B / sss""~:a APPELLANT: (InJail) HIGH COURT OFCHHATTISGARH. BILASPUR Criminal Appeal No.540 of 2005 Rambaran @ Ghuran S/o Bhaiya Lal Khairwar, aged about 21 years, Labourer, R/o Village Charcha, Shivpur, P.S. Baikunthpur, District Korea (C.G.) RESPONDENT: APPELLANTS/: (Accused)/ (Convicts in jail) Versus State of Chhattisgarh Through S.H.O., P.S. Baikunthpur, Distt. Korea (C.G.) AND Criminal ApDealNo.542 of 2005. 1. Devidayal @ Chandra S/o Bandhan Unraw, aged about 24 years, occupation Driver 2. Laxman S/o Bandhan Unraw, aged about 31 years.occupation Labour. Both R/o village Characha (Shivpur) P.S. Baikunthpur, District Korea (C.G.) Versus RESPONDENT/: State of Chhattisgarh Through Station House Officer, PoliceStation Baikunthpur, District Korea (C.G.) (Prosecution) {Criminal appeals underSection 374 ofCriminal Procedure Code} Present: Mrs, Meena Shastri, counsel for the appellant in Cr.A.No.540/2005. Mr. VishnuKoshta, counselfor the appellants in CrA.No.542/2005. Mr. S.R.J. Jaiswal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble IVIr.T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (21-1-2011) T.P.Sharma, J: - 1. Since the aforesaid two criminalappeals are arising outof the same judgment of conviction & order of sentence dated 21-6-2005 passed by .1,-!.* '^.1*;£^? the Additional Sessions Judge, Baikunthpur, in Sessions Trial No.498/2004, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction& order of sentence dated 21-6-2005 passed by the Additional Sessions Judge, Baikunthpur, in Sessions Trial No.498/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amountingto murder of Butan and sharing common intention.convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.1,000/- each.in default of payment offine to further undergo Rl for six months. 3. Cohviction is impugned on the ground that without any iotaof evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution, on the fateful day of 29-9-2004 at about 9 p.m. the appellantsalong with another accused person chased Butan (since deceased) and assaulted him in his vegetable garden, thereafter they dragged him from vegetable garden and again assaulted hjm, and as a result of such injuries Butan died at about 12 mid night. On second day FIR was lodged by Raj Kumari (PW-3) vide Ex.P-14and merg was recorded vide Ex.P-15. Finally, numbered FIR was registered vide Ex.P- 13. The Investigating Officerleft for the scene of occurrence and after summoning the witnesses vide Ex.P-7, prepared inquest over the dead body of the deceased vide Ex.P-8. Dead body was sent for autopsy to Assistant Surgeon, Goverhment Hospital, Baikunthpur. Dr. S.K. Gupta (PW-5) conducted autopsy vide Ex.P-1 1 and found following injuries: - (1) Six contusions over back and left thigh of 11 c.m. x 2 c.m. to 21 c.m.x3 c.m.. , ; (2) Abrasion over right knee of 2 c.m. x 2 c.m.. (3) Abrasion over left kneeof 2 c.m. x 2 c.m.. (4) Abrasion over left leg of 2 c.m. x 1 c.m.. (5) Abrasion over right buttock of3c.m. x2 c.m.. (6) Internal haematomaofSc.m. x 3 c.m. in subdural region. (7) Mode of death was coma. 5. During the course of investigation, accused/appellant Devidayal was taken into custody, he made discloserstatement of stick vide Ex.P-1 and ^ same was recovered at his instance vide Ex.P-2. Accused/appellant Laxman was taken into custody, he made discloser statement of stick vide Ex.P-3 and same was recovered at his instance vide Ex.P-4. Accused/appellant Rambaran was also taken into custody, he made discloser stafement of stick vide Ex.P-5 and same was recovered at his instance vide Ex.P-6. Documents were seized from Raj Kumari vide Ex.P-9. Patwari prepared spot map vide Ex.P-10. The Investigating Officer also prepared spotmap vide Ex.P-16. 6. Statements of the witnesses were recorded under Section 161 of the 1 .^ . . ^, CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Baikunthpur who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer fortrial. 7. Inorder to prove the guilt of the accused, the prosecution has examined as many as ten witnesses. The accused were examined under Section 313 ofthe CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 8. After affording opportunityof hearing to the parties, learned Additional Sessions Judge while acquitting accused Rama, convicted & sentenced the appellants as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 10.Mrs. Meena Shastri & Mr. Vishnu Koshta, learned counsel for the appellants, vehemently argued that in the light of evidence of Raj Kumari (PW-3) -wife ofthe deceased, child witnesses Babu Singh (PW-6)& Sanjay Kumar (PW-7) - sonsofthe deeeased, they are not dispyting the fact that the appellants have caused injuries to the deceased, but they submit that the appellants have not caused any injury w1th intent to cause death of Butan. Learned counsel further submit that after consuming liquorwhen deceased Butan was abusing lady members of the family of the appellants, the appellants resisted and only with a view to teach him lesson, they have causedsome simple injuries to the deceased. No injury was found fatal and the appellants have npt caused injuries over head ofthe deceased resulting in his death. 11.0n the other hand, learned State counsel opposes the appeals and submits that the appeltants have caused homicidal death ofthe deceased with intent to cause his death. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants. 12.1norder to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13.1n the present case, homicidal death of deceased Butan as a result of injuries found over head has not been substantially disputed on behalfof the appellants, otherwise also it is established by the evidenceof Dr. S.K. Gupta (PW-5) and autopsy report Ex.P-11 that death of Butan is homicidal in nature. 14.Although the appellants have notdisputed the fact that they have caused injuries to Butan, but same is also established by the evidenee of Raj Kumari (PW-3), child witnesses Babu Singh (PW-6) & Sanjay Kumar (PW-7). This evidence is sufficient to establish the fact that the appellants have caused homicidal death ofthe deceased. 15.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 16.1n the present case, as perevidence of Raj Kumari (PW-3), the appellants have assaulted her husband at 4 p.m., thereafter they again assaulted at9 p.m. and then theydragged him in the village and caused repeated injuries. As per autopsy repori:, subduralhaematoma was found on head of the deceased in the size of 6 c.m. x 3 c.m.. Other injuries found over the person of the deceased are simple in natu'rei and they are not even on vital parts of the body. Thissupports case of defence that the appellants have not caused any fatal injury over vital part of body of the deceased, but while causing multiple injuries, they were having knowledge that by their act, the deceased may die. Circumstances in which the appellants have caused injuries and nature of injuries reveal that they have not caused any injury with intent to cause death of the deceased. The act attributed to the appellants in sharing common intention does not travel beyond the scope of Section 304Part-llofthelPC. Soma 17.While convicting & sentencing the appellants, thetrial Court has not considered the aforesaid aspects of the case, circumstances and nature ofinjuries, and therebycommitted illegality. 18.Consequently, both the appeals are partly allowed. Convictionof the appellants under Section 302 read with Section 34 of the IPC is altered to Section 304 Part-11 read with Section 34 of the IPC. Considering number and nature of injuries, the appellants are hereby sentenced to undergo Rl forseven years & pay fine pf Rs.1,000/- each, in default of payment of fine to further undergo Rl for six flionths. They are in custody since 1-10-2004. They are entitled forset off for the period alrea^y undergone by them. =a^=- Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge