HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Criminal Appeal No. 676 of 2006 Appellant/ Rajkumar @ Khora^ S/o Das Gond, (injail) Aged about 31 years, Occupation - Farmer, R/o Village Khadgawa Kala P.S. - Pratapur, Dist. Sarguja (C.G.) Versus State of Chhattisgarh Through : Police Station Pratappur, District Surguja Respondent (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Abhay Tiwari, counsel for the appellant. Mr. Neeraj Mehta, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on 12th December, 2011) PerT.P.Sharma.J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 31.07.2006 passed by the Ist Additional Sessions Judge, Surajpur in Sessions Trial No.325/2005, whereby & whereunder learned Ist Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his brother Vinod Gond (since deceased), convicted under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life and fine of Rs.100/-, in default of payment offine further to undergo R.l. for two months. .^\ 'T 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 the case of prosecution, on fateful day of 17.06.2005 at about 2:00 pm, unfortunate deceased Vinod, brother of present appellant was present in his field, he was irrigating his field. Appellant came to the spot and quarreled on account of irrigation of his field and caused injury over the neck of deceased by spade & also on scapular region and caused his instantaneous death. Incident has been witnessed by Ramvati (PW/1), wife of decegsed and Paras Ram (PW/2). Appellant also made extra-judicial confession before Naan (PW/3). Ramvati (PW/1) went to police station; Pratappur and lodged FIR vide Ex.P/1. Merg was recorded vide Ex.P/10. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/2, inquest over the dead body of deceased was prepared vide Ex.P/3. Bloodstained soil and plain soil were recovered from the spot vide Ex.P/4. Dead body was sent for autopsy to Community Health Center, Pratappur vide Ex.P/7. Dr. Kapil Dev Painkra (PW/5) conducted autopsy vide Ex.P/8 and found following injuries:- i) ii) Incised wound over neck of 10x2 x3 cm with fracture of4- 5 cervical veins. Lacerated wound of6x 3 x3 cm over rightscapular region. The death was homicidal in nature. 6. During the course of investigation, appellant was taken into custody. He made disclosure statement of spade vide Ex.P/5, same was recovered at his instance vide Ex.P/6. Spot map was prepared by investigating officer vide Ex.P/11. Patwari also prepared map vide Ex.P/9. 7. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Pratappur, who in turn.committed the case to the Court of Sessions, Ambikapur from where the learned Ist Additional Sessions Judge, Surajpur received the case on transfer for trial. 4. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 7 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. He has taken defence that both were quarreling for irrigation and during the course of quarrel.all of a sudden spade came into contact with the head of deceased and deceased died. He has further taken defence that he has not caused any injury to deceased with intent to cause his death. 5. After providing opportunity of hearing to the parties, learned Ist Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that in the light of evidence of Ramvati (PW/1), Paras Ram (PW/2) and Naan (PW/3) and the defence taken by the appellant, he is not disputing the fact that appellant has not caused homicidal death of_deceased—fclfi-Jurther submits that incident took place on sudden quarrel without premeditation and only one fatal injury has been caused by spade i.e. agricultural apparatus, which both the parties were holding at the time of incident. Therefore, act attributed to the appellant does not travel beyond the scope Section 304 Part II ofthe IPC. 8. On the other hand, learned Panel Lawyer for the State opposed the appeal and submits that deceased and appellant aje brothers, without any cause and propriety appellant has caused repeated assault by spade and has caused instantaneous death of deceased, which show grave intention of causing death of deceased. After appreciating the evidence available on record, learned Ist Additional Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 10.1n the present case, homicidal death as a result of fatal injuries found over the vital part neck of the deceased Vinod has not been substantially disputed on behalf of the appellant; even otherwise same is also established by the evidence of Dr. Kapil Dev Painkra (PW/5) and autopsy report Ex.P/8 that death ofdeceased was homicidal in nature. 11.As regard complicity of the appellant in the crime in question is concerned, conviction is substantially based on evidence of eye witnesses Ramvati (PW/1), wife of deceased & Paras Ram (PW/2) and extra-judicial confession made by the appellant before Naan (PW/3). As per evidence of Ramvati (PW/1 ), at the time of irrigation of field appellant assaulted her husband and caused his death thereafter she went to jiQlir-p statinn anH li-.rlna CIR ifidn I=w DM—D-u—~ /r>> A ii'^v ^ specifically corroborated evidence of Ramvati (PW/1). As per evidence of Naan (PW/3), appellant has made extra-judicial confession before him that he has killed deceased Vinod. Defence has cross-examined Ramvati (PW/1) at length but she has specifically deposed that she has seen the incident and appellant has caused injury to deceased. Paras Ram (PW/2) has admitted in para 2 of his cross-examination that some altercation took place between both the parties on account of irrigation of land, even as per Ex.P/1, after some altercation between both the parties relating to priority of irrigation to the appellant the incident took place. Both were holding spade on the spot. Evidence of Ramvati (PW/1), Paras Ram (PW/2) and Naan (PW/3) inspire confidence and trustworthy and same are safe to rely that appellant has caused homicidal death of deceased. 12.As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind ofweapon used, part of the body effected and other similar circumstances. 13.1n the present case, appellant and deceased are brothers, theirfields are adjoining, they were working in the field, they were trying to irrigate their land and they were holding spade. On account of priority of irrigation, the incident took place then appellant has caused two injuries to deceased, out of two, one was fatal. Evidence of aforesaid witnesses clearly reveal that there was no intention for causing such death, there were no occasion for causing death but incident took place on a spur pf moment without premeditation. Evidence adduced on behalf prosecution Btea.iu.^li ^i <1* lllhll<nNI '.^••'.-.. •% <£ .<?•' Vijay clearly reveals that act of the appellant squarely falls within the ambit of Section 304 Part 1 ofthe IPC. 14.While convicting and sentencing the appellant under Section 302 of the IPC, Court below has not considered the aforesaid facts and thereby committed illegality. But considering the fact that after altercation, appellant was holding spade which is a dangerous weapon and caused injury over the neck and also on scapular region and while causing homicidal death he was having knowledge that by his act deceased may die. 15.Consequently, the appeal is partly allowed. Conviction and sentence of the appellant under Section 302 of the IPC is altered into Section 304 Part 1 of the IPC and he is sentenced to undergo R.l. for eightyears and to pay fine of Rs.3,000/-, in default of payment of fine amount to further undergo R.l. for six months. Sd/- Sd/- ~-s~° R-N. CHANDRAKAR. 1-1-Sharma i Judge Judge