c CGURT AT Bi DiViSIONiSENCH: Coram: HON-'BLE S. HON'BLE rv1R. R.L. Jhanwar, JJ. ADpellant (InJajl) Amar Slngh, S/o Subedhar Slngh Salame,: Aged about 45 ysars, R/o Vijlage Ram Taral, Pollce Station Genda Tola^ District Rajnandgaon (Chhattisgarh). 'Versus State of Chhattisgarh, Throygh: Statlon .House Qfflcer, ' Po!ice Station Genda Tola, Tahsll &' Dlstrict Rajnandgaon (C.G.) (CRMiNAL APPEAL UNDER SECTiON 374 (2) OF THE Cr.P.O.) Respondent Mr.Rajendra Tripathj, counsei for the appellant. Mr.D.K.G^vaire, Govt. Advocate forthe State/respondent. (Passedonl 0th May, 2011) PerT.P.SIiarma,J.:- 1. Challenge In this Is to the judgment of convictlon & order of sentence 23.12.2004 by the First Add'rtjonai Sessions Judge, Rajnandgaon; In Sessions Trial No.131/2004, whereby 8c Vv'hereunder !eamsd Flrst Additlonal Sessions Judge sfter hoSoing the appelEant gulit for commission of cuipabie homlcide amounting to.murder of Sukalu Gond convicted him under Sectlon 302 of the J.P.C. and sentenced to undergo 'imprisonment for life and fine of Rs.2000/-, In defauit of payment of fine to further undergo R.l. for six months. 2. Conviction is Impugned on the ground that v^jthout there belng any lota of evidence, the tria! Court has convteted & sentenced the appeliant as aforementloned and thereby committed jliegaiity. 3. As per case of prosecution, on 13.5.2004 at about 7 to 8 p.m. st evsning, cousin brother of the appellant went to the houss of the appeiiant, he ^ consumed iiquor in the house of the appeiiant, thsreaftsr some quarrel took piace, then the appeiiant SuRaiu Gond by axe over his head and caused hls death. Jalv^antin Bai (PW-5), 'wlfe of the appeilant shouted. On second day.Sarpanch Triiok (PVv'-8) went to Po!Jce Station and lodged merg vsde Ex.P.'/7 and F.1.R. vid'e Ex.P/8. offloer Seft for scene of occurrence and after summonlng the vide Ex.P/9 prepared inquest over dead body of Sukaiu Gond vide Ex.P/10,. Spot map was prepared by investigatlng oftlcer vlde Ex.P/11. Bioodstalned soil, plain soll and axe stained with biood were from ths spot vide Ex.P/12. Dead body ofthe deceased was sent for autopsy to BSock Medica! Officer, Churiya vlde Ex.PMA where Dr.A.K-Bansod (PW-6) conducted autopsy vlde Ex.P/4 arsd found followlng jnjuriss- (S) One Incised wound of 7 cm. x 3 cm. x 3 cm. over neck. (li) Left carotid vesseis and ieft jsjguiar vessels were found cut. Cause of death Vo'as s'nock. Patwan aiso prepared 8pot map vlde.Ex.P/5. iloodstajned cioth of the appeliant wss vide Ex.P/13. Artlc!es were sent for chemlcai examinatlon and presence of biood over s-xe and cloth ofthe appeiiant were confirmed vlde Ex.P/15. 4. Statements of the wltnesses were recorded under Sectlon 161 of the Cr.P.C. and after compietion of investigatlonf charge was flied In the Court -of judiclai Magistrate First Class, Rajnandgaon,. who In turn committed the case to the Court of Sessions, Rajnandgaon, frGm wh©re iearned First Additlonal Sesslons Judge, Rajnandgaon, recsjved 'the case on transfer for triai. 5. !n order to prove the gulSt of the accused/appeSSant, the prosecutlon has exarrsined as many as tweive wltnesses. Stateirsent of the accused/appeliant Vv'as recorded under Section 313 of the Cr.P.C., in whlch he denied the circumstances appearing against hlm snd pleaded innocence and faSse Impiication in the c-rime in questlon. 6. After providing opportunity of hearing to the parties, iearnQd First. AddstJonaS Sesslons Judge convicted & sentenced the as aforementsoraed. \ /^. fl-^i^ ^vmysjj Y . ^y ''^?^ "'-..^" ^^-^..^ ^^^ 7. We have heard learned counse! for the parties, the judgment impugned and record ofthe triaS Court. 8. Learned counsei for the appeliant submits that convlctlon is on solitary' evldence of Jhagru (PW-2) whlch does not inspire oonfidence and trustworthy and same is not suffscient for convictson without further corroboration from independent sources. Learned counsel further submlts that eyen otherwise evidence of Jhagru (PW-2) reveaSs that after quarrel betv^een both the persons the appeiiant ©uddenlytook out axe and has caused slngle biow whlch shows that the appelisnt has not caused any Injury with intent to cause cfeath of Sukalu Gond. Even otherwise thers is no motlve for causing such injur^, they were cousin brothers. The decsased hlmse!f has visited the house of the appeliant and he has consumed iiquor shows the intimacy and cordiaj reiatlon between both the partles which further reveais that on account of some dispute suddenly quarrel took piace on a spur of moment and the appelJaRt has caused aforesaid one lnju"y, therefore, if the evidence of aforesald witness believed, sven then case of the appeitant doss not travel beyond the scope of Section 304 Part-i ofthe i.P.C. 9. On the other hand, learned State counsel supported the judgment impugned and submits that the present appej!ant has caused homjcidaj death with intent to cause hls death. After appreciating t'ne evldence avalSabSe on record, the trlai Court has rightiy convicted and sentencect the appeSSant as aforementioned. 10.in order to appreciate the arguments advanced OR behaif of the parties, we have examined the evldence avaltable on reccrd. 11 .In the present case, homlcidai death as a resuit of fatal injury found; •over vitai part of body i.e. neck of deceased Sukalu Gond has not substantiaily disputed on behaSf of the appe!Sant; even otherwlse, It Is estabiished by the evjdence of Dr.A.K-Bansod (PW-S) and autopsy report Ex.P/4. Death ofdeceased Sukaiu Gond was homjcldat In nature. 12.As regards the compllcityof the appeliant in crime In questson, as per nutsheli case of the prosecutlon, injured dead body of deceased Sukalu Gond was found in the house of the appetlant whers no other person ^ 1 '%E^:""|.| \^y "^^A?w" f^. wss present. As per evidencs of Jhagru (PW-2), just befcre death of Sukaiu Gond, deceased Sukalu Gond and the appellant 'A'ere quarreled in verandah, he intervened, then both the persons went insid®the house and wlthin 10 to 15 minutes, he heard weeping sound of wife of the sppellant who was shouting that the appellant has kiiied Sukaiu Gond. This evidence is sufficient for drawing Inference that tne appellant has csused hGmidda! death of deceased Sukaiu Gond. 13.1n the present case, as per snitsal case of prosecutlon, the deceased himseif has vSsited the house ofths sppeilaRt, he consumsd liquor in tne house of the appeiiant, thereafter Incident took plsce. As per evjdence of Jhagru (PW-2), they quarrejed and when st was inter^ened by this wltness, t'nen they went inslde the house, thereafter incident took piace. St shows thst there Is no Inlmicaj reiatlon, they Vv'ere relatlvss. The deceased himseif has vlslted the hous'e of the appeSSant where he consumed ilquor which is prevaient In the remote vlliage area and thereafter on account of some dlspute quarre! took place, the appetlant took out axe whlch Is normal articie used by the viilagers and kept by vlilagers In their houses and caused singie blow on the neck causing his InstantaneousEy death shows that the present appeliant has caused fatal injury on a spur of moment and sudden quarrel, but at the tirr'ie of causlng such injur/ that too over neck by dangerous weapon i.3, axe the appellant was having definite knowSedge that by hi©act the deceased may dle, therefore, the act of the appeiiant squsreiy falis witRln the ambst of Section 304 Part-1 ofthe i.P.C. 14.Wnile convlcting and sentencing the appeSiant under Sectlon 302 of the i.P.C., the.tnai Court has not consldered the most materssl of the cass reiating to motlve and thsreby commltted lllegaSity, tS.For the foregoing reasons, ths appsal is partly ailowed. Convictlon ofthe appsiiant under Sectlon 302 of the i.P.C. is aitered to Sectlon 304 Part-S of the i.P.C. Consldering tne number of JRjury, the sppellsnt is hereby sentenced to undergo R.i. foreight years. The appeliant is sn custody since 15.5.2004, he Is entstied for set off forthe aforesaid perlod. Sd/- T.P. Sharma Judge PA Sd/- R.L. Jhanwar Judge