HIGH COURT OF CHHATTiSGARH,BILASPUR APPELLANT: (InJail) RESPONDENT: Criminal Appeal No.122 of 2005 Awlam Gunda, son of Bheema, Gond, aged about 48 years, resident of village Kader, Sarpanchpara, P.S. Beejapur, District South Bastar, Dantewada (Chhattisgarh) Versus State of Chhattisgarh, through The SHO, Police Station Beejapur, Distt. South Bastar, Dantewada(CG) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Krishna Kumar Khatri,counsel for the appellant. ; Mr. Arun Sao, Govt. Advocate forthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar. JJ ORAL JUDGIVIENT (2-12-2010) T.P.Sharma.J:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24-1-2005 passed by the Sessions Judge, Dantewada in Sessions Trial No.87/2003, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of cylpable homicide amountingto murder ofAwlam Suklu, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that withoutany iotaof 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 2-1-2003 atabout 3 p.m. the appellant and Awlam Suklu (since deceased) were quarrelling on account of some paddy dispute and during the course of quarrel, Awlam Suklu slapped the appellant over his mouth on which the appellant got annoyed andtook out the knife from his waist and caused r'.' .f': :1. i^ssss?s^ \- <v' one injury over the chest of Awlam Suklu. Awlam Suklu fell down. Thereafter, Awlam Dasru (PW-2) & Awlam Soma (PW-1) rushed towards the spot and other persons also came to the spot. Awlam Suklu died. Awlam Soma (PW-1) lodged FIR vide Ex.P-7. The Investigating Officer left for the sceneof occurrence and after summoning the witnesses vide Ex.P-1, prepared inquest over the dead body of Awlam Suklu vide Ex.P- 2. Dead body was sent for autopsy to Community Health Centre, Bijapur vide Ex.P-8. Spot map was prepared by the Investigating Officer vide Ex.P-9. Dr. R.L. Gangesh (PW-6) cbnducted autopsy vide Ex.P-13and found one stab wound over right side of chest in size of %" x 1/4", right lungs were found pynctured. Cause of death was syncope and death was homicidal in nature. During thecourse ofinvestigation, the accused was taken into custody, he made discloser statement of knife vide Ex.P-3 and knife was recovered 'at the instance of the appellant vide Ex.P-4.' Bloodstained cloth of the appellant was seized vide Ex.P-5. Bloodstained soil and plainsoilwere recovered from thesppt vide Ex.P- ^o. • •,-'• ..;, 1 ''. '-. . /;-. ;;1. ^ i:\':•'['•:^'- •' \- 4. Statementsof the witnesses were recorded under Section 161 ofthe Cr.P.C.. After completion of investigation, charge sheet was filed before the Courtof Judicial Magistrate, Dantewada who committed the case to the Court of Sessions, Jagdalpur. After formation of new Sessions Division Dantewada, the case was transferred to the Sessions Court, Dantewada. < ' 5. In orderto provethe guilt ofthe appellant, the prosecution has examined as many as six witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication jn the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessjons Judge convleted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued fhat conviction of the appellant is substantjally based on the evidence of Awlam Spma (PW-1) & Awlam Dasru (PW-2), they are not eyewitnesses, they have not seen theincident, theirevidence does not inspire confidence, their lllglgllglgg@lllll^ \: evidence is not trustworthy and not safe to relyupon. Even otherwise, this is a caseof single injury on account of quarrel took place befween boththe parties and on the spur of moment on sudden provocationat the instanceof the deceased. Therefore, the act of the appeilant dpes not travel beyond the scope of Section 304 Part-11 ofthe I.P.C. 9. On the other hand, learned State counsel opposed the appeal and submitted that on the basis of nature of injury, depth of injury and the fact that by single injury the a|i)pellant has caused punctured wound of right lungs of the deceased, the trial Court has rightly convicted & sentenced the appellant under Section 302of the I.P.C. 10.1n ordertoappreciate the arguments advanced on behalf pf the parties, we have examined the evidence adduced on behalfoftheprosecution. 11.1n the present case, homicidal death of deceased Awlam Suklu as a result of fatal injury has not been substantially disputed on behalf of the appellant, otherwise also, it is established by the evidence of Dr, R.L. Gangesh (PW-6) and autopsy report Ex. P-13 that the death of the deceased was homicidal in nature. ' 12.As regards complicity of the appellant in the crime in question, Awlam Soma (PW-1) &Awlam Dasru (PW-2), the alleged eyewitnesses, have deposed in their evidence that they heard the quarrel between the appellant & the deceased on which theycame out from their houses, and saw the incident, before them the appellant assaulted the deceased with knife over his chest and caused his death. Defence has cross-examined thesewitnessesatlength.Thereissome discrepancy in theirevidence especially relating to the place from where they have seen the incident and distance oftheir houses from where they haveseen the incident, but, the fact remains that they have seen the incident and the appellant has caused single blow of knife over the chest of deceasedAwlam Suklu which is sufficient for drawing inference that the appellant has caused homicidaldeathofdeceasedAwlamSuklu. 13.As regards motive behind theoffence, motiveonlyaids 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 injuryand other similar circumstances. i^^iii'^M^^ • Sorna 14.1n thepresent case, as per the F.I.R. lodged by Awlam Soma (PW-1), the appellant & the deceased were quarrelling on account of paddy dispute and during the course of quarrel, deceased Awlam Suklu slapped the appellantonhis mouth onwhich the appellant got annoyed andtook out the knife, and caused single blow over the chest of Awlam Suklu. This evidence clearly reveals that the appellant has not caused any injury with intentto cause the death of the deceased, but when he was slapped by thedeceased, on sudden provocatipn and on the spur of moment, he has caused single blow of knife over the chest of the deceased. These facts clearly show that the appellant hasnot caused injury to the deceased with intent to cause his deafh, but while causing such injuryhe was havjng knowledge that by his act,the deceased may die. Therefore, the act ofthe appellant does not travel beyond the scppe ofSection 304 Part-1 ofthe I.P.C. 15.While convicting the appellant under Section 302 of the I.P.C. the trial Court has notconsidered the aforesaid aspect of the case and thereby committed illegality. 16.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 Part-1 of the I.P.C. and the appellant is hereby sentenced to undergo R.l. for eight years, instead of imprisonnfient forlife. The appellant is jncustody since 4-1-2003. He shall be entitled for set off for the period already undergone by him. — Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge !? •/1 :. ^-\ .:••'