@ HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.824 of 2003 APPELLANT: (In Jail) Hiraman Mahavir, Aged about 35 years, S/o Shambhu Das Kalar, R/o village Telmuda, P;S. Charama, Kanker, Distt. Kanker (C.G.) Versus State of Chhattisgarh Through P.S. Charama Distt. Kanker (C.G.) {Appeal under Section 374 (2) of the Code of Criminal Procedure} RESPONDENT: Present: Mr. U.K.S. Chandel, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (20—6-201 1) T.P. Sharma, J: .-. . 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 27-6—2003 passed by the 4‘“ Additional Sessions Judge (FTC), Kanker in Sessions Trial No.383/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide‘amounting to murder of Bir Singh, convicted the appellant under Section 302 of the IPC and sentenced him 'z to undergo imprisonment for life & pay fine of Rs.2,000/-, in default of r payment of fine to further undergo Rl for six months. t . 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 day of 8-7—2002 at about 8 i a.m. while Bir Singh (since deceased)‘was cultivating his field, the appellant went there and on the ground of dispute relating to land, he assaulted Bir Singh by Kudali (pick-axe) over face and caused serious injuries. Bir Singh feli down. Smt. Anjani Bai (PW—1) - wife of Bir Singh, with the help of two other persons present on the spot, brought Bir Singh to her house and thereafter, she took him to the hospital. She went to I? ‘ the police station and Iodged FIR vide Ex.P-1. lnitially, injured Bir Singh was examined by Dr. Indra Kumar Som (PW-16) vide EXP-32 and following injuries were found on his person: - (1) Separation of nose along with nasal cartilage with lacerated wound of 2” x 1/2 (2) Lacerated wound over right cheek of 2" x 1/2” and 1" x “A”, (3) Lacerated wound above Ieft eye of 1A” x W. Considering his injuries, injured Bir Singh was referred to higher medical centre. Bir Singh was shifted to Dhamtari Christian Hospital, Dhamtari. The doctor has informed the police vide EXP—36. Thereafter, after death of Bir Singh, death was intimated to the police vide Ex.P-37 and on the basis of Ex.P—37, merg was recorded vide EXP-38. After summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P-18. Dead body was sent for autopsy to Government Hospital, Dhamtari vide Ex.P-12. Dr. Yogendra Kumar Singh (PW-9) conducted autopsy vide EXP-13 and found injuries and stitched wound over face with fracture of maxilla bone. Mode of death was syncope and death was homicidal in nature. During the courseof investigation, pick- axe was seized from the appellant vide EXP-6. Bloodstained and plain soil were recovered from the spot vide EX.P-7. Bloodstained cloths of the appellant were seized vide EXP-9. Spot map was prepared by the Investigating Officer vide Ex.P-14. Patwari prepared spot map vide Ex.P-20. Seized articles were sent for chemical examination vide Ex.P- 3O and presence of blood over pick—axe (kuda/i) was confirmed vide Ex.P-31. 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 Chief Judicial Magistrate, Kanker who committed the case to the Court of Sessions, Bastar at Jagdalpur from where learned Additional Sessions Judge received the case on transfer for trial, 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as nineteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. He has examined defence witness Q t 3 Smt Devbati Bai (DW-1) and has taken defence that he has not caused any injury to the deceased. 6. After affording opportunity of hearing to the parties, Iearned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 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 conviction of the appellant is based on evidence of solitary and relative witness Smt. Anjani Bai (PW-1) — wife of the deceased whose evidence does not inspire confidence, it is not trustworthy and is not safe to rely upon for conviction of the appellant under Section 302 of the IPC. Learned counsel further argued that even as per evidence of the prosecution, on account of land dispute while the deceased was ploughing the field, the appellant has caused single injury by pick-axe (kuda/i), an instrument used for digging the land, which was present on the spot. The appellant was having sufficient opportunity to kill injured Bir Singh, but he has not made repeated assault which shows that he has not caused any injury with intent to commit murder of Bir Singh. Therefore, if evidence of Smt. Anjani Bai (PW-1) is admitted in its face value, even then, act of the appellant does not travel beyond the scope of Section 304 Part-l of the IPC. 9. On the other hand, learned State counsel opposes the appeal and submits that evidence of solitary witness who was present on the spot is sumc‘ient for drawing inference that the appellant has caused culpable homicide amounting to murder of Bir Singh. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11.ln the present case, homicidal death of deceased Bir Singh as a result of fatal injuries has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. lndra Kumar Som (PW—16), medical examination report EXP-32, evidence of Dr. Yogendra Kumar Singh (PW-9') and autopsy report Ex.P-13 that death of deceased Bir Singh was homicidal in nature. & w“ a GY 4 12.As«regards complicity of the appellant in the crime in question, conviction of the appellant is substantiaiiy based on evidence of Smt. Anjani Bai (PW-1) — wife of the deceased. As per her evidence, on the fateful day, she was present on the spot along with her husband, they were ploughing the field for sowing grains, at the same time the appeiiant came and caused single blow over face of her husband, her husband fell down, and then they took him to the hospital. Defence has cross- examined this witness at length, but it has not been able to elicit anything in her cross-examination to discredit‘her testimony relating to the fact that the appellant has not caused any injury tothe deceased. She is wife of the deceased i.e. relative and ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. She was having sufficient opportunity to exaggerate her evidence, but she has specifically deposed that the appellant has caused injury by pick-axe (kuda/I), and she has not stated about repeated assault. Her evidence inspires confidence, it is trustworthy and sufficient for drawing inference that the appellant has caused injury resulting in death of the deceased. '13.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. ~14.As per Case of the prosecution, at the time of ploughing the field on account of land dispute, the appellant has caused blow by kudali (pick— axe), an instrument used for digging the land and normally available with the agriculturiSts. After causing injury to the deceased, the appellant has not made repeated assault. At the time of causing such injury, the deceased fell down, he was brought to the hospital for treatment which shows that in spite of having sufficient opportunity to commit murder of deceased Bir Singh, the appellant has not caused repeated assaults, but at the time of causing such fatal injury over face, the appellant was having knowledge that by his act, the deceased may die. Aforesaid circumstances and evidence clearly show that the appellant has not committed homicidal death with intent to cause the death of Bir Singh, but at the time of causing such injury he was having knowledge that by his act the deceased may die. This shows that act of the appellant does not travel beyond the scope of Section 304 Part—I of the IPC. l 5 15.Whife convicting and sentencing the appellant under Section 302 of the IPC, the trial Court has not considered the most material aspect of the case relating to motive and thereby committed illegality. 16.Consequently, the appeal is partly allowed. Conviction & sentences of the appellant under Section 302 of the IPC are altered to Section 304 Part-l of the IPC and the appellant is hereby sentenced to the period already undergone by him i.e. for about more l l i l @7 2002 till The appellant be released forthwith, other forthwith, if not required in case. ‘ a."xmlk[¥k ' > . sd/. Sd/- f v n ' ; L7" ma. iudgReMA H R.L. Jhanwal‘ w. r "