HIGH COURT OF CHHATTISGARH .AT BILASPUR DIVISION BENCH HON’BLE MR. T.P. SHARMA & HON’BLE MR. KL. JHANWAR. JJ. Cximinal Aggeal No. 401 [2004 _ APPELLANT Dabal' Singh Son of Amar Singh (INJAIL COUSTODY) Gond, aged abou 3O years, resident of Village Chail-Dongary, Chalnapadar, P.S.- Deobhog, Tah. Gariyaband, Distt.— . Raipur (Chhattisgarh) State of‘Chhattisgarh, through P.S. Deobhog, Tah.— Gariyaband, Dism- R CRIMINAL APPEAL UNDER SECTION 374 ‘2) Cr. P.C. Present: — CORAM: ”VERSUS aipur (Chhattisgarh) Shri V.P. Gupta, Advocate for the appellant. Shri Ashish Shukla, G.A. for the State] respondent. RESPONDENT ORAL-JUDGEMENT (Passed on 21 l09l 2010) kg The follo ‘ ‘ud ent of the Court was assed b T.P. Sharma, J:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 17/3/04 passed by First Additional Sessions Judge, Raipur in Sessions Trial No. 13/04 whereby and where under after holding the appellant guilty for the on‘ence of commission of culpable homicide amounting to murder of his brother Gajrajsingh convicted the appellant under Stion 302 of the‘ Indian Penal Code and l. t x ec sentenced imprisonment for life and mle of Rs. 1000/-, in' default of payment of fme amount, additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that Without any iota of evidence sufdcient for conviction of the appellant Court‘below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the. prosecution, on fateful day of 19/1 1/03 at About 8:30 PM. at night both the persons i.e. appellant and deceased are real brothers came from the field. They consumed liquor and they were talking in high tone thereafter, deceased Gajrajsingh threatened the appellant that he will beat by shoe which was objected by the appellant thereafter, he assaulted Gajrajsingh by axe over his head then he fell down. PWI Mahendra Kumar Som heard the sound. then he immediately rushed to the spot and caught ‘hold the appellant, he took Gajrajsingh to Police Station and lodged First Information Report vide Ex. P—l. Gajrajsingh was sent for medical treatment, he was examined by PW5 Dr. Radha Kant vide Ex. P—7 and one incised wound of 3 V2 x 2 ‘A x 1 1/2 c.m. over thehead was noticed thereafter, GaJraJsmgh died on same day Marg was recorded After summoning the Witnesses vide Ex. P— 10, inquest over the dead body of deceased Gajrqjsingh was prepared. Dead body of Gajrajsingh was sent for autopsy to Government Hospital, Deobhog. PW7 Dr. Ashokachandra Vadhva conducted autopsy vide Ex. P—8 and found following injuries:- (i) Stab wound of 6 X 3 c.m. over the head. (ii) E-shaped incised wound over the neck of 8.5 x 1/; c.m. which 3 arms of “4x 1/2 c.m., 3x 1/2 c.m. &4x 1/2 c.m. (iii) Another injury of 1 1/; x 1 Ira c.m. over the chest. Mode of death was coma and death was homicidal in nature. Accused/appellant was taken into custody and he made disclosure statement of axe vide Ex. P-2, Same was recovered at the instance of appellant vide EX. P-3. Blood stained and plain soil were recovered n‘om the spot vide Ex. P—4. Appellant/accused was arrested vide Ex. P—5. Patwari prepared spot map vide Ex. P-6. Seized ‘articles were sent for chemical examination and presence of blood was confirmed on the axe which was recovered at the instance of appellant. 5. Statements of the witnesses were recorded under Section 161 of. the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed 'before theJudicial Magistrate @ First Class, Gariyaband who in turn committed the case to the Court of Sessions, Raipur &om Where learned First Additional Sessions Judge, Raipur received the case on transfer for trial. 6. In order to prove the guilt of the aphéllant/accused i prosecution examined as many as 8 Witnesses. Accused was examined under Section 313 of the Code Where he denied the circumstances appearing against him, innocency and false implication is claimed. Accused/appellant has taken the defence that deceased Gajrajsingh and his relatives were assaulted him anyhow he save himself and pushed the deceased my Gajrajsingh who fell down. 7. After aji‘ording an opportunity of hearing to the parties F learned First Additional Sessions Judge, Raipur has i convicted and sentenced 'the appellant as aforementioned. 8. Shri V.P. Gupta, learned counsel for the appellant and Shri Ashish Shukla, G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that although conviction of the appellant is based on evidence of Will Mahendra Kumar Som but his evidence does not inspire confidence even otherwise one fatal injury was found over the head of Gajrajsingh and appellant and deceased have consumed liquor before the incident. They came from field together, there was no occasion for causing injury, when deceased abused and use filthy language to appellant and told that he will beat by shoe then appellant annoyed and on spur of moment he has caused one injury therefore, if the case of the prosecution is admitted in its face value then even the act of appellant; does not travel beyond the scope of under Section3Q4 Palt-I of the Indian Penal Code. On the other hand, learned Govt. Advocate for the respondent] State opposed the appeal and submits that present‘appellant has caused injury with intent to death of Gajrajsingh therefore, Court below has lightly convicted and sentenced the appellant as aforementioned. In order to appreciate the argument advanced on behalf ‘of the parties we have examined the evidence adduced on behalf of the prosecution. In the present case homicidal death as a result of fatal injury of Gajrajsingh has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW5 Dr. Radha Kant 85 medical examination report Ex. P—7 and (c \:\\ PW7 Dr. Ashokachandra Vadhva 8s autopsy report Ex. P—8 which reveal that fatal injury was found over the head of Gajrajsingh. Mode of death was coma and death was homicidal in nature. As regard the complicity of the appellant in crime in question, as per evidence of PWI Mahendra Kumar Som, appellant and deceased came hum the field after cutting the crop, they were sitting together then he heard the sound of deceased which was telling to appellant and abused him, he also told that he will beat by shoe, when he heard the sound of beating then he immediately went to the room of appellant where he saw Gajrajsingh was lying on the held. Appellant was holding the axe then he caught hold the appellant and tied the appellant with rope. He took the injured Gajrajsingh to Police Station and hospital. Defence has cross-examined this witness at length but has not been able to illicit anything in his cross~examination to ‘discredit his testimony. His evidence is substantially corroborated by the evidence of PW2 Dammdhar, PW3 Ramchandra 85 PW4 Khirobai. Evidence of PWI Mahendra Kumar Som corroborated by the evidence of other witnesses and promptly lodged First Information Report is sumcient for drawing an inference that appellant and deceased came from iield, they were sitting together then deceased abused the appellant and also told that he will beat by shoe then appellant annoyed and caused injury upon head of deceased by axe. Learned First Additional Sessions Judge, Raipur has also held that present appellant has caused injury to the deceased. As regard the question of motive is concerned, the motive is only aid in criminality and loses its importance. In case of direct evidence even, otherwise motive can be inferred on the basis of the nature of injury, part of the body where injury was caused, weapon used and other like circumstances. 15. In the present case, there was no occasion for causing ' injury to each other, both the persons came from field after cutting the crop, they were sitting together, they were real brothers. All of sudden deceased used filthy language to the appellant and told that he will beat by shoe then appellant annoyed and on spur of moment ‘ he caused injury to the deceased by axe who was lying on the field. These facts shows that present appellant has not caused injury to deceased Gajrajsingh with intent to cause his death but at the time of causing injury he was having 'knowledge that Gajrajsingh may die. The offence of appellant is not punishable under Section 302 of the Indian Penal Code but the offence is punishable under Section 304 Part—I of the Indian Penal Code. While convicting the appellant Court below has not considered the circumstances in which incident took place and thereby committed an illegality. Consequently, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 Part—I of the Indian Penal Code and sentenced imprisonment for 8 years and i‘me of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 3 months. Present appellant is in custody since 22/ 1 1/2003, he is entitled for set oif for \x .\ \ the period already undergone. \m: 7 i Sd/- .,... ‘ ' Sd/~ , q / f 1 R.L. Jhanwar {1 '11P. SHARMAiiii: Q_l " $71: iudge i ’/ W Judgei