HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA Sa HON'BLE MR. N.K. AGARWAL. JJ. Cr. A. N0. 570/2005 APPELLANT VERSUS RESPONDENT Chhotan alias Mansharam S/o Nandu Gond, age-26 years, R/o Village Navgai, Police Station Ramkola, District Surguja (C.G.) State of Chhattisgarh; Through Police Station Ramkola, District Surguja (C.G.) CRIMINAi, ^PPEAL UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE. 1973. Present:- Mr. Abhay Tiwari, Advocate for the appellant. Mr. S.R.J. Jaiswal, P.L./Additional Public Prosecutor for the State/respondent. ORAL-JUDGEMENT (Passedon 03/02/2011) The following iudgment of the Court was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 25/6/2005 passed by First Additional Sessions Judge, Surajpur, District Surguja (C.G.) in Sessions Trial No. 138/2004 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Jagmohan, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life with fine ofRs. 500/-, in default of payment offine amount additional rigorous imprisonment for 2 months. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Courts below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 9/1/2004 at about 2:00 P.M. present appellant was present in his courtyard along with Jagmohan (since deceased). Present appellant was holding axe and by axe, he caused fatal injury and other injury to Jagmohan and caused his instantaneously death. PW1 Rampyare and other witnesses have seen the incident then PW8 Shivmangal Gond went to the Police Station and lodged First Information Report vide Ex. P-6. Marg intimation was recorded vide Ex. P-8. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P- 1. Inquest over the dead body of Jagmohan was prepared vide Ex. P-2. Blood stained axe, other articles stained with blood and blood stained & plain soil were recovered from the spot vide Ex. P-4. Spot map was prepared vide Ex. P-7. Patwari also prepared spot map vide Ex. P-11. Dead body of Jagmohan was sent for autopsy to Primary Health Center, Raghunathnagar, District Surguja where PW7 Dr. V.P. Singh cond.ucted autopsy vide Ex. P-5 and found following injuries:- (i) One injury like hole in brain coupled with fracture on spinal cord. (ii) Incised wound over right thigh and skull was crushed. Mode of death was cardio respiratory arrest as a result of excessive hemorrhage and death was homicidal in nature. 4. 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 the Judicial Magistrate First Class, Pratappur who in turn committed the case to the Court of Sessions, Ambikapur from where learned First Additional Sessions Judge, Surajpur, District Surguja (C.G.) has received the case on transfer for trial. 5. In order to prove the guilt of the appellant prosecution examined as many as 13 witnesses. Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. 6. After affording an opportunity of hearing to the parties, learned First Additional Sessions Judge, Surajpur, District Surguja (C.G.) has convicted and sentenced the appellant as aforementioned. M .m?si-i?j^i ~^^^ • -^ ^3^ A ^ Mr. Abhay Tiwari, learned counsel for the appellant and Mr. S.R.J. Jaiswal, P.L./Additional Public Prosecutor for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence. Prosecution has not examined any witness. As per evidence of PW1 Rampyare, PW2 Mantoriabai, PW5 Roopnarayan, PW8 Shivmangal Gond & PW10 Ramnath Gond, before commission of the incident, appellant was mentally disturbed, he was not having control over his brain and was behaving abnormally \vhich shows that present appellant has not committed culpable homicide amounting to murder of Jagmohan even there was no cause for causing .such death. Prosecution was under obligation to sent the appellant for medical examination to assert his mental position but prosecution has failed to discharge his duty. On the other hand, learned P.L./Additional Public Prosecutor for the State/respondent opposed the appeal and argued that PW1 Rampyare has seen the incident and his evidence is sufficient for conviction of the appellant. After appreciating the evidence, learned First Additional Sessions Judge, Surajpur, District Surguja (C.G.) has not ^•f J %,7cf^& 1 ^ ^y^ i ^^' ^. committed any illegality for convicting and sentencing the appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have exainined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of fatal injury found over the vital part of deceased Jagmohan has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW7 Dr. V.P. Singh and autopsy report Ex. P-5 and death was homicidal in nature. 12. As regard the complicity of appellant in crime in question, prosecution has not examined any eyewitness. As per evidence of PW1 Rampyare, after hearing the sound when he reached to the courtyard of appellant he saw the badly injured body of Jagmohan, which was lying in the courtyard of appellant. Appellant was crushing the body of Jagmohan by his leg, when he opposed the appellant then appellant who was holding axe; tried to threat this witness. In Para-4 of his cross-examination, he has admitted that he has seen the assault made by appellant and also admitted that on the date of incident since morning appellant was behaving like mad. Other witnesses have corroborated the evidence of PW1 Rampyare that when they came to know abouf the incident then they reached to ^ the spot where they saw badly injury dead body of Jagmohan. As per evidence of PW1 Rampyare, appellant was using force by leg upon the body of Jagmohan which was lying in the courtyard of appellant in badly injured condition and he was holding axe. In examination under Section 313 of the Code, appellant has not offered any explanation that who has caused fatal injury to Jagmohan that too in the courtyard of appellant and why he was making assault upon the body of Jagmohan in his courtyard. These facts are sufficient for proving the fact that only appellant has caused homicidal death of Jagmohan. 13. As regard the motive for commission of offence is concerned, motive is only aid in criminality and loses its importance. In case of direct evidence, even othenvise motive can be inferred on the basis of nature of injury, part of the body where injury was caused, weapon used and other like circumstances. 14. In the present case, as per Para-4 of PW1 Rampyare, Para- 4 of PW2 Mantoriabai, Para-3 of PW5 Roopnarayan, Para- 11 of,PW8 Shivmangal Gond & Para-11 of PW10 Ramnath Gond before such incident, appellant was behaving as a mad, he was not having control over his brain even as per evidence of PW1 Rampyare, he was crushing and making assault by leg upon the body of Jagmohan which was lying 15. in his courtyard in badly injured condition. This shows some abnormal attitude of the appellant although appellant was under obligation to take and proof the defence of explanation available under Section 84 of the Indian Evidence Act in terms of Section 106 of the Indian Evidence Act but evidence of aforesaid prosecution witnesses cannot be ignored. These evidence reveal that at the time of causing such injury either appellant has lost his mental control or caused aforesaid injury under certain circumstances may be as per case of the prosecution on the ground of doubt of witchcraft. Aforesaid circumstances reveal that present appellant has not caused homicidal death with intent to cause the death of Jagmohan but at the time of causing death, he was having sufficient knowledge that by his act deceased will die. If aforesaid circumstances are considered together then the act of appellant does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code. While convicting the appellant, trial Court has not considered circumstances in which offence took place and thereby committed an illegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant Chhotan alias Mansharam under Section 302 of the Indian Penal Code is altered into under Section 304 Part-I of the Indian Penal <v Code and considering the gravity of injury, he is sentenced to imprisonment for 10 years. Sd/- T.P. Sharma Judge Sd/- N.K. Agarwal Judge