HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No. 763 of2006 / Appellant Gopal Ram S/o Nanki Nagasia, aged (In Jail) about 26 years, R/o Chalta, P.S. Sitapur,‘Distt. Sarguja (C.G.) Versus Respon&e?1t ‘ State of Chhattisgarh Through : - Sitapur (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF x CRIMINAL PROCEDURE) P.S. Present:- Ms. Ranjana Jaiswal, counsel for the appellant. Ms. Madhunisha Singh, Panel Lawyer for the State. 3" JUDGMENT (Delivered on 24E November, 201 1) Per T.P.Sharma, J.:— 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 08.08.2006 passed by the Sessions Judge, Sarguja (Ambikapur), District Raipur, in Sessions Trial No.357/2005, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Dhanshu Nagesia (since deceased) convicted under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/—, in default of payment of tine to further undergo R.l. for one month. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. As per.the case of prosecution, on fateful day of 06.07.2005 at about 7.00 pm, on account of dispute relating to eating meat appellant assaulted the deceased by stick over his head and caused fatal injuries. PW/2-Banshu Ram went to police station and lodged FIR under Section 154 of Code of Criminal Procedure vide EXP/2. Bloodstained soil and plainEgil were recovered from the spot vide Ex.P/9. Deceased Dhanshu was sent for medical examination vide Ex.P/8. He was examined by S PW/9—Dr.Netram Fransis vide EX.P/8-A. He was unconscious at that time and looking to the injury found over his head he was immediately referred to District Hospital, Ambikapur for further treatment. During the course of treatment Dhanshu died after five days i.e. on 11.07.2005 at '- district hospital, Ambikapur. Merg was recorded. After summoning the witnesses vide EX.P/7, inquest over the dead body of deceased was prepared vide EX.P/3. Spot map was prepared vide EX.P/4. Dead body of deceased was sent for autopsy to District Hospital, Ambikapur vide EX.P/6—A. Dr. S.K. Sinha (PW/5) conducted autopsy vide EX.P/6-A and found following injury: i) Lacerated Wound of 8 cm over forehead with depressed fracture of frontal bone of 7 cm in length. ii) Brain was damaged. 'Mode of death was syncope and homicidal in nature. Clothes of deceased were seized vide EX.PI5. Patwari also prepared spot map vide EXP/.1. Stick was seized from the appellant vide EX.P/10. § '4. Statements of the witnesses were recorded under Section 161 of the Cod‘e of Criminal Procedure (for short the ‘Code’) and after completion of investigation, charge sheet was tiled before Court of Judiciai Magistrate First Class, Ambikapur, who in turn committed the case to the Court of Sessions, Ambikapur. . In order to prove the guilt of the accused/appellant, prosecution examined as many as 09 witnesses. Statement of the accused/appeiiant was recorded under Section 313 of the Code where he denied the v: circumstances_appearing against him and innocence and false implication in the‘crime in question is claimed. . After providing. opportunity of hearing to the parties, learned Sessions Judge, Sarguja (Ambikapur) convicted & sentenced the appellant as aforementioned. @ i . Ms. Ranjana Jaiswal, counsel for the appellant and Ms. Madhunisha Singh, Panel Lawyer for the State are heard, perused the judgment impugned and record of the trial Court. /u . Learned counsel for the appellant vehemently argued that evidence of PW/2-Banshuram and PW/4-Suresh, brother and son of deceased respectively, does not inspire confidence and trustworthy. Even othenNise, if the evidence of these witnesses is considered then the act attributed to the appellant does not travel beyond the scope of Section 304 Part—II of the IPC. She further submits that there was no motive for causing such injury and incident took place on account of eating meat, on sudden provocation without premeditation. Only one injury has been substantially found over the head of deceased. She also submits that deceased died after six days and no other attempt has been made by the appellant. . Learned counsel for the appellant placed reliance in the matter of Joseph V. State of Kerala11 in which Supreme Court held that weapon used is not deadly weapon. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a Iathi, therefore, it cannot be stated that the he intended to cause the injury which is sufficient at the most it can be said that$§ inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be $ culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under S302, IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under 3.304, Part ll, IPC and sentenced him to nve years’ R.’l. . She further placed reliance in the matter of Harish Kumar V. State LDeIhi Administrationf wherein Supreme Court held that nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which Was two days after the injury was inflicted. Under these circumstances, though the injury had resulted in the death of the deceased, we cannot conclusively say that it was sufficient to cause his death. Accordingly, the offence would be one falling under Section 304, Part ll of the IPC. She also placed reliance in the matter of Babu Lal and others V. State o‘f Madhya Pradesha in which Supreme Court has held that However, if their intention was to cause death, they should have inflicted some more injuries on any vital part of the body but 11994 CRI.L.J.21 2 AIR 1993 SC 973' 3 AIR 1993 SC1941 they have given one blow only with the blunt side of the axe and the deceased died only six days later. Therefore, in these circumstances, it cannot be said that they had a common intention for causing the death. But they must be attributed that by inflicting such injuries they were likely to cause the death of the deceased. ln the result, the conviction of the appellant under Section 302/34 IPC falls under Section 304 Part-ll of the IPC. s r 10.0n the other hand, learned Panel Lawyer for the State opposed the appeal and submits that appellant was having sufhcient knowledge that by his act deceased may die and appellant has caused fatal injury over his head, which sh‘ows grave intention of the appellant for causing death of deceased. After appreciating the evidence available on record, Court below has rightly convicted and sentenced the appellant as aforementioned. a f 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12.ln the present case, homicidal death of deceased as a result of fatal ‘ injuries found over the head of deceased has not been substantially disputed on behalf of the appellant, on the other hand, also established by the evidence of PW/9-Dr.Netram Fransis who examined the deceased vide Ex.P/8-A. and evidence of Dr. S.K. Sinha (PW/5) & autopsy report Ex.P/6-A that the death of deceased was homicidal in nature. 13.As regards the complicity of appellant in the crime in question is concerned, conviction of the appellant is substantially based on evidence of PW/2-Banshuram, brother of the deceasedand child witness of 10 I years age PW/4-Suresh, son of deceased. As per the evidence of PW/2- Banshuram, appellant came with stick and assaulted deceased Dhanshu over his head and caused serious injury. As per the evidence of child witness PW/4—Suresh, son of deceased, the incident took place on account of eating meat and appellant assaulted his father. His father was also abusing, he was under intoxication. Defence has cross—examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony to the extent that appellant hasq‘n‘ot caused injury over the head of deceased. Evidence of these witnesses is sufficient for drawing inference that appellant has caused $ homicidal death of deceased. 14.As regards the question of intention and motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 15.ln the present case, as per the evidence of PW/4-Suresh, son of deceased, at the time of incident appellant brought the meat from market hunted by him. PW/2-Banshu, PW/4-Suresh and deceased ate meat after cooking it and kept the meat for appellant then on account of such dispute of eating, appellant has caused injury. Only one injury has been noticed on the head and deceased died after six days. There is no other cause or propriety for causing such injury. The incident took place on sudden provocation without premeditation and on a spur of moment. Supreme Court in the matters of Joseph, Harish and Babulal (Supra) held that death after some days due to one or two blow, the conviction would be fallen'under Section 304 Part-ll of the IPC. 16. In the present case, in absence of specific motive and incident took place on the trivial ground without premeditation and the fact that after causing injury appellant has not caused repeated injury and deceased died after 5-6 days, therefore, the act attributed to the present appellant squarely falls within the ambit of Section 304 Part-II of the IPC. 17.While convicting the appellant under Section 302 of the l.P.C., the Court beliv: has not considered the aforesaid circumstances and thereby committed an illegality. 18.For the foregoingvreasons, the appeal deserves to be and is, hereby allow in part. Conviction of the appellant under Section 302 of the IPC is altered into Section 304 Part-II of the IPC and sentenced to undergo for the custodial period. He is in custody from 07.07.2005 till today. He be released forthwith, if not required in any other case. Vijay