HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 8a HON’BLE MR. RANGNATH CHANDRAKAR, JJ. CRIMINAL APPEAL NO. 41712006 Letang Ram S/o Bhagat alias Solhi Nagesiya aged about 32 years, occupation . Labour, R/o Village Serangdag, Police Station Kusmi, District Sarguja C.G. VERSUS State of Chhattisgarh through Police Station Kusmi, District Sarguja (C.G.). CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMIAL PROCEDURE. APPELLANT RESPONDENT Present:— Mr. DR. Sharma, Sr. Advocate with Mr. B.D. Badgayan, Advocate for the appellant. Mr. D.K. Gwalre, GA. for the State/respondent. JUDGEMENT (Passed on 15/11/2011) The following judgment of the Court was passed bV T.P.’Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10/5/2006 passed by Sessions Judge, Sarguja (Ambikapur) C.G. in Sessions Trial No. 25/2005 wherebyand where under; after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Nandkeshvvar, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 500/ — in default of payment rigorous imprisonment for 1 month. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, in the intervening night of 8-9 December—2004 Nandkeshwar (since deceased) was searching labour for harvesting, during course of search appellant assaulted him by axe over his head and caused instantaneous death. Incident was witnessed by PW7 Thurua Nagesiya, on second day PWI Mithlesh Kumar Yadav son of deceased Nandkeshwar lodged First Information Report vide Ex. P—2 against unknbwn person. Marg was also recorded vide EX. P—l. Investigating Officer left for scene of occurrence and after summoning the witnesses vide EX. P~7, inquest over the dead body of Nandkeshwar was prepared vide EX. P~6. Blood stained and plain soil were recovered from the kitchen garden of appellant vide EX. P—3 85 115. Dead body was sent for autopsy to Community Health Center, Kusmi vide EX. P~16L PW3 Dr. PK. Sinha, conducted autopsy vide EX. P—9‘ and found following injuries:- (i) I Contusion over tip of nose. (ii) of fine amount aditional d f”fi Incised wound of 9.8 X l C.M. over left side of'the head with fracture of temporal bone, occipital bone 8L parietal bone. (iii) Contusion over forehead of 3 X 2 C.M. Death was homicidal in naturei Spot map was prepared vide Ex. 13—8. Patwari prepared spot map vide EX. P—l l. During course of investigation appellant was taken into custody he made discloser statement of axe Vide EX. P—lS, same was recovered at his instance Vide Eyg. P—14‘ Seized articles were sent for chemical examination Vide Ex. P—17 and presence of blood over axe was COnfirmed Vide Ex. P-8. Statements of the witnesses were cord nder Section 161 of the Code of Criminal Procedure, 1973 (i short ‘the Code’). After completio o the nvestiaton Charge sheet was filed before the dicl Magistr First Class, Ambikapur who in turn committed the cas, to the Court of Sessions, Ambikapur. In order to prove the guilt of the appella prosecution examined as many as lO witnesses. Accus/alant was examined under Section 313 0 the ode re he denied the circumstances appearing agaist him and pleaded innocence and false implicaton in t cr in question. ea the r C has ppellant as aforementioned. Mr. DR. ,Sharma, Sr. Advocat with Mr .D. Badgayan, Advocate for the appellant Mr. . Gwalre, GA. for the State/responnt are rd. Judgment impugned and record f the ourt elow perused. Learned counsel for the appellant vehemently argued that conviction 0f the appellant is based on (the evidence 0f PW7 Thurua Nagesiya whose evidence does not inspire obnfidence 86 trustworthy. As per his evidence, he has seen the incident on dark night but he has not informed to other persons till next date. First Information Report was dodged against unknown person it shows that this witness has-not seen the After affording an opportunity of hring to paties, learned Sessions Judge, Sarguja (Ambikapur) .G. convicted and sentenced the 1 rede u n n f igi Juia ate e nt edppel f C whe n i he ime a e . B and D.K de hea o C b incident but has become eyewitness with a View to implicate appellant falsely. His evidence is not safe to the rely without further corroboration from L independent sources. Learned counsel for the appellant further argued that even as per Para—4 Of evidence of PW7 Thurua Nagesiya, present appellant has caused injury t0 Nandkeshwar under fear but prosecution has not explained What was the fear to appellant for causing such injury. As per medical evidence, this is a case of single blow, appellant has not caused repeated injury event as per evidence of PW7 Thurua Nagesiya is considered as true then even act of appellant does not ravel beyond the scope of Section 304 Part—H of the Indian Penal Code. On the other hand, learned Govt. Advocate for the respondent/State‘opposed the criminal appeal and argued that evidence 0f PW7 Thurua Nagesiya is sufficient for drawing an inference that appellant has caused homicidal death of Nandkeshwar. As per Para—4 of evidence of this witness, virtually, appellant is required to explain what fear he was having at the time of causing injury, in absence of such explanation, only inference would be possible that appellant has caused homicidal death with intent‘ to cause death of N In order to appreciate the arguments advancedupn behalf 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 found over vital part of body of Nandkeshwar has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established andke shWar. t ‘ by the evidence of PW3 Dr. P.K. Sinha & autopsy report EX. P-9 and death of Nandkeshwar was homicidal in nature. As regard the complicity of appellant in crime n > question is concerned, conviction of the appellant is substantially based on the evidenCe of PW7 ThurUa Nagesiya who has specifically deposed that appellant has caused injury by axe upon Nandkeshwar in front of hishouse, his house also adjoining to the house -of‘ appellant and courtyard was common. Being asked, appellant told that he has killed Nandkeshwar then he requested to appellant to remove the dead body of Nandkeshwar from in front of his house then he went to the field and appellant stayed in his house. Second day, First Information Report was lodged against unknown person. As per his evidence, he is under fear and has not informed other persons. His statement under Section 161 of the Code has been recorded as Ex. D—3 on 10/12/2004 i.e. third day of such incident, he has narrated the incident. Definitely, his statement nder Section 161 of the Code’has been recorded after two days but only on the ground of delay in recording his statement, his evidence cannot be discarded. Defence has cross—examined this witness at length, in his detail cross—examination, he has specifically deposed, that appellant has caused \injury to Nandkeshwar thereafter he fled from the spot, he .yvas caught hold and brought by his brother. Evidence of PW7 Thurua‘ Nagesiya is inspire confidence 8a rustworthy and same is sufficient for drawing an inference that appellant has caused homicidal death of Nandke shwar. i u t As regard the esi of otive s oncerned, prosécution has not adduced any evidence to establish the motive for commission of offence. In case of direct evidence, motive looses its importance and even otherwise motive is only aid in criminality and it may be proved by other evidence and circumstances. In the present case, as per autopsy report, onecontusion over tip of the nose, one contusion over'forehead and one incised wound with three fractures have been noticed by the doctor, it appears that after receiving injury over the head, Nandkeshvvar fell down thereafter he has received injury over his nose 8L forehead and appellant has caused single blow upon the head resulting into fracture of three bones. Para—4 of evidence of PW7 ‘I Thurua Nagesiya reveals that appellant informed him that he has killed Nandkeshwar on account of fear but prosecution or defence has not explained What fear appellant was having. This is an incident at night in a village, incident took place in front of house of appellant while Nandkeshwar was searching labour for harvesting although, there is no evidence but it may be presumed when appellant saw Nandke'shwar in front of his house then may be under fear, he has caused single blOw without any intention or premeditation but causing such blow withlforce, he was having knowledge that by his act Nandkeshwar may die; Evidence adduced on behalf of the prosecution is not sufficientto prove that appellant has committed homicidal death amounting to murder of Nandkeshwar but evidence adduced on behalf of the prosecution is sufficient to prove the fact that act attributed to appellant squarely falls within the ambit of Section 304 Part—ll of the Indian Penal Code. While convicting and sentencing the quton m i c @ appellant under Section 302 of the Indian Penal Code, CQurt aforesaid Circumstances and thereby committed an illegality. below has not considered the For the foregoing reasons, criminal appeal is partly allowed Conviction and sentence of the appellant under Section 302‘01" the Indian Penal Code is altered into under Section 804 Part—ll of the Indian Penal Code and sentenced rigorous imprisonment for custodial period i.e. for about 6 years & ll months. Appellant is in custody since 12/ 12/2004, he be released forthwith, f not required in any other casej iikmw a ;*’A*.‘V i Sdl l sd/./_ 3 T' P' Jude Shanna i J R.N.Chandrakar Judge k L i p g ‘