•iS'- Raajit Singh @ Shankar Siagh Gond, @ Surjeet Singh @ Raiijit Sardar, aged about 27 years, son of late Shivchaian Gond, Occupation Helper ia Track, Resident of viUage LaiuRa, PoUce Station Pasaxi, District Korba (CG) State of Chhattisgarh Through The PoU.ee Station KofavaU., Korba, Disti-ict Korba (CG) PROCUDERE Sm.t. Hamida Siddique, couasel for the appellaiit. Smt. Madhu Nisha Singh, Paael Lawyer for the State. (25.02.2011) ChaUenge ia this appeal is to fhe judginent of conviction aiid order of sentence dated 31.8.2005, passed by fhe Sessions Judge Korba, District Korba (CG) in S.T.No.03/2005, Vthereby aad whereunder fhe learned Sessions Judge after holdiag the appellant guitty for conun.issioii ofculpable honiicide am.ountin.g to inurder of Ajit Srivas, convicted fhe appellaut under Section 302 of the IPC aiid sentenced for Itfe uiiprisoninent aad fine of Rs.1000/-, in default of payinent of fine to furfher luidergo R.I. for 6 inonfb.s. f^\ I "^Bli I 'H s '"^!^ ii 'Si '"9 S .'??' ct!»».fy j11 ^N>,. /T-' • 2. The convictiou is iinpugned on fhe ground fhatwifhout fhere being aiiy iota of evidence sufficient for convictioa of the appeUaiit, tlie leamed Sessions Judge has convicted and sentenced fbe appeUaat as aforesaid nientioned and fhereby com.iaitted illegaUty. 3. As per case of prosecution, on 16.8.2004, at about 9.00 am, appeUant was watchiag the vehicle of his owner aller road accident, at tL.at tune, Ajit Srivas (siace deceased) aud Kh'ubu Saura were passiiig besides such vehicle; they enquired about fhe accident fhen fhc appellant abused them fhat he is already puzzled on account of fhe accident and fhey are laakiag enqiiiry, deceased also abused fhe appeUant thea he took out one rod and caused mjuiy over the head of tlie deceased, resultmg tuto his instaataiieous deafh. He also chased Khubu Saura (PW-3),who Qed froni fhe spot. FIR was lodged by Subhash Siugh (PW-9) vide Ex. P/11 aad vide Ex. P/17 by T.R. Sahu (PW-10). The Investigatiag Ofiicer left for fhe scene of occurrence aud after suio.iaonm.g wituesses vide Ex. P/ 14, iaquest over fhe dead body of the deceased was prepared vide Ex. P/7. Plaia sofl. aad blood staitied soil was recovered iroin fhe spot vide Ex. P/ 13. Spot m.ap was prepared vide Ex.P/18. Dead body of fhe deceased was sent for autopsy to B.D.M. Oovt. Hospital, Champa vide Ex. P/ 15, where Dr. Hari Siugh (PW-8) conducted autopsy vide Ex. P/9 and found one lacerated wound of 2 x 1 ciu. on left orbit vrifh depressed fracture of left frontal aad parietal bone. Extra-dural aud sub- .dural baeiaatoiiia was also found. Mode of deafh was shock. Seized articles were sent for chemical examiuation and presence of blood over the rod was confinned vide Ex. P/20. Sealed clothes of ftie deceased were seized vide Ex. P/3. Patavari prepared spot m.ap vide Ex. P/ 12. Drivuig Ucence aud gamcha was seized vide Ex. P/4. Hairs of ftie head of fhe appeUaiit were seized froBi Ravi Kumar vide Ex. P/5. Durmg fhe course of in.vestigation accused was taken uito custody; he raade disclosure statement of rod vide 3 Ex. P/ 1; sam.e was recovered at the iustauce of appeUaat vide Ex. P/2. Stateinents ofthe witnesses we.re recorded under Section 161 ofthe Code ofCrimm.al Procedure, 1973 (iu short the Code). 4. After completiou of iavestigation, cliarge sheet was filed before fhe Chief Judicial Magistrate Korba, who ia tura, coininitted flie case to the Court of Sessions, Korba who coaducted fhe tnal. 5. In ori.er to prove the guUt of fhe accused/appeUant, prosecution exanuned as inany as 11 witnesses. Accused was examined under Section 313 of fhe Code, ia which, he denied fhe circuinstances appearing agaiast him, uinocence aad false iniplication ia criine in. question was claimed. 6. After affordtag opportunity of heariag to the parties, the leanaed Sessions Judge convicted aad sentenced the appeUant as aforesaid nientioned. Hamida Siddique, learaed counsel for .hu Nisha Sin.gh, leamed Panel Lawyer ^uient uapugned aud record of fhe 7. We have heard Sm.t. fhe appeUant aud Smt. for ttie State, perused ttie judj tnal Court. 8, Leamed counsel for the appellaat fraiikly argued fh.at as per case of prosecution and fhe evidence, especiaUy evidence of eye- witness PW-3- KIiubu Saura appeUant and fhe deceased were unkuowu to each ofher and fhere was no occasion for causias hoitlicidal death of fhe deceased. Evidence of Khubu Saura (PW-3) revealed that fh.e appellaat was puzzled on. accouiit of accident of his vehicle aitd when he was iaterrogated bv fhe deceased fhea on sudden provocation he caused siugle blow upon the head of fhe deceased resultuig into his deafh. The appellaiit has not caused aiiy tajuiy •svith iatent to cause ftie death of the deceased aud fhe appeUant is iu custody since 21.8.2004 for about 6 */2 years. ,.-":'K"'SIS^ ,. /c^ <%S*)d '\f^f^s^" ^ ^^ 118 iiSiB» m 9. On tiie other hand, leanaed couxisel for fhe State opposed these argum.ents aiid subiuitted fhat fhe appeUaiit an.d the deceased were not knowiag to eacll ofher, but fhe appeUaut has caused fatal iiyuiy to fhe deceased with intent to cause his deafh aiid the evidence adduced on behatf of fhe j^rosecution is sufficient to prove the offence. 10. Ia order to appreeiate fhe arguinents advanced on behatf of tiie parti.es, we have exainined fhe evidence adduced on behalf of fhe prosecution. 11. !n fhe present case, homicidal deafh as a result of fatal injury found over Uie vital part of tlie deceased Ajit Srivas has not been substaiitially disputed on behalf of fbie appellant, on fhe ofher haad, it is estabUshed by the evidence ofDr. Hari Siiigh (PW- 8) £m.d autopsy report Ex. P/9 aad deafh. of fhe deceased was honucidal iu nature. 12. As regards coiiiplicity ofth.e appeUant in crune ia question is concemed, conviction of tiie appeUaat is based ou fhe evidence of Khubu Saura (PW-3), as per his evidence, iie along wifh the deceased Ajit Srivas was going on a inotorcycle froiu Daaiakhawa to fhetr vitlage Lachhaiipur. They saw one truck stauduig on fhe road after fhe accident. AppeUaat was present fhere. Deceased Ajit Srivas asked him how the accident occurred then fbe appeUaat told fhat he is already puzzled on account ofthe accident aad you are inakiag enquiry and he abused fhe deceased, on which, the deceased also abused the appeUaiit. Suddenly, fh.e appeUant took out a rod and chased Ajit Srivas aad caused one injury over his head rcsiUtmg into his deafh. He deposed fhat the appeUaut also chased him fhen he fled froin fhe spot. a S^. f 't' . ^% 1 'N^!/ '•'s*BBBEaSii!""1 13. Defence has cross examiaed fhis witaesses at lengfh, but has not been able to iUicit auythiag ia his cross exaiaination to discredit his testimony. Evidence of Khubu Saura (PW-3) is weU corroborated by fhe FIR Ex. P/ 11 aild medical evidence. Evidence of this witness is sufficient to establish that the appeUailt has caused homicidal death of the deceased Ajit Srivas. 14. As regards niotive is couceraed, m.otive only aids in crunuiality, in case of direct evidence it losses its iuaportaace. Motive can be inferred on the basis of weapon used, part of fhe body effected, uature of iujur}r aud other sumlar circum.staaces. In the present case, fhere was no occasion for causiug uijuiy to thc deceased Ajit Srivas by ttte appellan.t. Evidence of Khubu Saura (PW-3) that after tlie accident, fh.e appellaiit was present near fhe vehicle and wheu he was interrogated by the deceased then on accouat of provocation he has caused siagle blow. In fhese circum.staiices, act of fhe appeUaitt does not travel beyond fhe scope of Sectioa 304 Part I! of the IPC. While couvictiag and sentencirig fhe appeUant under Section 302 of tbe IPC, Court below has not considered tbe aforesaid circuinstances, ia which, appeUant has caused hoiuicidal deafh of the unknown person without aay cause and intention aud fhereby coiiunitted iUegalily. 15. For Qie. foregouig reasons, fhe appeal is parfly aUowed. Conviction and sentence of tfae appeUaiit under Section 302 of ftie IPC is altered into Section 304 Part II of the IPC aild he is sentenced for imprisoiunent for 6 years and 6 inonths i.e. for fhe period ah-eady undergone froni 21.8.2004 tiU today. He be released forfhwifh, ifnot required ia aay ofher case. l'\ Sd/- T.P. Sharma Judge sunita Sd/- R.L. Jhanwar Judge