. He further submits t'nat as per the case of prosecution witnesses, deceased Sukhlal assauited the appeilant by dangerous weapon axe, however, the appei'ant tried to save himself and thereafter both the persons assaulted each other by dangerous weapon axe and spade (Phawda) and lastiy deceased sustained only one injuiy o'.'er t'ne back side of 'head that too from back side of the spade. Learned counse! furt'ner submits that evidence of Brijla! (PW/1) and Gendiai (PW/2) cieariy show that firstly deceased assaulted the appellant, 'A'ho 'A'as digging the land for consfruction of road on the direction of Sarpanch Shiv Prasad (PW/8) and he has no intention to cause death of deceased. The evidence of Brijlai (PVW1) and Gendlal (PVV/2) is sufficient for drawing inference that in exerdse of right of privata defence, the appellant has caused singie injury to the deceased and has not exceeded his right of private defence, therefore, if the case oft'ne accuseo' /appeilant is considered evsn then fhe act ofthe appeilant does not travel beyond the scope of Section 304 Part-il of the l.P.C. Learned counsel for the appellant further submits that present appellant in custody since 26.12.2006 and has completed more than four and nalt years. 11.0n the other hand, Shri D.K. Gwalre, learned Govt. Advocate appearin^ on behaif of the State opposed the petition and frankly admits that firsily deceased 'nas tried to assauit the appellant and during the course of nit?arr^l iniiirv h?i% hppn E^^i3%pfi ^fi thp d(sr:ps??pri riSS' i0, iiU'^(¥ t !Giv3 WSC i i ^/dUO^U. I.U li 1S ii^^^.-SCtOC^U. •:• :~-f,.,. ""sS' •sy 12.in order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 13.1n the present case, homicidal death of Sukhlal as a result of fatal injur/ found on ths backside of head has not been substantially disputed on behalf of the appeilant, even othen,vise aiso it is established by the evidence of Dr. 01. Berman (PW/14) and autopsy report Ex.P/16 that the death was homicidal in nature. As regard to complicity of the appel'ant in the crime in question is concerned, although the appellant has not disputed homicidal death caused by him but is further istablished by the evidence of Brijial (PW/1) and Gendlal (PW/2), eye witness to the incident and the same are sufficient for drawing inference that the present appellant has caused fatal injury to the deceased >lal 111 14. As regards the question of motive, in case of direct evidence motive losses 'rts importance, even otherwise, motive only aids in criminality and can be InTerred on the basis of nature of injury, klnd of weapon used, part of the body effected and other similar circumstances. 15.1fthe aforesaid fact is considered, then only inference wouid be possible that the appellant has caused injury to the deceased but has not caused with intention to cause his death, but at that time he was havin( knovvledge that by causing such injury, the deceased may die. in these circumstances, the act of the appellant does not travei beyond the scope of Section 304 Part-I! ofthe I.P.C. 16.!n the present case, as per the case of prosecution and the evidence adduced on behalf of the prosecution, especially as per the evidence of Brijlal (PW/1) and Gendlai (PW/2), the appeilant was working in the field of decsased, he was digging the land by spade for construction of road on the direction of Sarpanch Shiv Prasad (PW/8). When the deceased came and asked about the said activity, then he replied that he vi/as digging the iand aiong with Brijta! (PW/1), Gendlal (PW/2) on the direction of Sarpanch Shiv Prasad (PW/8). Thereafter, the deceased_ tried to assault the appellant by dangerous weapon axe and any how;' the appellant saved himself, thereafter both the partles tried to assauit each other. They were in opposite side and tried to save themselv&s, they ,e!s5S5!i"' i];;;|gf:»i!Ssii. were hoiding axe and spade. Lastly, the present appellant has caused sin.qle biov/ on the backside of head of the deceased that too from the back side or spade, resulted into his instantaneous death. The aforesaid circumstances cleariy reveals that the appellant has no intention to comrnit t'ne aforesaid offence, there is no propriety to cause fatal snjury. initialiy the deceased tried to assauit the appellant, however the appeilant saved himself and thereafter sn exercise of his right of private defsnce he caused singie blow by spade on back side of head of the deceased and has not exceeded his right of private defence. Thus, we are of the considered view that the act attributed by the appeiiant does not fal' within the amb't of Sectlon 302 ofthe !PC. 17.Whiie Gonvlcting the appellant under Section 302 of the l.P.C., iearned Sessions Judge has not considered the aforesaid circumstances and thereby committed the illegality. IS.Forthe foregoing reasons, the appea! is partiy aliowed. Conviction ofthe appeHant under Section 302 ofthe l.P.C. is altered to Section.304 Part-il ofthe I.P.C. and sentenced to undergo R.l..for five years. it is stated that the appellant is in custody from 26.12.2006 and he has completed more than four and ha!f years. Thus, the sentsnce awarded to the appel'ant Is reduced to the period already undergone by him. He be released forthwith, if not required in any other case. i --————— Sd/- T.P. Shai-ma Judge Sd/- R.N. Chandrakar Jndge