^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BBNCH CORAM: HON'BLBMR. T.P.SHARMA& HON'BLB MR. RANGNATH CRIMINAL APPEAL N0.746/2005 APPBLLNAT ^In iaill VERSUS ^ RESPONDENT Sanak Sai son of Mahdal Qond, Aged 25 years, occupation Labour fafher's Clay-buUt {Kachhc^ house, Village BagdoU, Police Station Sitapur, District ^i^uja (C.G.). State of Chhatdsgm'h fhroi^h Station House Officer, Police Station Sitapur, DisMct Sarguja (C.O.). CRIMINAL APPBAL UNDBR SECTION 374(21 OF THB CODB OF CRIMINAL PROCEDURE. 1973. Present- Mr. K.K. Singh, Advocate for the appellant. Mr. J.A. Lohani, P.L. for the State/respondent. ORAL-JUDGEMBNT (Passedon 19/07/2011) The followine ludsment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in fhls appeal is to the judgtaent of conviction and onler of sentence dated 3/5/2005 passed by Second Additional Sessions Judge, Ambikapur District Sai^uja (C.O.) in Sessions Trial No. 51/05 whereby and where under after holdiag tfae appeUant guilly for the commission of offence of culpable homicide amounting to murder of Shyamdev ^ «• ' t i^s^ 1 ^fc^'1 ® convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for Ufe and fine of Rs. 50,000/~, in default of payment of fine amount additional rigorous imprisonment for 5 years. Conviction is impugned on the ground ftiat wiftiout any iota of evidence sufificient for conviction of appeHant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an UlegaUty. As per case of the prosecution, on fateful day of 6/10/2004 at about 4.00 A.M. on account of Karma festival Shyamdev (since deceased) consiimed liquor with other villagers. Villagers were celebratiag Karma festival at (heir village Bagdoli, Police Station Sitapur, District Sai^uja. Shyamdev went to fhe house of appellant for demanding more liquor then on account of demandmg of liquor, appellant quarreled wifh Shyamdev aad caused injury over his head by stone and caused his instantaneous death. PW6 Narayan Gond went to the Police Station and lodged First Information Report vide Ex. P-4 and marg uitimation vide Ex. P-5. Investlgating Ofiicer left for scene of occurrence and after smnmoning fhe witnesses vide Bx. P-1, inquest over the dead body of Shyamdev was prepared vide Ex. P-7. Spot map was prepared vide Ex. P-6. Blood stained &> plain soil and stone found near , ...^ ^^ "^ -^K^ ® «-. the place of incident were recovered from the spot vide Ex. P-8. Blood stained cloftis of deceased Shyaindev was seized vide Ex. P-2. Dead body of Shyamdev was sent for autopsy to Community Health Center Sitapur DistrictSargujavide Ex. P-11 where PW9 Dr. N.R. Baek conducted autopsy vide Ex. P-14 and found following mjuries:- (i) Crushed injury over skull. (ii) Brast out of brain from fhe skull and mbced with sand and stone pieces. (iii) Blood clout on fhe nose and eyes. (iv) Skull bones were crushed and firactured. Mode of death was coma and death was homicidal ia nature. 4. Stateinents of tiie witnesses were recorded under Section 161 ofthe Code ofCrimmal Procedure, 1973 (in short "ttie Code'). After completion of fhe iavestigation charge sheet was filed before ftie Judicial Magistorate First Class, Ambikapur who in tum committed the case to fhe Court of Sessions, Ambikapur from where leamed Second Additional Sessions Judge, Ambikapur DisMct Sarguja (C.G.) has received the case on transfer for trial. 5. In order to prove fhe guilt of the appellant/accused prosecution examined as many as 9 witnesses. Accused/appellant was examined under Section 313 of ® the Code where he denied fhe circumstances appearmg against htm and pieaded innocence and false implication in fhe crime in question. After affording an opportunity of hearing to the parties, leamed Second Additional Sessions Judge, Ambikapur District Seu-guja (C.G.) has conyicted and sentenced the appellant as aforementioned. Mr. K.K. Singh, leamed counsel for the appellant and Mr. J.A. Lohani, P.L. for fhe State/respondent are heard. Judgment impugned and record of the Court below perused. Leamed counsel for the appellant vehemently argued that conviction of the appellant is based on fhe evidence of PW4 Bai^u Ram Gond and PW6 Narayan Gond & PW7 Sukhdev Ram Gond before whom appellant has made extrajudicial confession does not inspire confidence, trustworthy and there was no motive for coinmission of aforesaid offence. In absence of any evidence to comiect ftie appellant wifh crime in question, conviction ofthe appellant is not sustainabie under fhe law. Leamed counsel for fhe appeUant further subamts that incident took place on sudden quarrel wiftiout premeditation and on spur ofmoment fhereforc, fhe act y.r-'-.! v ^ <?.,'';^^"w^l'"''~"<-.. ^' ,.^1 ' . • ^ /(> :^ attributed to the appeUant does not travel beyond fhe scope of Section 304 Part-I of the Indian Penal Code. 10. On fhe other hand, leamed Panel Lawyer for the respondent/State opposed the appeal and argued that evidence of PW4 Banu Ram Gond who had witnessed the inddent and evidence of PW6 Narayan Ctond & PW7 Sukhdev Ram Gond before whom appeUant has made extrsgudicial confession are sufficient for drawing an inference fhat present appellant has caused homicidal deafh of Shyamdev wifh intent to cause his deatiti. After appreciating the evidence avaUable on record, leamed Second Additional Sessions Judge, Ambikapur Distriet Sai^uja (C.O.) has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced on behalf of fhe parties, we have examined the evidence adduced on behalfofthe prosecution. 12. In fhe present case, homicidal death as a result of fatal injiiry found over the head of deceased Shyamdev has not been substantially disputed on behalf of the appellant on the ofher hand, oftierwise also established by the evidence of FW9 Dr. N.R. Baek and autopsy report Ex. P-14 and death was homicidal in nature. 13. As regards fhe complicity of appellant in crime in question, conviction of the appellant is substmitially (. (= 14. based on the evidence of PW4 Banu Ram Gk>nd who had witnessed the incident and evidence of PW6 Narayan Gond & PW7 Sukhdev Ram Gond before whom present appellant has made extrsgudicial confession. As per evidence of PW4 Banu Ram Gond, Shyamdev was with him at the time of Kccnna festival thereafter Shyamdev went to fhe house of appellant for demanding liquor where appellaat repeatedly pushed him upon fhe floor and assaulted by stone over his head. At the time of incident, wife of appellant was also present in her house, she rushed to the place where Kanna festival was celebratmg for calling persons then other persons came to the spot. Defence has cross- examined this witness at length, in Para-5 & 6 of his cross-exaDaination fhis witness has specifically deposed that present appellant has caused aforesaid injury, he was assaulting Shyamdev and also caused injury to him fhen he fled from the spot. He has not seen tfae appellant at the tline of causing such injmy by stone but fhis witness has specifically deposed tfaat he has seen the inddent. As per evidence of PW6 Narayan Gdnd 8s PW7 Siikhdev Ram Gond, they were caBed in ftie house of appeBant where ftiey saw appellant was present in his house and dead body of Shyamdev was lying m his courtyard and It head of Shyamdev was badly dainaged. Being asked appeUant has made extrajudicial confession fhat he has caused death of Shyamdev by causmg injuiy by stone. Defence has cross-examined these witnesses at length but fhey have not been able to elicit anything in fheir cross-examination to discredit ftieir testunony speciaHy relating to factum of extrajudicial confession made before them. 15. PW2 Fulmait Gond, wife of appellant was also present in her house at the time of incident. As per Paras-3 & 4 of her evidence, she rushed to fhe place where Kccrma festival was celebrating for calling ftie persons to intervene the quarrel between Shyamdev aiid her husband. She has denied other allegations, she is Wife of appellant fherefore, she has tried to save her husband but the fact fhat she rushed to the place where Karma festival was celebrating has been well corroborated by fhe evidence of PW4 Banu Ram Gond. Extrajudidal confession is a weak type of evidence but once it is proved to be true then same may be sufiident for conviction of ttie accused/appellant Evidence of PW4 Banu Ram Ctond is well corroborated by ftie evidence of PW6 Namyan Gond & PW7 Suktidev Ram Gond and also corroborated by the medical evidence are siifficient for drawmg an inference that present ^^•;^;^ ^' ^' * ~^. ^ tfc..; appellant has caused homicidal death of Shyamdev by crushing his head. The act attributed by the appellant i.e. crushing the head by stone is siif&cient for drawing an inference fhat present appellant has caused homicidal death of Shyamdev with intent to cause his death. 16. After appreciatmg the evidence available on record, leamed Second AdditionalSessions Judge, Ambikapur District Sai^uja (C.G.) has convicted the appeMant under Section 302 of the Indian Penal Code and sentenced unprisomnent for life and fine of Rs. 50,000/-, in default of payment of fine amount additional rigorous imprisomnent for 5 years. Prosecution has not collected any material to show the financial position of appellant sufiicient for imposing sentence of fine of Rs. 50,000/-. Court is under obligation to inflict the adequate sentence. We are of the considered view that while imposing the sentence of fine of Rs. 50,000/- more fhan has not adequate sentence offine. 17. ConsequenUy, criminal appeal is partiy allowed. Conviction of the appellant under Section 302 of fhe Indian Penal Code and sentence of imprisonment for life is hereby mamtained but instead of fine of Rs. 50,000/-, appeUant is sentenced to fine of Rs. 10W/-, ^' .^' { \. i--A in default of payment of fine amount additional rigorous unprisonment for 1 month. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^