CW7 31G}! COURT OF CHHATTISGARH. BILASPUF Criminal Appeal Nou698/200’7 Sudama Prasad s/o Heera Lal Sahu, aged 52 years Sum} Kumar sfo Sudama Sahu, aged about '22 years Vinéd Kumar s/o Sudama Sahu aged 2O years A11 R/o of viilags Sakw’iya‘ RS. Khadgava, Dismct Korsa KEG) APPELLANTS {In Jain VERSUS State of Chhattisgarh Through Polics Station : Khadgava, District Korea{CG) CRIMINAL APPEAL U18 374 (2) OF THE CQDE OF CRIMINAL ‘ PROCUDERE RESPQNBENT Appearance: Shn' Abhay Tiwari, counsel for 1116 appellants Smt. Madhu Nisha Singh, P.L. for the State assisted by Shri Vikas Shrivastava, counsel for the Objectoru Division Bench:- Hou’ble shri T.P. shaxma an Hon’ble Shri R.L.Jhanwar,JJ ORAL JUDGMENT (01.03201 1) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of senience dated 4.8.2007, passed by the 15‘ Additional Sessions Judge Manendragarh, Dismct Koriya (CG) in S.T.No. l47/2006, whereby and Whereunder the lemed Additional Sessions Judge, after holding the appellants guilty for r commission of culpable homicide amounting to murder of , ’Roopchand in shaxing common mmntion, convicted (:ach of the appellemt under Saction 302 read with SectiOn 34 of the IPC and sentenced for Efe impriSonmsnt and fine of Rs.500,’v, in default of payment offme to further undergo RI. for 5 months. 2. The conviction is impugned on the ground that without there being arly iota of evidence sufflcient for conviction of the appellants, the leanled Additional Sessions Judge has convicted and sentenced the appellants as aforesaid mentioned and thereby committed illegality. 3. As per case of prosecution, on fateful day of 9.7.2005, at about 2.30 pm, present appellants and Sundari Bai on account of grazing of crop by the cattle of Roopchand (since deceased) chased him, on which, he fled from the fleld and Went to his house. The appellants also chased him to his house and assaulted him by hands and iists and caused injuries, thereafter, they fled from the spot. Seema Sahu (PW- 1) and other persons brought injured Roopchand to Police station Khadgava and thereafter to the Hospital, where he died. Doctor reported to Police Station Chirmiri the fact that Roopchand was brought dead vide EXP/9, On the basis of EX. P/§ initial merg was recorded as EX. P/9A and P/9B. Dehati Nalishi was recorded at the instance of Seems Sahu (PW—1) vide EX.P/ 1, on the basis of which, FIR EXP] 1A was registered. The Investigating Officer left for the scene of occurrence and after summoning Witnesses, inquest over the dead body of the deceased was prepared vide Ex. P[6. Dead body of Roopchand was sent for autopsy to C.H.C. Chirmin' vide EX.P/ 7, where Dr. A.K. Agrawal (PW-9) conducted autopsy vide EX. P/7A and found following injuries : i. Lacerated wound of Ix 0,2 cm x bone deep n Multiple contusion on scalp of various size in various parts over sub apponeurotic hematoma 15.1 Contusion of 2 x 2 cm over nose iv‘ Contusion of 5 x 4 cm OV€r right arm v. Contusion of 6 X 5 cm over right side of tho chest vi. Contusion of 8 x 5 cm below the chest V11 Contusion of 4 X 3 cm over right sido of the chest viii. Contusion of5 X 3 cm over left side of the chest. 1X Fracture of occipita} bone was found. xi. 5th} 6th and 7th right obs were found fracturei Mode of death was ohock amd death was homicidal in hamre, Spot map was prepared vide Ex. P/ 10. Sealed clothes of {the deceased were seized ville EXP] l2. Shirts from aphellants Smlama and Sunil were seized vide Ex. P/4 aml EXv P/‘S. Fatwaii prepared spot map Vide Ex. F72. Seized articles were sent for chemical examination and p1ese11ce of blood was confirmed over the shirts. Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4», After completion of investigation, charge sheet was flied before the Judicial Magistrate First Ciass Mandendragarh, who in turn, committed the case to the Court of Sessions, Baiknnthpur (Koriya), from Where the learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accusedjappellants, prosecution examined as many as 16 witnesses, Accused persons were examined under Section 313 of the Code, in which, they denied the circumstances appearing against them, innocence and false implication in crime in question was claimed. Defence has examined Smt. Manmati (DW—l) and Ramakant (DW—Q), who have deposed that at the time of incident, Seema Sahu (PW~ 1) was present in her School and she was informed by Jhaka that her father is lying unconscious. Shiv Mangal (DW~3) Li— has also deposal that Shambihari Sahu (PW—3) was also not pressnt at tha time of incident and he has not seen the incident. By examining defence witness Janardan Prasad (DW-4) defence has ‘m‘ed to prove that the appellants and Sundari Bai were not present on the spot. They have also examined Ishwar Prasad (DW—5), who has deposed that Roopchand was lying unconscious ‘ 6. After aifording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforesaid mentioned. . We have heard Shri Abhay Tiwan', learned counsel for the appellants and Smt. Madhu Nisha Singh, learned Panel Lawyer for the State as well as Shn’ Vikas Shrivastava, learned counsel for the Objector, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that although defence has, cross examined 5 defence witnesses to prove that the eye witnesses PW—l Seema Sahu and PW—3 Shambihan' Sahu were not present on the spot and appellant Sudama was also not present on the spot. However, in the light of evidence of Seema Sahu (PW— 1), Meena Sahu (PW-2), Shambihari Sahu (PW—3), and Jhaka @ Devram Singh (PW—5), trial Court has rejected the evidence of defence witnesses. As per evidence of aforesaid witnesses, on account of grazing of the crop _ by the cattle of the deceased, in his presence and at his instance, the incident took place and on sudden provocation they assaulted Roopchand by hands and fists. Roopchand was a man of criminal antecedents. Earlier he was COnvicted and sentenced for commission of robbery and many criminal cases were registered against Roopchand. Appellant No. 1- Sudama and the deceased are closed relatives. Sndama is younger brother of the inihis house. x 7 deC€asad, Sudama objected the c11'1m'nal activities of the deceased. The appellallts have not caused any injuxy to the deceased with intent to cause his death. Even otherwise, evidence of prosecution Witnesses revealed that. on sudden provocation they have assaulted the deceased by hands and fists and deceased was alive for more thaii '2 1/2 hours, which shows that they have not caused murder of the deceased. 9. On the other hand, leanied counsel for the State vehemently r opposed these arguments and submitted that evidence of Seema Sahu (PW— 1), Meena Sahu (PW~2), Shamhihan' Sahu (PW-3), and Jhaka @ Devram Singh (PW—5) is sufficient for draw‘mg an inference that the appellants have caused fatal ihjuxies with intent to cause death of the deceased in sharing common intention and Court below has tightly convicted and sentenced the appellants as aforesaid mentioned. 10. .In order to appreciate the arguments advanced on behalf of the parties, we. have examined the evidence adduced on behaif of the prosecution. 11. in the present case, homicidal death as a result of fatal injury found over the body of the deceased Roopchand has not been substantially disputed on behalf of the appellants, on the other hand, it is established by the evidence of Dr. AK. Agrawal (PW—9) and autopsy report Ex. P/ 7A and death was homicidal in nature . 12. As regards complicity of the accused] appellants in crime in question is concerned, conviction of the appellants is substantially based on the evidence of Seema Sahu (PW—1), Meena Sahu (PW—2), Shambihaii Sahu (PW-3), and Jhaka @ Devram Singh (PW—5). Considering the evidence these witnesses and defence Witn€sses Manmati (DW-l), Ramakant (DW—Q), Shivmangal (DW—3), Jailardail Prasad (DW-4) and §shwar Prasaci (DW-S) Court b610w has rejected the evidenw of aforesaid defence Witnesses. In the Eght of evidence of aforesaid defence witnesses and eye witnesses while rejecting the evidence of defence witnesses, Court below has not committed any illegality. As per evidence of PW—l Seema Sahy on the ground of crushing of crop of the appellants field by the cattle of the deceased Roopchand at the instance of Roopchand in his presence, the appellants chased him up to his house and had assaulted him by hands and fists. Her evidence is substantially corroborated by the evidence of Meena Sahu (PW—2), Shambihari Sahu (PW-3), Vishrm Kumar (PW—4) and Jhaka@ Devram Singh (PW—5). l3. Defence has cross examined these Witnesses at length, but a hae not been able to illicit anything in their cross examination to discredit their testimony to the extent that present appellants have not assaulted the deceased by hands and fists and as a result of such injury, the deceased has died and thereby prosecution has proved the homicidal death of Roopchand, caused by the appellants. 14, As regards motive is concerned, motive only aids in criminality, in case of direct evidence it losses its importance. Motive can be inferred on the basis of weapon used, part of the body effected, nature of injury and other similar circumstances. In the present case, as per evidence of Seema Sahu (PW—1) appellants chased her‘father While he was present with his cattle near the field. The appellants told that the deceased cattle were grazing and crushing the crop of the appellants; they abused the deceased and chased him up to their house and they caused injury by hands and fists. This shows that the incident took place at-the time of grazing of the crop of the appellants by the ’ (9“ cattle of the deceased in presenw of the deceased The appellants were not having any weapon. They were not present on the spot and were not waiting for the deceased. When they saw that the cattle of the deceased were crushing their crop then they chased and caused injuries to the deceased and even after causing injuries deceased was alive for 2—3 hours. The relatives of the deceased took him to Police Station and thereafter to the Hospital. External injurieswere not grievous in nature. This evidence shows that on the date of incident there was no propriety for causing any injury to the deceased, but when the appellants saw that their crop was crushed by the cattle of the deceased in his presence then they noted and caused injuries to the deceased by hands and fists shows that they have not caused those injuries with intent to cause homicidal death of the deceased. But, at the time of causing injuries, especially, after failing down of the deceased when they had assaulted him on his chest, they were having knowledge that the deceased may die. Evidence of prosecution clearly revealed that the act of the appellants does not travel beyond the scope of/Section 304 Part ll of the IPC. While convicting and sentencing the appellants, Court below has not considered the circumstances, in which, incident took place and thereby committed illegality. 15. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellants under Section 302/34? of the IPC is altered into Section 304 Part ll read with Section 34 of the IPC. As regards question of sentence is concerned, appellants Sunil and Vinod are in custody since 11.7.2005 till today and thereby they have completed 5 years and 55 ‘months. Appellant Sudama was in custody since 11.7.2005 till 23.4.2009 for about 3 years and 9 months. Considering the injuries, especially, injuries over the chest, all the appellants are sentenced for R.I. for 6 years and $16 of RS500] —, in default of payment of fm6, RJ. for 5 months, Appellant Sudama is oh bail. He shall immediately surrender befcre the 1“ Additicnal Sessions Judge, Manendrégm‘ll for serving the mmaining sentence. , 4 T.P. SHARMA ; J 8d]- Judge 1 €