k. c ^ ^^. HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANTS: (InJail) RESPONDENT: Criminal Appeal No.747 of 2005 1. Pardeshi @ Boya Gond, S/o Chotu Ram Gond, age 29 years, R/o Nakna, Police Station Sitapur, Distt. Surguja (C.G.) 2. Shyam Bai @ Marhi W/o Choturam Gond, age 25 years, R/o Vilage Nakna, Police Station Sitapur, Distt. Surguja (C.G.) Versus State of Chhattisgarh, Through Police Station Sitapur, Distt. Surguja (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. Abhay Tiwari with Mr. Rajnish Shrivastava, counsel for the appellants. Mr. Sanjeev Kumar Agrawal, Panel Lawyer for the State/respondent. Division Bench^- Hon'ble Mr.T.P. Sharma and Hon'bIeMr. R.L. Jhanwar. JJ ORALJUDGMENT (17-2-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 27-4-2005 passed by the 3rd Additional Sessions Judge (FTC), Ambikapur in Sessions Trial No.61/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Baliram and causing simpleinjuries to Dhaneshwari & Bhagwatia, convicted the appellants underSection 302 ofthe IPC and sentenced them to undergo imprisonment for life & pay fine of Rs.1,000/- each, in default of payment of fine to further undergo Rl for six months. Learned Additional Sessions Judge also convicted appellant No.1 Pardeshi under Section 323 of the IPC and appellant No.2 Shyam Bai under Section 323 read with Section 34 ofthe IPC and sentenced each ofthem to undergo Rl for six months. ^l. c ^ 2. Conviction is impugned on the ground that without any jota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, on the fateful dayof 14-12-2004 at about 5 p.m, on account of grazing of crop of the appellants by cattle of Baliram (since deceased), the appellants assaulted daughter of Baliram namely Dhaneshwari by stick, Dhaneshwari shou^ for help on which Baliram & Bhagwatia (PW-2) - wife of Baliram (injured) reached to the spot. Appellant Pardeshi snatched axe from the hands of Baliram and assaulted him resulting in his instantaneous death. Pardeshi also assaulted Bhagwatia (PW-2). Jaishri (PW-1) went to the police station and lodged FIR vide Ex.P-1 on second day at Police Station Sitapur which is 20 kms. away from the place of incident. Merg was also recorded vide Ex.P-2. The Investigating Officer left for the scene of occurrence and aftersummoning the witnesses vide Ex.P-10, prepared inquest over the dead body of the deceased vide Ex.P-7. Bloodstained soil,plain soil, one bed sheet, pair of plastic shoes, pair of chappal and one bamboo stick were recovered from the spot vide Ex.P-4. Spot map was prepared vide Ex.P-11. Dead body was sent for autopsy to Community Health Centre, Sitapur vide Ex.P-12. Dr. S.K. Agrawal (PW- 8) conducted autopsy vide Ex.P-18 and found following injuries: - (l)Abrasionsover right elbow, right wrist, left shoulder up to nipple and left hand. (2) Contusionsover left scapular region, left nipple, left hand, near left eye and occipital region. (3) Fracture offrontai bone and occipital bone. Mode of death was shock and death was homicidal in nature. During the course of investigation, accused Pardeshi was takeninto custody, he made discloser statement of axevide Ex. P-3 and same was recovered at his instance vide Ex. P-6. Bloodstained bush shirt was also seized from appellant Pardeshi vide Ex.P-5. Patwari prepared spot map vide Ex.P-8. Panchnama of spot was prepared vide Ex. P-14. Sealedclothes of the deceased wereseized vide Ex.P-15. 4. Statements of the witiiesses were recorded under Section 161 of the CrPC. After completion of investigation,charge sheet was filed against the appellants before the Court of Judicial Magistrate First Class, (^ r^. ^ Ambikapur who committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined asmany as eight witnesses. Theaccused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. Afteraffording opportunity of hearing to the parties, learnedAdditional Sesstons Judge, v"eohvietedu 1<-& ' "sentenced" the appetlahts as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and recordofthe trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case, as per case of the prosecution the incident took placein the kitchen garden of the appellants at the time of grazing of their crop by cattle of the deceased and when the appellants objected, daughter of the deceased i.e. Dhaneshwari (PW-3) called her mother & father i.e. Bhagwatia (PW-2) & de6eas;ed Baliram; respectively, who:came with axe & stick, they tried to assault the appellantswhereupon in exercise of the rightof private defence of person and property, after snatching stick from Bhagwatia (PW-2) appellant Pardeshi has caused injury to Baliram. The appellantshave caused injury in exercise of the right of private defence ofperson and property, they'havehot exceeded their right and no fatal injury Was found over body of deceased Baliram. As per case of the prosecution, appellant Pardeshi was having axe, but he has not used the sharp part of axe for causingsuch jnjury which reveals that the appellants have not caused homicidal death of Baliram with infent to cause his'death ahd have'causedThjury drTsudden quarrel ih exercise of rightof private defence; 9. On the other hand,learned Statecounsel opposed the appeal and submitted that firstly on the ground of grazing of crop by cattle of deceased Baliram,^ the a^peljants assaulted 13 years' aged minor daughter of deceased Baliram namely Dhaneshwari (PW-3) by stick, when she fell down and shouted for help, deceased Baliram & Bhagwatia ^ (PW-2) rushed to the spot, they were holding stick & axe to save their VC: CrlU-^Q .^. ^•^^ ^ ^y- '(.; ^ daughter, but appellant Pardeshi snatched weapon from Baliram and assaulted Baliram resulting in his instantaneous death. This shows that the appellants have intentionally caused death of Baliram, they were not having any right of exercising private defence when they themselves have assaulted minor daughter of Baliram namely Dhaneshwari (PW-3). 10.1n order to appreciate the arguments advanced on behalf of the parties, we haveexamined the evidenceadduced on behalfofthe prosecution. 11.1n the present case, homicidal death of deceased Baliram as a result of fatal injuries found all over his body has not been substantially disputed on behalf of the appellants, otherwise also, it is established by the evrderice'of Dr7"SX.~Agrawal'~CPWJ8yarid autbpsy report Ex.P-18 that death ofBaliram was homicidal in nature. Evidence of Bhagwatia (PW- 2) & Dhaneshwari (PW-3) is also sufficient for drawing inference that simple injuries have beencaused to them. 12.As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence cf Bhagwatia (PW-2) & Dhaneshwari (PW-3). 13. Dhaneshwari (PW-3) is child witness. After satisfying itself relating to the fact that whether the child witness understands her duty to speak truth and'is ina positio'nto atisWerthe'questions put 16 her ratiohally, the trial Court has examined this witness. Dhaneshwari (PW-3) has deposed in her evidence that while she was coming back to her house with cattle after grazing grass bycattle, the cattle entered in kitchen garden of the appellants, while ousting the cattle by the appellants, both the appellants abused her and assaulted her by stick, she fell down and shouted for help on which her mother & father reached to the spot, her father was holding axe, appellant Pardeshi snatched axe from her father and assaulted her father resulting in his death. Her evidence is well supported by evidence of her mother Bhagwatia (PW-2) - wife of deceased Baliram. •t'-'"Vr-l( i'a(-k'0^<'-"<"<.'" 14.Defence has cross-examined these witnesses at length and tried to show that the appellants have caused injuries in exerciseof the right of private defence which these witnesses have denied and clearly deposed that qrstly,the.appellan1t^^ay^,a^ia4^ shouted for help, Bhagwatia (PW-2) & deceased Baliram rushed to the spot, Baliram was having axe to save his daughter Dhaneshwari (PW-3). %1 i .IJ Appellant Pardeshi snatched axe from Baliram and caused injury to Baliram resulting inhis death. 15.Evidence of aforesaid witnesses inspire confidence, their evidence is trustworthy and safe to rely and also sufficient for drawing inference that appellant Pardeshihas caused homicidal death of Baliram and both the appellants have caused simple injuries to Dhaneshwari (PW-3) & Bhagwatia (PW-2). 16.As regardsthe question of motive, motive only aids in criminality andin case ofdirect evidence it loses its importance. Motive can be inferred on the basisof the weapon used, part ofthe body effected, nature of injury and other similar circumstances. 17.1h the present case, as per evidence of the prosecution, therewas no previous enmity between the appellants and the deceased. When Dhaneshwari (PW-3) - 13 years' aged girl, was coming back to her house along with her cattle, the cattle entered in vegetable garden of the appellants on which both the appellants annoyed and abused her, they have tried to oust the cattle and considering the act of reluctancy of Dhaneshwari (PW-3) inousting the cattle, the appellants assaulted her by stick and caused simple injury on which she shouted for help whereupon her mother & father reached to the spot, her father Baliram (since d.eceased) was holding axenot to cause injury to the appellants, but to save her daughter. Appellant Pardeshi snatched axe from Baliram and caused injuries to him. While causing injuries to Baliram, appellant Pardeshi has not used sharp edged portion ofthe axe. All injuries found overbody of Baliram were cbntusions and abrasions caused by blunt part of weapon which shows that the appellant has taken proper precaution while causing injuries. This shows that the appellant has not caused injuries to Baliram with intent tocause death but has caused such injuries on sudden provocation and on sudden quarrel when his crop wasgrazed by the cattle of deceased Baliram. In these circumstances, all of a sudden causing ihjuries is not unnatural. Injuries fbund over body of Baliram were abrasions and contusions, no lacerated wound or incised wound or stab wound was found over body of deceased Baliram. 18.The aforesaidcircumstances are sufficient for drawing inference thatact of the appellants does nottravel beyond the scope ofSection 304 Part-11 ..^;^..n^' !^. ' '.-... ^'•'^.; ,.;1. :.^^":' I Soma ^ ^A: of the IPC. While convicting the appellants under Section 302 of the IPC, the trial Court has notconsidered the circumstances, nature of injuries, part ofweapon used, and thereby committed illegality. 19-For the foregoing reasons, the appeal is partly allowed. While maintaining conviction & sentence imposed upon the appellants under Sections 323 &323 read with Section 34 of thelPC, conviction of the appellants under Section 302ofthe IPC is altered to Section 304 Part-11 of the IPC. Instead of sentence of imprisonment for life, the appellants aresentenced to imprisonment for the period already undergone by them. Appellant No.1 Pardeshi isin custody since 16-12-2004 till date fpr about 6 years one month. He be released forthwithjf not required in any other case. Appellant No.2 Shyam Bai was in custody from 16-12- 2004 at least till 30-4-2009. She need not surrender before the Court to herbail bondsand herbail bondsstand discharged.. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ..L. .-.. a^. u-^