IF"'*"' ..-^ •;-~u-.-^,.- APPELLANT: (In Jail) HIGH COURT OF CHHATTISGARH. BILASPUR Cj-imina! A^peaLNo.510 of 2005 Sukhru @ Suresh S/o Rup Sai aged about 42 years, resident of Village Kachhar, P.S. Bango, Tahsil Katghora District Korba (CG). RESPONDENT: Versus The State of Chhattisgarh, through the Station House Officer, Police Station Bango, District Korba (CG). {Criminal appeal under Section 374 (2) of Criminal Procedure Code} Present: Mrs. Indira Tripathi, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Diyjsion Bench: - Hon'bleJVIr. TP. Sharma and Hon'ble Mr. R.L. Jhanwar.JJ ORAL JUDGMENT (30-3-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 15-3-2005 passed by the Sessions Judge, Korba in Sessions Trial No.37/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Dharam Singh, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.2,000/-, in default of payment of fine to further undergo Rl for one year. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful night of 1-4-2004 at about 8 p.m. the appellant was quarrelling with Dharam Singh (since deceased) and caused his death by strangulation. Vikram Das (PW-1) went to the police station and lodged FIR vide Ex.P-1. Merg was recorded vide Ex.P-8. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-9, prepared ^ inquest over the dead body of the deceased vide Ex.P-2. Bloodstained soil, plain soil and two pieces of coconuts were seized from the spot vide Ex.P-3. Dead body was sent for autopsy to Government Hospital, Podi Uproda vide Ex.P-16. Dr. Umesh Kumar Markam (PW-9) conducted autopsy vide Ex.P-17 and found following symptoms/injuries: - (1) Tongue protruded; (2) Eyes closed; (3) Blood coming from nose; (4) Decomposition started; (5) One abrasion on left side buttock region bf 2 c.m. x 1 c.m.; (6) One abrasion on right side of neck of 1 c.m. x 1 c.m. 1t Mode of death of the deceased waS asphyxia as a result of throttling. During the course of investigation, the accused was taken into custody, he made discloser statement of geda - wooden piece vide Ex. P-5 and same was recovered at the instance of the accused vide Ex.P-6. He was arrested vide Ex.P-7. Sealed clothes of the deceased were seized vide Ex. P-11. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Katghora who committed the case to the Court of Sessions, Bilaspur. Subsequently, the case was transferred to new Sessions Division, Korba where trial was conducted by learned Sessions Judge. 5. In order to prove the guilt of the accused, the prosecution has examined as many as nine witnesses. The accused was examined under Section 313 ofthe CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned 6essions Judge, convicted & sentenced the appellant as aforementionpd. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that in the present case, conviction is substantially based on evidence of Lachhan Kunwar (PW-2) - mother of the deceased, Mantora Bai (PW-3) - wife of the deceased and Narayan (PW-7), their evidence does not inspire ^^ confidence, it is not trustworthy and same is contradictory to each other. Evidence of the aforesaid witnesses is not safe to rely. Learned counsel further argued that even otherwise, if evidence of the prosecution is considered, the act attributed to the appellant does not travel beyond the scope ofSection 304 Part-11 ofthe IPC. 9. On the other hand, learned State counsel opposed the appeal and submitted that evidence of the aforesaid witnesses is sufficient for drawing inference that the applicant has caused culpable homicide amounting to murder ofthe deceased. 10.1n order to appreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death of deceased Dharam Singh as a result of injury found over neck has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Umesh Kumar Markam (PW-9) and autopsy report Ex.P-17 that death ofdeceased Dharam Singh was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on evidence of Lachhan Kunwar (PW-2), Mantora Bai (PW-3) & Narayan (PW-7). As per evidence of Narayan (PW-7), the appellant and deceased Dharam Singh were going towards their house, they were quarrelling on a land, then he went to the house of Dharam Singh and informed his mother i.e. Lachhan Kunwar (PW-2) that his son and the appellant were quarrelling on which Lachhan Kunwar (PW-2) & Mantora Bai (PW-3) rushed towards the spot. As per evidence of Lachhan Kunwar (PW-2) & Mantora Bai (PW-3), mother & wife of the deceased, respectively, they were informed by Narayan (PW-7) then they rushed to the spot and had seen the incident, the appellant was assaulting the deceased. 13.Defence has cross-examined these witnesses in detail and in their detailed cross-examination they have admitted to the extent that when they reached to the spot, at that time, the appellant was pressing the neck of the deceased i.e. they have not seen any other assault made by the appellant. Aforesaid facts find corroboration from medical evidence. .fc Soma 14.Evidence of Lachhan Kunwar (PW-2), Mantora Bai (PW-3) & Narayan (PW-7) is sufficient for drawing inference that the appellant has pressed the neck ofthe deceased and thereby caused his death. 15.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its impori:ance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 16.1n the present case, as per unrebutted evidence of Narayan (PW-7), the appellant and the deceased both were quarrelling, then he informed mother & wife of the deceased, thereafter they reached to the spot. As per their evidence, the appellant has pressed the neck of the deceased. This shows that both the persons i.e. the appellant & the deceased were quarrelling with each other, they were not holding any weapon, the appellant has not caused injury to the deceased by any weapon, the incident took place on the spur of the moment without any premeditation and on sudden provocation, but at the time of pressing neck of the deceased, the appellant was having knowledge that by his act, the deceased may die. 17.Evidence adduced on behalf of the prosecution is not sufficient to establish that the appellant has committed culpable homicide amounting to murder, but act of the appellant squarely falls within the ambit of Section 304 Part-1 of the IPC. While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid aspect of the case and thereby committed illegality. 18.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 ofthe IPC is altered to Section 304 Part-1 ofthe IPC and the appellant is sentenced to undergo Rl for eight years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo Rl for three months. The appellant is in custody since 3-4-2004. He shall be entitled for set offfor the period already undergone by him. ^fr'.----'" Sd/- R.L. Jha"^lar Sd/- T.P. Sharma Judge /- judge