HIGH COURT OF CHHATTISGAKHAT BILASPUR Criminal Aooeal No.1002 /2003 IC ' :;;;E;:i''i^siis-^* APPELLANT (Injail) Durgesh atias Dactor Dui^a son of Deep Sin.gh Kauwar aged 3 l years, resident of viUage Sendan Pali Navadih MohaUa, P.S, Kartaka District Korba (CG) VERSUS RESPONDBNT State Chhattisgarh Through Police Station Kartala District Korba (CG) CRIMINAL^APPEfl^UNDER SBCTION^74J 2±OFTHECODE OF CRIMINAL PROCEDURE Shri U.K.S. Chandel, cozmsel for the appeUaat. Shri Qam.arul Aziz, Panel Lawyer for the State. Division Beach:- HoaLbIeSIuiT.P. Sharma .Bs Hon'ble Shri R.L.Jhaawar.JJ Per T.P.Sharma, J. ORAL JUDGMEHT (10.02.2010) 1. Chalienge iu this appeal is to the judgment of conviction and order of sentence dated 04ttl June, 2003, passed by the Second Additional Sessions Judge (FTC), Korba ia Sessions Trial No. 191/2002, whereby aad whereunder the learued Additional Sessions Judge after holdiag fhe appeUaat guilly for commission of culpable honiicide, amounting to iniirder of MaagluTaia, convicted fhe appeUaut ilnder Section 302 of fb.e IPC aad to pay a fine of Rs.300/-, iu default of payment of fine to further undergo R.I. fhree inonths. te; ssss^ y W 4? •li2^<(".^1 'l:.^^' •EyfwWW ^s-^N-3 2. The judgiuent impugned is chaUenged on the grouad that wifhout any iota of evidence, fhe leamed Coiirt below has convicted aad sentenced fhe appeUaut as aforeiuentioned aad tiiereby coituaitted illegaUty. ^f- 3. Prosecution case ia Urief is fhat on the fateful day of 11.3.2002, at about 8.00 p.in., fhe appellant was nioviag wifh aa axe ui viilage Sendripaii, District Korba aud while the deceased Mangluram was goiag towards the appeUaat, the appeUaat assaulted hini wifh the axe over his head. The deceased feU do\vn. Mangluiam was taken to hospital. Bab-am. (FW-1) went to Police Station and lodged F.I.R. vide Ex. P/1. During fhe course of treatment Maugluram died on 16.3.2002 at about 6.15 a.m. IntimaUon of the iucident was given by Modem Medical Institute Raipur vide Ex. P/5. During the course of treatraent, the deceased died. The deafh was iatimated by fhe Doctor of Modem Medical Institute, Raipur to Police Station, Tikrapara, Raipur vide Ex. P/6. Merg was also recorded. Registered FIR was recorded vide Ex. P/23. After suiaiiionmg witaesses vide Ex. P/9, inquest over the dead body was prepared vide Ex. P/10. The dead body was sent for autopsy to Medical CoUege Hospital, Raipur vide Ex.P/18. Autopsy was conducted by Dr. S.K. Dadu (PW-21) vide Ex. P/28 aud foimd one stitched wound over upper part of right side of the ear of 30 cm aud fracture of skuU boue aud death was hoinicidal ia nature. Spot inap was prepared vide Ex. P/2 by the Patwari. The appeUant was taken iato custody. He inade disclosure statement of axe vide Ex. P/ 12. The axe was recovered at thc instaace of the accused/appeUant vide Ex.P/13. Plain soil, blood stained soil and one gamchhawas seized vide Ex. P/14. FuU Paat offhe appeUant was seized vide Ex. P/15. The Invest^atmg Officer prepared spot iaap vide ex. P/ . Duriag the course of treatment, iajured- '"^SijtSii. il '^y '^ f9sy. Maagluram was exainined by Dr. B. P. Paadey (PW-19) vide Ex. P/25 aad fouud one iacised wound of 2 1/21' x 1 cin x brain iiiatter deep. Brain inatter was visible aad fracture of bone was suspected over frontal region. Seized articles were sent for cheuucal exainiaation aad presence of blood was confirmed over fhe axe and clofhes ofthe appeUaat vide Ex. P/7. Statements of fhe witnesses were recorded uader Section 161 of the Code of Crimiual Procedure, 1973 (in short "Code"). 4. After coiupletion of iavestigation, chai^e sheet was filed before fhe Judicial Magistrate First Class, Korba, who in tum, coiaiaitted fhe case to the Court of Sessions, Bilaspur, fiTQiu where fhe learaed Second Additional Sessions Judge received fhe case on transfer for trial. 5. Iu order to prove fhe guitt of fhe accused/appeBant, prosecution has exaniined as inauy as 21 witnesses. The accuscd was examined under Section 313 ofthe Code, ia wbich, he deiiied the circum.stances appearing against him aud pleaded innocence aad false unpUcation. 6. After afl'ording opportunily of hearing to the parties, fhe learued Additional Sessions Judge has convicted and senteuced ihe appeUaat as aforeiiientioned, 7. We have heard Shri U.K.S.Chandel, leamed counsel for the appeUaat and Shri Qamarul Aziz, leamed Paael Lawyer for the State, perused fhe judgnient aud record ofthe trial Court. 8. Learaed couiisel for tiie appeUaut veheinently argued that ia the light of evidence of Balram (PW-1), Piritram (PW-2), Vikram Prasad (PW-3), Rambai (PW-7) aud Bisahuram (PW-11), he is uot disputiag fhe fact that fhe appeUant has not caused iajuiy over the head of the deceased aad the deceased has not died as a result of Ss. :wvt;-:i^'.''i aate niortem. iujury. He farther argued that the evideace adduced on behalf of the prosecution clearly reveals fbat fhe appeUaat bas not caused iajury to the deceased with uitent to cause his death; fherefore, fhe act of fhe appeUaat does not travel beyond fhe scope ofSection 304 PartII offhe IPC. •'i 9. On. the other han.d;'leamed counsel for the State opposed these arguinente aad subihitted' fhat fh.e appeUarit was bolding axe aud has caused iryury over the head of ftie deceased which shows his grave iiitention of causiug niiirder of the deceased and prosecution has proved its case beyond reasoaable doubt, 10. Iti order to appreciate fhe arguinents advaaced on behalf of the parties, we have examined fhe eviden.ee adduced on behalf of the urosecution. 11. In fhe present case, hoaucidal deafh of the deceased- Mangluram. as a result ante luortem. fatal mjury bas not been substautially disputed by fbie accused/appeUant. Oa the other haad, it is established by the evidence of Dr. S.K.Dadu (PW-21) aad autopsy report Ex.P/28, evidence of Dr. B.P.Pandey (PW-19) aad niedical report Ex. P/ 25 aud death was bpmicidal in nature. 12. As regards coniplicity of the accused/appeUant in crime in question is concerued, evidence ofBatram (PW-l), Piritrain (PW-2), Rambai (PW-7) wife offhe deceased aad Bisahuram (PW-ll), who have seen fhe incident, revealed fhat the accused/appeUant was mioviag with axe axid when the deceased caine near the appeUant fhen the appellant assaulted hi'm by the axe over his head. Tbe factum of causing iajuiy by the appeUaiit to tfae deceased by axe is not chaUengcd ui fhe cross cxaminatinn of fhose witnesses and it is suf&cient for drawing aa inference fhat fhe appeUant bas caused fatal iajuiy to fhe deceased. li sSSi. Si -:^-' 13, As regards fhe question ofinotive is concemed, niotive only aids in. criiniaatity, iu case of direct evidence it loses its importaace. Motive caa.be inferred on the basis of natuie of injury, number of iajury, weapon used aud ofher surular circuinstances. ^ "*•' :'aSS|SS2Ss! ^VWSSS, 14. Admittedly, ia the present case, relations between the appeUaat aad fhe deceased were cordial aad fhere was no reason wifh. fhe appeBant for causing niurder of the deceased. Evidence of Rambai (PW-7) wife of the deceased revealed that brofher of the appeBaat cam.e to deceased aad told fhat his biofher i.e. fhe appellant is iaovio.g wifh. aa axe aad he has consumed liquor aad he icquested fhe deceased to advice fhe appellaut then the deceased weat with brofher of the appeUaat, where the appellant was moving axe. The appeUaat assaulted fhe dcceased and caused one injuiy over the head of tfae deceased aud thereafter, fled away. He has not caused repeated iajuiy. There was no previous eiunity between tlie deceased aud the appeUant. The deceased hiuiself had gone to fhe appeUant. This fact shows fhat fhe appellant has not caused auy injury wifh iatent to cause death or murder of the deceased. However, at the tiine of causing injury witb the axe, he was haviag knowledge that he niay cause deatb by his axe, fherefore, the act ofthe accused/appeUant does not travel beyond the scope ofSection 304 Part II offhe IPC. 15. After appreciation of fhe evidence available on record, fhe learaed Second Additional Sessions Judge has convicted aad sentenced the appeUaat under Section 302 ofthe IPC, but has aot considered fh.e inaterial aspect of fhe case that fhe appeUaat has caused siagle iajury wifh.out aay intention and ftiereby coinnutted illegaUly, 16. On close scrutiny of the evidence, we are of fhe considered view that the conviction 6f the appeUant under Sections 302 of the IPC is not sustamable uader law. '&:. •^s's's 17. In view of the above, the appeal is partly allowed. The conviction of fhe appellaat under Section 302 IPC is altered iuto Section 304 Part II of the 1PC aad sentenced for imprisonBient for custodial period i.e. from 12.3.2002 tiU today. He be released forthwith, if not required iu. any other case. sunir-a. Sd/- T.P. Sharoia Judge Sd/- R.L. Jhanwar Judge