HI©HCOURT OF CHH^TnS^.RH <4T BILASPUR Criminal ApDeel Ho.422 of 2001 CORAM: HON'BLE MR.T. P. SHARMA B HON'BLE Mft.R.L.JHANWAR, JJ. r--' n APPELLAN- On Jaii) RESPONDPNT Dyrgam Laxmaiya Son of Pochhcx aged about 50 yrs< resident of vilbge Rudra ftom P.S. Bhopal-Pcxttanam &lstt<DQntewada, Chhattisgarh. Versus State of Chhatt'lsgQrh through P.S. Bhopal-Pattanam Distt.Dantewada Chhattisgarh- (CRMTNAL .4PPEAL UN&Eft SECTEON 374 (2) OF THE CObE QF CRIAMNAL PROCEDUftE, 1973} Present:- A^r. B.D^Badgayya, counsel for the appeilant. Mr^avindra Agrawal, PaneJ lawyer for the State/respondent. ORAL JU&^MENT (Passed on 2"d becembsr, 2009) The judgment of the Court wos deHvered by T.P.Sharmo, J.^- 1. Chdienge In this appeal is to the Judgment of conyiction A order of sentence dated 26.4.2001 passed by 1+ie Forth Additiona! Sessions Judge, Jagdalpur, in Sessions Case No.462/97 whereby and whereunder tearned Forth Additionai Sessions Judge after holding the oppelia"t guijty for the offence punishabte under Section 302 of the Indian Penal Code sentenced him to undergo imprlsonment for* ilfe and to pay a fine of Rs.500/-, m defQu't of payment of flne to further undergo rigorous imprisonment for 6 months. 2. -Judgment & order are chaitenged on the ground 1tiat w .out there be|ftg any credible and cllnching cvidence, th@ Court be.b.w has convic.ted and @? sentenced 1+ie appeijant as aforementioned and thereby committed illegaiity. 3- Case of the prosecution, in brief, is that on the fateful day of 20.9,1997 at about 6-7 a.m< at moming the deceased Sunarkar Kristeya was going with his brother's son Sunarkar Chinaiyya (PW-2) towards pond» The oppellant came with axe and told the deceased 1+iat why he has abused him at previous night and assaulted with b!unt part of axe oyer back shoulder of the deceQsed. He fel! down. The acGu^d fled away from 1+ie spot Sunarkar Chinaiyya (PW-2) and other persons took the deceased to the police station Bhopalpattanam cind Sunarkar Chinaiyya (PW-2) has iodged ftojnamcha Sanha yjde ExP/ZA. They took injured to Prlmary Hea!th Centre Bhopalpattanam for treatment. He was examined by Dr.jQgannath Prasad Barediya (PW-1) vide ExP/2 csnd found foibwing injuries^ i) One Jacerated wound over right elbow of 2 cm x 2 cm. ii) One abrasion near <njury No.l of 2 cm. x 2 cm. iii) One contusion over right side of the chest of 2 cm. x 2 cm. jv) Qne contusion over teft side of the chest of 2 cm. x 1 cm. v) Fracturs of 7th and 8th ribs 4. Doctor has referred the injured to Maharani Hospital, Jagdalpur vjde ExP/3. In 1+ie absence of any conyenience facijit/ for shifting, they stayed at Bhopalpattanarn. where he dsed at about 11 p.m. Sunarkar Chinaiyya (PW-2) has lodged 1+ie report vide Ex.P/6. Police has prepared inquest over the body of the deceased vide Ex.P/1- Dead body was sent for autopsy. Autopsy was conducted by Dr.Jagannath Prasad Barediya (PW-1) vide Ex.P/4 and found the aforesaid injuries and punctured of Jung.Cause of death was Shock as a resu!t of massive interna! bleeding irr thoracjc cavity because the broken piece of rib punctured the left lung. Death was homlcidGl .in nature. The appellant took out the axe from forest inside the grass which was recoyered frorp the appellant vjde Ex.P/8. Axe wasexamined by Dr.Jagannath Pmsad Barediya (PW-1) vlde ExP/5 and opjned that injury found oyer the body of the deceased may be caused by CD<€. 5» Statements of the witnesses were recorded under Se-ction 161 of the Code of Crimina! Procedur-c, 1973 (hereinafter referred to QS tthe Code') arsd after compietlon of investi9atlon, charge sheet was fibd in the Court of Additlona! Chlef Judicia! Maglstrate, Jagdaipyr, who m turn committed the case to the Court of the Sessbns Judge, Jagddpur from where Forth Additbnal Sessions Judge, Jagda'pur received the same on transfer for trbl 6. In orcler to prove the guilt of the accused/appelbnt, the prosecution ex.Gmined as many a^ 8 witnesses. Statement of the accused/appeSiant wo.s abo recorded under Section 313 of the Code where he denied the clrcumstonces appearing agalnst him and innocence and false ImpSicotion is cbimed. 7. Learned Forth Additional Sesslons Judge Gftcr affording opportunity of hearing to the parties, convicted and sentenced the Qccused/appeSiant as aforementioned. 8. M/e haye heard AAr<B»&-Badgayya, counse! for the Qppe'bnt and Mr.Ravindra Agrawa!, Panel lawyer for the State/respondent and peruse.d the judgment impygned as aiso record of the Court bebw. 9» Lewned coun.se 1 for the. appeJ!ant sybmits that in the absence of any credibie and cJinching evidence agalnst the ^pellcsnt and enmity between the partjes, convjction of the appei!ant js not sustdnable under the bM/. Learned counsel further submits that It is clear from the case of the prosecution that deiiberatcly and intenttondJy the appellant has used blunt part of axe which shows intentlon for cousing slmp'e or grievous jnjury not amounting to homlclda! death or-murder, therefore, at 1+ie worst his act may be the offence punishable under Section 304 Part I of the Indian ^ Penal Code and the present appelhnt hc&s suffered ^he sentence about more than 8 years. 10.0n the oi^er ho.nd, learned State coun^sl supported the Judgment Impugned. 11. In order to appreciate the contentions of the parties; we have examined the evidence Qyaifobte on record- Romicldd dealfi as a result of ante-mortem fatal injurles of deceased Sunarkar Kristeya b not djsputed by tihe o.ppeltant, otherwise abo estabJished by the eyidence of Dr-Jagctnnath Prasadl Borediya (PW-1) cxnci Snquest report (ExP/1), autopsy report (Ex?/4) where Dr.Jagannath Prasad Baredsya (PW-1) hos specjfjca?!y deposed that he has found 5 Injuries including punctured wound of !un§and death was homicicJQ! in nature. 12,As regcirds the compiicify of the accused/appellont in the crime in question, the prosBcution has e?<amined eyewltnesses Sunarkar Chlnaiyya (PW-2), son of brother of the deceased, Sunarkar Babiyya (PW-3)/Latkar Buchaiyya (PW-4), ^omas Kr'isteya (PW-5), burgam Batt-u Bai (PW-6) and Mabkka (PW-7). Learned For1+i Addltlona! Sessions Judge has not relied upon the statements of Sunarkar Chlnaiyya (PW-2) and Sunarkar Balalyya (PW-3) but pbced reliance on the evidence of Latkar Buchaiyya (PW-4), Durgam Battu Bo' (PW-6) and Maiakka (PW-7). Latko-r Buchaiyya (PW-4) hcss deposed in his evidence that the deceased was crying (^^rsit-^^T-'sst), at that tjrne he was sitting for ease» After the incident rebtives of 1+ie deceased took him in their house. In his cross-exam'nation, he has deposed that Qfter hearing sound, he had not gone to help the deceased. Durgam Batti! Bai (PW-6) and Malakka 0>W-7) haye corroborated th®evidence of LatkQr Buchasyya (PW-4). According to their statement, they had gone to forest for ease with burgam Bottu Bffl! (PW-6). They have seen 1tiat the appeiS'wit was assaulting the deceased, then they went to their house. They informed the incident to re'atiye of ths deceased. In their cross- examsnation, they have deposed that tiiey have seen the incldent and they have denied thc suggestion that they have not seen the incident^ Evidence of Latkar Buchaiyya (PW-4), Durgam Banu Bai (PW-6) and Malakka (PW-7) are unchallenged and inspire confsdence and trustworthy. Their statements are safe to re!y. IS.Learned Forth Additional Sessions Judge hos convicted the appeliant on the basis of statements of the aforesaid witnesses which have been supported by prompt Jodged Rojnamcha Sanha (ExP/7^)/ F.I-R. (ExP/6) and medical evsdence- The aforesasd evidence is sufficient for drawing inference 1+^at the appelbnt has caused fatal snjuries and c<xused horpicida! death of the deceased Sunarkar Kristeya. 14. As regards the question of motiye ss concerned, m case of direct evidence, question of motiye losses Jts jmportance. Even otherwise, motsve is aid in criminaiity and st can be snferred from fhe kind of weapon used, part of body effected, nature of injury and other circumstances. 15.In the present case, the evidence adduced on behaif of the prosecution clearly shows 1+iat the appelfont who was holdsng axe has caused Injuries oyer the chest and elbow from blunt part of axe and not fromsharp part of axe which shows that he want to teach the dececu^d lesson by c^using grievous injury by blunt part of axe. 16.0n the basis of aforesaid eysdence; »t ss difficult to hold that the appellant has caused homicidal death amounting to murder of the deceased- HJS act does not traye! beyond Sectlon 304 Part I of the Indian Penal Code. Whi!e convictlng the appelbnt, the Court below has not considered the most materia! aspect of use of part of weapon and l^ereby committed iiJegality in convicting the appellant under Section 302 of the Indian Pend Code. The Judgment impugned is not sustasnob'e under the law and it requires modification- 17-For the foregoing reasons, the appeal is partiy a!!owed» Judgment iwpugned is partiy modified and instead of conyjction under Section 302 of 6 '^/ the Indicin Pena! Code, the appeltent is convicted undcr Section 304 Part I of the Indian Penal Code. The present appellant was in custody 22-9.97 to 24.11.97 and thereafter he is in custody since 26.4.2001 to tsll today for more than 8 years and 10 months. Custodsa! persod of tiie q^pellant is sufficient sentence under Section 304 Part I of the Indsan Penal Code. Accordingly, insteQd of imprisonment for life and fine of fts.500/-, the appeJIant is sentenced imprlsonment of custodjal period Le. about more than 8 years and 10 months. He be reieased, if not required in any other CGSC. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge B/- ^