HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM; : i.;^-^R^.-ts8;^3! HON'BLE MR. T.P. SHARMA & HON'BLE MR. N.K. AGARWAL, JJ. Criminal Apoeal No. 5S9/2006 (1) Ramchandar S/o Sahasram, aged (55 years, R/o Gram Panchayat Shankarpur, Japanpara, Police Station Udaipur, District Surguja (C.G.) ' (2) Manijar Ram S/o Shri Ramchandar, aged 25 years, Gram Panchayat Shankarpiir, Japanpara, Police Station Udaipur, District Surguja (C.G.) VBRSUS RESPONDENT State of Chhattisgarh; Thi'ough Police Station Udaipur District Surguja (C.G.$ CRIMINAL APPEAL UNDBR SECTION 374(21 OF CRIMINAL PROCBDURE CODE 1973, Present:- Mr. Abliay Tiwari, Advocate wifh Mr. Sachia Siugh Rajput, Advocate for the appellants. Ms. Madhu Nisha Srugh, P.L. for fhe State/respondent. ORAL-JUDQEMENT (Passed on 31/01/2011) The followme iudement of the Court was passed bv T.P. Sharma, J:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 11/7/2006 passed by Thtrd Additional Sessions Judge (F.T.C.), Ambikapur, Sui^uja (C.G.) in Sessions Trial No. 242/2005 whereby and where under after holding the appellants guUty for commission of .d*'^ l'"':,.« oSence of culpable homicide amountmg to mx-irder of Manmati in sharine common intention convicted (he appeUants under Section 302/34 of the Indian Penal Code and sentenced rigorous unprisonment for life with fine of Rs. 500/-, in default of payment of fine amount, additional rigorous imprisomnent for one month to each. Convlction is impu^aed on tlie groiind that without any iota of evidence siifficient for conviction of the appellants, Courts below has convicted and sentenced fhe appeUants as aforementioned and fhereby committed an Ulegality. As per case of the prosecution, on fateful day of 10/5/2005 between 2:00 to 3:00 P.M. Panchayat was convened at the instance of Bhoosli Panika. Appellants were present in the Panchayat, fhey were holdmg axe thereafter they assaulted Manmati by axe from its blunt part and- caused her mstantaneously deafh. PW2 Rambai went to the Police Station and lodged Ftrst Information Report vide Ex. P-2. Marg intimation was recorded vide Ex. P-3. Investisating Ofiicer left for scene of occurrence and after summoning fhe witnesses vlde Ex. P-4. Inquest over the dead body ofManmati was prepared vide Ex. P-5. Dead body was sent for autopsy to Govt. Hospital, Udaipur vide Ex. P-18 PW1 Dr, I.D. Bhatnagar conducted autopsy vide Ex. P-1 and found foUowing injuries:- 1 ^KKi 5. (i) One bruise of 3" x 3" over right froiito parietal reglon. (ii) Bruise over both fhe shoulders and chest. (iii} Injui3r No. 1 was-ante-mortem in nature. Mode of death was coma and death was homicidal in nature. Investigating Oflicer prepared spot niap vide Ex. P-8. Patwari prepared spot map vide Ex. P-6. During course of investigation, appellant ~ Manijar Ram was taken into custody. He made discloser statenient ofaxe vide Ex. P-11, same was recovered at fhe instance of appeUant Manljar Ram vide Ex. P-9. Appellant Ramchandar also made discloser statement of axe vide Ex. P-13, same was recovered at the instance of appetlant Ramchandar vide Ex. P-12. Soilwas recovered from fhe spotvide Ex. P-10. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code'). After completion of tnvestigation charge sheet was filed before Judicial Magistt-ate First Class, Ambikapiir who in tum committed the case to fhe Court of Sessions, Ambikapur fi-om where leamed Third Additional Sessions Judge (F.T.C.), Ambikapitr, Surguja (C.G.) has received fhe case on transfer for trial. ,<' In order to prove the guilt of the appeUants prosecution examined as many as 10 witnesses. AppeUants were examined under Section 313 of the Code where they ,.-:.<ii*t '?-.'. -S!f- 10. denied the cu-cumstances appeariiig against them, innocency and false unpllcation m crime in question are clatmed. After affording an«opportuiuty of hearing to the parties, leamed Thtrd Additional Sessions Judge (F.T.C.), Ambikapur, Siirguja (C.G.) convlcted and sentenced fhe appeUants as aforementioned. Mr. Abhay Tiwari with Mr. Sachin Singh Rajput, leamed counsel for the appeUants and Ms. Madhu Nisha Singh, P.L./Additional Public Prosecutor for the State/respondent are heard. Judgment tmpugned and record of Court below perused. Leamed counsel for fhe appellants vehemently argued that in the present case, alleged e}rewitnesses i.e. PW2 Rambai, PW3 Dheersai & PW4 Panikasai have not seen the incident but they have deposed against fhe appellants onfy on fhe gi'ound of political rivaliy. Their evidence does not finds support from the medical evidence. Medical and ocular evidence are contradictory, m fhese ctrcumstances any inference relating to gmlt of the appellants would not be possible. Leamed counsel for fhe aupellants further argued that considering the contradictory statement of eyewitnesses if iniury found over fhe bodv of deceased is considered then even tfae act of appeUants does not travel beyond fhe scope of Section 304 Part-II ofthe Indian Penal Code. -.y ;i '""") 11. On the other hand leamed P.L./Additional Public prosecutor for fhe State/respondent opposed the appeal and subm.its fhat in the present case, evidence of eyewitnesses PW2 Rambai, PW3 Dheersai 85 PW4 Panikasai reveal fhat fhey have exaggerated their statenient in Court but only on the ground of exa^eration entire evidence of ftlese witnesses cannot be discarded. Court are reauired to separate gram of trufh from chaff of falsehood if possible and in present case evidence of these witnesses clearly reveal that both fhe appellants have caused fatal injuiy resulting into instantaneousty death of deceased Manmati. Thev have caused iniiiry bv daneerous weapon i.e. axe alfhough as per evidence and pronipfly lodged Fu'st Information Report appeUants have used blunt part ofthe axe for causkig such tnjuiy. 12. In order to appreciate fhe argiiments advanced on behalf of the parties, we have exam.ined fhe evidence adduced on behatf of prosecution. 13. In -fhe present case, homicidal death as a result of fatal injury foiind over fhe body of Mamnati has not been substantially disputed on behalf of fhe appeUants on fhe other hand, otherwise also established by fhe evidence of PW1 Dr. I.D. Bhatnagar and autopsy report Ex. P-1 and death was homicidal ui nature, ,tllt"..«.i B-"-:»», 14. As regard fhe complicity of appellants in crime tn question, conviction is substantiafly based on the evidence of eyevvitnesses PW2, Rambai, PW3 Dheersai & PW4 Panikasal. AU fhree witnesses have categorically deposed that. Marunati was present near fhe Panchayat where both the appeUants came wifh axe & stick, (hey tried to assaiilt Manmati fhen she ran away then fhe present appeUants chased her and dragged from the house of Chowkidar i.e. PW2 Rambai thereafter they caused injury to her. PW2 Rambai has lodged First Information Report Ex. P-2 and Marg intimation Ex. P-3 on second day, which .reveals that mjur^7 has been caused from the blunt part of the axe. Autopsy report reveals that 3" x 3" bniise was found over right fronto parietal region, which also considerable the fact that injuiy has been caused from the blunt part of the axe. Evidence of aforesaid eyewitnesses reveal fhat firstly appellants chased the deceased Manmati fhen they dragged her from the house of PW2 Rambai, they were holding axe. In these ctrcumstances, it was not possible for the eyewitnesses to watch the incident from close distance or to intervene the mcident but fhe evidence of aforesaid eyewdtaesses reveals that they were present on the spot and they have seen the incident from. considerable distance but fhe fact remain that as per thetr evidence, appellants have caused injury to deceased Manmati. 't:str.:i 7 .'!.•':tff SI.-:;S^:Hii!t» .^-^••^^^ ^;:^:;1^^^ 15. As regard fhe motive for commission of offence is concemed, motlve is onl}' aid in criiainaiity and loses its mipoitance. In oase of direct evidence, even ofhenvise motive can be inferred on the basis ofnature ofinjury, part of fhe bod5r where injury was caused, weapon used and other like circiimstances. 16. In the present ease,.both the appeUants were holding axe and havtng sufficient opporturuty to chop the neck of deceased or caused fatal injury toy sharp part of the axe but they have not caused any injury by sharp part of the axe, only one injury of considerable size has been noticed by the doctor upon the head of deceased Manmati shows that at fhe tinie of causing such injury, present appellants had taken proper precaution by not using sharp aged part of the axe but at the time of caustng such injury by blunt part of the axe, they were having knowledge that by their sict deceased may die, These circumstances shows that appellants have not caused homicidal death of Manmati with iatent to cause her deafh in sharmg coinmon intention but at the time of causing deafh, they were having knowledge that by their act deceased may die. These circumstances are' sufficient for drawing an inference fhat act attributed to the appellants does not travel beyond the scope of iinder Section 304 Part-II of the Indian Penal Code. ^ ••F.',T ' -IIT"**^". ,,;,A^,^^ ^•tii. ^ -.».>£^ :l-r"^swf^r" 17. While convicting and sentencing the appellants under Section 302/34 of the Indian Penal Code trial Court has not considered circumstances m which tncident took place, nature of injuiy and number of mji.uy aiid thereby committed an illegality. 18. For the foregoing reasons, criminal appeal is parfly allowed. Conviction and sentence of fhe appeUants under Section 302/34 of the Indian Penal Code is altered into under Section 304 Part-II read wifh Section 34 of the Indian Penal Code and considermg the act attdbuted to them speciaUy caustng one injuiy, they are sentenced rigorous imprisonment for 7 years wifh fine of Rs. 500/-, in default of payraent of fine amount, additional rigorous imprisonment for one month each. Present appellants are entitled for set off for the period already undergone. Sd/- T-P. Sfaanna itit ;.:.. - ,:.....,..?T^^ ..:';.;^;,JS'?.'^S;K,. |(B- •".-;.'^-^••'^sS^? Sd/- N.K. Agrawal Judge •<'- ^