HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. ‘13P. SHARMA & HON’BLE‘MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL No. 693/2005 A§§ELLANT Kariman Singh S/o Balam Singu, (IN JAIL) aged about 45 years, agriculturist, R/o village Senduri, RS. Ramanju Nagar, Distxict Surguja (C.G.). V VERSUS , RESPONDENT State of Chhattisgarh through S.H.O. RS. Ramanuj Nagar, District Surguja (C‘G.). , A ; APPEAL UNDER SECTION 374(2) OF CRIMINAL PROCEDURE i ‘ CODE. I i Present:—Mr. J.K. Shasui, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. l ORAL-JUDGEMENT L (Passed on 25I02/2011) \\ _r The following judgment of the Court was passed by T.P. Sharma, J:- ‘ l 1. Challenge in this appeal is to the judgment of ‘ ‘ ,1 conviction and order of sentence dated 22/8/2005 k passed by Second Additional Sessions Judge, Surajpur ;\ V‘ ‘x District Surguja in Sessions Trial No. 518/2004 whereby and where under after holding the appellant i l guilty for the commission of offence of culpable homicide amounting to murder of Sukhdev and causing I simple injury by axe to Shivdhari, convicted the appellant under Sections 302 & 324 of the Indian Penal l Code and sentenced imprisonment for life 8r. flne of Rs, 1000/ —, in default of payment of fine amount additional rigorous imprisdnment for 1 year and rigorous imprisonment for 2. years. 2. Conviction is impugied on the ground that without any ota Of evidence suiEcient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 17/4/2004 at about 6:00 RM. Sukhdev (since deceased) went to house of appellant for demanding liquor from the wife of appellant namely Sumitra, at the ime of demanding liquor from Sumitra Le. wife of appellant by deceased appellant .came and caused repeated assault upon Sukhdev and caused his instantaneously death. Wife of appellant i.e. ‘Sumitra fled from her house and took shelter in the house of PW7 Shivdhari. Appellant went inside his roorn and bolted the door from inside. Villagers gathered on the spot they watching the dead body lying in the house of appellant and also to appellant who was present inside the room after closing the door h‘om inside. They also locked the door from out side. PW? Shivdhari was also present to watch the appellant, On second day at i t morning time. appellant came out &om the room after removing the tiles of roof and assaulted PW7 Shivdhari by axe and tried to fled from the spot. Villagers chased him, they caught hold the appellant. PWI Kanwal Sai recorded marg intimation vide EX. P-12 and First Information Report was lodged vide Ex. P- 1. After summoning the witnesses vide Ex. P—2, inquest over the dead body of deceased Sukhdev was prepared vide Ex. P—3. Blood stained & plain soil were recovered from the spot and underwear of accused seized n'om his instance vide Ex. P-6. Spot map was prepared vide Ex. P-14. Dead bOdy of Sukhdev was sent for autopsy to Community Health Center, Ramanujnagar vide Ex. P- 15. PW 13 Dr. Anand Kopse conducted autopsy vide Ex. P-20 and fOLmd following injuries:- (i) Lacerated wound of 1" x V2” x V2” over forehead. (ii) Lacerated wound of 2” x 1" X V2” over left side of forehead. (iii) Lacerated wound of %” circle X 3” deep just side of left eye. (iv) Incised wound of 3 la” x Va” over back side of head. (v) Incised wound of 4” x 2" x 4" over back. (vi) Incised wound of 3” x 1" x 2" over back. Incised wound of 2" x 4" over back. Injuries were ante-mortem in nature. .. . Mode of death was shock and death was hom1c1da1 1n nature Durmg course of mvestigation, accused/appellant was taken into custody and he made discloser statement of axe vide Ex. P4, same was recovered at his instance vide EX. P—S. Patwari also prepared spot map vide Ex‘ P—7. Axe was examined by PW5 Dr. Deep Kumar vide Ex. P~ 10. PW5 Dr. Deep Kumar also examined injured Shivdhari vide Ex. P—9 and found one incised wound of 7 c.m. x 3 c.m. x 2 c.m. over left hand. Sealed articles were sent for chemical examination vide Ex. P— 1’7. Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion. of the investigation charge sheet was filed before the Judicial Magistrate First Class, Surajpur who in tum committed the case to the Court of Sessions, Ambikapur from where learned Second Additional Sessions Judge, Surajpur received the case on transfer for trial. In order to prove the guilt of the appellant prosecution examined as many as 13 witnesses Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is I claimed. After aEording an opportunity of hearing to the partias learned Second Additional Sessions Judge, Surajpur District Surguja has convicted and sentenced the appellant as aforementioned. Mr. J.K. Shastri, learned counsel for the appellant and Mr. Sandeep Yadav, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that prosecution has not examined the material witnesses to unfold the real story. Evidence adduced on behalf of the prosecution is not sufficient for drawing an inference that only appellant has caused homicidal death of Sukhdev even as per case of the prosecution, dead body of Sukhdev was found in the house of appellant. As per case, deceased was present in the house of appellant with the wife of appellant then appellant has assaulted Sukhdev, he was confined by the villagers in his room for whole night. On second day at morning anyhow he came out n‘om his house, his wife was hiding in the house of Shivdhari, appellant has caused injury also to Shivdhari. These facts shows that appellant has not caused homicidal death of Sukhdev with intent to cause his death but he has caused injury to Sukhdev on spur of moment and on sudden provocation when he saw Sukhdev with his wife in his house at evening time, he has also caused injury to Shjvdhari who had gven shelter to his wife. It shows that appellant has caused injury to Shivdhari also on sudden provocation therefore, if the act of appellant is considered in the light of evidence adduced on behalf of the prosecution then even the act of appellant does not traveled beyond the scope of Section 304 Part—II of the Indian Penal Code. On the other hand, learned counsel for the respondent/State opposed the appeal and argued that prosecution has adduced evidence sufficient for conviction of the appellant. Evidence of witnesses clearly reveal that deceased Sukhdev came to the house of appellant for demanding liquor, wife of appellant use to sell liquor, at the time of purchasing liquor present appellant has caused repeated fatal injury to Sukhdev resulting into his instantaneous death, Villagers were watshing the dead body of Sukhdev and appellant who was present inside the room. On second day morning appellant came out dom the roof and has caused injury by axe to Shivdhari shows his grave intention for causing death of Sukhdev and causing injury to Shivdhari while convicting and sentencing the appellant Court below has not committed illegality. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. In the preSent case, homicidal death ae a result of fatal injury found over the body of deceased Sukhdev has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW 13 Dr. Anand Kopse and autopsy report Ex. P-20 and death of Sukhdev was homicidal in natur€. 13. As regard the complicity of appellant in crime in question, as per case of the prosecution, wife of appellant Sumitra has witnessed the evidence but prosecution has not examined her. Another Witness PW 11 Smt. Shanti Bai, Wife of deceased Sukhdev has deposed in her evidence that on the date of incident at about 5:00 RM. she along with her husband Le. deceased Sukhdev were going to the house of Dasru for attending marriage, while they were passing beside the house of appellant her husband Sukhdev went inside the house of appellant for demanding drinking water, he demanded liquor horn the wife of appellant i.e. Sumin‘a at the same time appellant came ham back side and assaulted Sukhdev i.e. her husband by axe, Sukhdev fell down and died, she shouted and rushed from the house of appellant and narrated the incident to other persons then they ca to the house of me appellant where they saw the injured dead body of Sukhdev. As per evidence of PW7 Shivdhari, he wa informed by s his wife that appellant has broken the door of his house and has committed murder of Sukhdev, wife of appellant was hiding herself in his house. He also - deposed that he along with other persons wen to the t ; house of appellant for watching the dead body of Sukhdev, appellant was present inside his room, on second day morning, he came out from the roof and assaulted him by axe. PWI Kanwal Sai son of deceased Sukhdev, PW2 Parsuram, PW3 Nawal Sai & PW4 Smt. Suhano Bai have also substantially corroborated the evidence of PW7 Shivdhari. Shivdhari was examined by V PW5 Dr. Deep Kumar vide EX. P—9 and found one incised wound of ‘7 c.m. x 3 c.m. x 2 c.m. over his left hand. Defence has cross—examined these witnesses at length but has not been able to illicit anything in their cross-examination to discredit their testimony to the extent that appellant has not caused homicidal death of Sukhdev and has not caused injury by sharp edged weapon to Shivdhari. Evidence of aforesaid witnesses inspire contidence and trustworthy and are sumcient to establish the aforesaid facts. As regard the motive for commission of offence is concerned, motive is only aid in criminality and loses its importance. tn case of direct evidence, even otherwise motive can be inferred on the basis of nature of injury, part of the body where injuly was caused, weapon used and other like Circumstances. As per initial case of prosecution and specially the evidence of PWll Smt. Shanti Bai (wife of deceased Sukhdev), Sukhdev i.e. her huSband went inside the house of appellant for demanding drinking water, wife of appellant was present inside her house, Sukhdev wished her and by addressing “Didz” he demanded liquor, at the same time appellant came h‘om back side and caused repeated injury to Sukhdev resulting into his death. Wife of appellant i.e. Sumitra rushed from her house and took shelter in the house of PW7 Shivdhari, on second day appellant also assaulted smvdhaxi although appellant has not taken any specific defence relating to commission of mischief or offence by deceased Sukhdev but the circumstances in which appellant has caused injury to deceased Sukhdev and also to PW7 Shivdhari in whose house wife of appellant has taken shelter shows that appellant was provoked by the act of deceased Sukhdev and his wife Sunlitra even as per evidence of PWI 1 Smt. Shanti Bai, wife of deceased, deceased told her that he is going to the house of appellant for demanding water for drinking, he addressed wife of appellant as “Didi” i.e. sister but instead of demanding water appellant demanded liquor from the wife of appellant, at the same time incident took place. It shows that by some act of deceased Sukhdev and wife of appellant, present appellant annoyed and provoked and has caused injury to deceased Sukhdev on second day he has also assaulted person who has given shelter to his wife shows the annoyance of appellant also towards his wife. 17. Evidence adduced on behalf of the pmsecmion is not sufficient to establish the fact that appellant has caused homicidal death of Sukhdev with intent to cause his death but at the time of causing repeated 7 injuries by axe he was having knowledge that by his act Sukhdev may die, at the time of incident deceased Sukhdev was not having any weapon, he was helplessness. Appellant has by taking benent of his helplessness caused injury to Sukhdev and has also caused injury by sharp edged weapon to Shivdhari. The act of appellant does not falls within the ambit of Section 304 Part-II of the Indian Penal Code but squarely falls Within the ambit of Section 304 Part-I of the Indian Penal Code and under Section 324 of the Indian Penal Code. 18. While convicting the appellant under Section 302 of the Indian Penal Code Court below has not considered the aforesaid circumstances in which appellant has caused homicidal death of Sukhdev and thereby committed an illegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellant under Section 324 of the Indian Penal Code is hereby maintained. Conviction and sentence of the appellant under Section 302 of the Indian Penal Code is altered into Section 304 Part-I of the Indian Penal Code and considering the 7 injuries, sentenced to rigorous imprisonment for 10 years. Present appellant is in custody since 19/4/ 2004, he is entitled for set—Gd for the aforesaid period of detention. 4._ Sd/- R.L. Jhanwar w 'T‘P. SHARMA- L Judge Judge