'^7'^ -%'ir'1" HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR. R.N. CHANDRAKAR, JJ. Appellants (In Jail) Respondent Criminal Appeal No. 62^of2006 Arjun Yadav, S/o pamnarayan Yadav, aged about 20 years, R/o Chingrajpara, Amraiyya Chowk, Police Station Sarkanda, District Bilaspur (C.G.) Versus State of Chhattisgarh, Through : Police Station Sarkanda, District Bilaspur (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Present:- Mr. Rajneesh Kumar Shrivastava, counsel for the appellant. Ms. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Delivered on 18th November, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30.03.2006 passed by the Additional Sessions Judge, Bilaspur, in Sessions Trial No.211/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Punit Ram (since deceased) and causing injury by dangerous weapon to Shankar Lal convicted under Sections 302 and 324 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/-, R.l. for one year with usual default clause. 2. 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 an illegality. '"•!%., "arf"! ;A ^iB^i^, ^ !i% g •i' il. *1§ rf; •-.^......fy ,e° ^^ 3. As per the case of prosecution, on fateful day of 17.01.2005 at about 1.30 pm, appellant assaulted PW/10-Kailash Dewangan and PW/11- Shankar Lal Dewangan on account of demanding liquor then PW/11- Shankar Lal went to police station for lodging report, thereafter appellant quarreled with deceased Punit Ram, father of PW/10-Kailash and PW/11-Shankar. During the course of quarrel, he took out scissor from the barber shop of PW/1-Ramesh Shrivas and caused injury over the chest of deceased Punit Ram. PW/11-Shankar tried to save his father then appellant also assaulted him by scissor pver his back. PW/11- Shankar went to police station and lodge FIR vide Ex.P/11. Punit was sent for medical examination vide Ex.P/13 but before reaching to hospital he died. Information thereof was given by PW/8-Dr.Rajnikant Verma. Merg was recorded vide Ex.P/12. After summoning the witnesses vide Ex.P/16, inquest over the dead body of deceased was prepared vide Ex.P/17. Spot map was prepared vide Ex.P/14. Injured Shankar (PW/11) was sent for medical examination. Dr. V.K. Vaishnav (PW/9) examined injured vide Ex.P/9-A and found two incised wound over back and below shoulder joint with one abrasion over left scapular region. Dead body was sent for autopsy to CIMS, Bilaspur vide Ex.P/18. Dr. Rajnikant Verma (PW/8) conducted autopsy vide Ex.P/8 and found flowing injuries: 1. Stab wound over chest of 1.5cm x 1.5cm x Vzcm between 9 - 10 ribs. Intercostals came out from the injury. 2. Cut injury of 3cmx2cmx1 cm over lateral lobe of left lung. 3. Diaphragm was found cut. 4. Incised wound of 2.5cmx2cmx1 cm over liver. Mode of death was shock. 4. During the course of investigation, appellant was taken into custody. He made disclosure statement of scissors vide Ex.P/19, same was recovered at his instance vide Ex.P/20. Blood stained clothes of deceased was seized vide Ex.P/5. Seized articles were sent for chemical examination vide Ex.P/25. Presence of human blood over scissors seized from the appellant was confirmed vide Ex.P/27. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code') and after completion of ^'*t. f*.•ft 's s .^ .^ investigation.charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn committed the case to the Court of Sessions, Bilaspur, which learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 14 witnesses. Statement ofthe accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication in the crime in question is claimed. 7. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, Bilaspur convicted & sentenced the appellant as aforementioned. 8. Shri Rajneesh Kumar Shrivastava, counsel for the appellant and Smt. Madhunisha Singh, Panel Lawyer for the State are heard, perused the judgment impugned and record ofthe trial Couri:. 9. Learned counsel for the appellant vehemently argued that conviction is substantially based on evidence of eye witnesses PW/11-Shankar Lal Dewangan and PW/12-Ushabai, son and wife of deceased, but their evidence do not inspire confidence and trustworthy. There is exaggeration in theirstatement. There is inconsistency between medical and ocular evidence. He also submits that prosecution has utterly failed to prove the commission of offence and even as per the case of prosecution, incident took place on sudden provocation without premeditation and caused single injury over abdomen of deceased. Therefore, if the evidence of prosecution witnesses is considered in its face value then even act of the appellant does not travel beyond the scope of Section 304 Part-11 ofthe IPC. He also submits that appellant is in jail from 18.01 .2005 till today. 10.0n the other hand, learned Panel Lawyer for the State opposed the appeal and submits that appellant assaulted PW/10-, son of deceased, thereafter he quarreled and assaulted deceased by scissors over his abdomen resulted into his death shows grave intention of the appellant to commit murder of deceased Punit Ram. IBBB!»Bi 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12.1n the present case, homicidal death of deceased as a result of fatal injuries found over the vital part of deceased has not been substantially disputed on behalf of the appellant, on the other hand, also established by the evidence of Dr. Rajnikant Verma (PW/8) and autopsy report Ex.P/8 that the death ofdeceased was homicidal in nature. 13.As regards the injury caused by sharp edged weapon to PW/11-Shankar Lal is concerned, same has not been disputed by the appellant, on the other hand, also established by the evidence of PW/9-Dr.V.K. Vaishnav and medical report Ex.P/9A. 14.As regard to complicity ofappellant in the crime in question is concerned, conviction of the appellant is based on evidence of PW/11-Shankar Lal, PW/12-, son and wife of the deceased. As per their evidence, on account of quarrel with PW/10-Kailash, brother of PW/11-Shankar, appellant also quarreled with deceased Punit Ram and during the course of quarrel he took scissors from the barber shop of PW/1-Ramesh Shrivas and assaulted deceased over his abdomen and caused fatal injuries. PW/10-Kailash, son of deceased, deposed that appellant quarreled with him on account of demanding liquor and also assaulted him. PW/1-Ramesh Shrivas has deposed that appellant, deceased and family members of deceased were quarreling in front of his barber shop. Out of these, one person took out scissors, thereafter he heard that deceased Punit Ram has been murdered. He has not supported the case of prosecution and prosecution has declared him hostile. In para 5 of his cross-examination, he had admitted that appellant had came to his shop but he did not say whether appellant has taken scissors or not but the fact remains that out of two persons one has taken scissors from his shop. There is some dispute in the evidence of PW/11-Shankar and PW/10-Kailash but they have specifically deposed in their examination and in cross-examination that appellant has caused injury to deceased over his abdomen and internal parts. Further the evidence of these witnesses is also corroborated by the evidence of PW/8-Dr. Rajnikant Verma. Evidence of PW/10-Kailash, PW/11-Shankar Lal and PW/12- Usha Bai inspires confidence and trustworthy and same is safe to rely and sufficient to prove the fact that appellant has caused single blow by scissors overthe abdomen ofdeceased, resulting into his death. 15.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 ofthe body effected and other similar circumstances. 16.1n the present case, as per the case of prosecution, appellant was demanding liquor from PW/10-Kailash, son of deceased, and incident took placed between them, thereafter, appellant abused deceased. Being asked he quarreled with deceased and rushed to the barber shop of PW/1-Ramesh Shrivas from where he took out scissors and caused single blow over the abdomen of deceased. These facts and circumstances show that he was not having weapon, he was quarreling after consuming liquor and during the course quarrel he suddenly rushed to the barber shop of PW/1-Ramesh Shrivas and after taking scissors he caused single blow otherwise there was no occasion for causing injury. These evidences are not sufficient to establish the fact that appellant has caused injury or homicidal death with intent to cause death of deceased but at the time of causing such injury he was having knowledge that by his act deceased may die. Evidence adduced on behalf of prosecution is not sufficient to prove the fact that appellant has committed homicidal death amount to murder of deceased but the act attributed to the appellant squarely falls within the ambit of Section 304 Part-1 of the IPC. Evidence adduced on behalf of prosecution is also sufficient to prove the fact that appellant has caused simple injury by dangerous weapon to PW/11-ShankarLal. 17.After appreciating evidence available on record, learned Additional Sessions Judge has convicted the appellant under Sections 302 and 324 ofthel.P.C. IS.While convicting and sentencing appellant under Section 324 of the I.P.C., the Court below has not committed any illegality but while ^onvicting and sentencing appellant under Section 302 of the IPC Court Vijay below has not considered the circumstances in which incident took place and thereby committed an illegatity. 19.For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 324 of the IPC is hereby maintained. Conviction ofthe appellant under Section 302 ofthe I.P.C. js altered into Section 304 part-1 ofthe I.P.C. and sentenced to undergo R.l. for 8 years and to pay fine of Rs.500/-. ^ln default of payment of fine, further to undergo additional R.l. for one month. Both the sentences shall run concurrently. _. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge