^ k HIGH COURT OFCHHATTISGARH. BILASPUR Criminal Appeal No.532 of 2005 APPELLANTS/: (Accused) (InJail) RESPONDENT/: (Prosecution) 1. Gorelal aged 26 years, S/o Ram Sai 2. Puniram @ Bujanu aged 19 years S/o Ram Sai 3. Babu Lal aged 27 years, S/o Amaru Dhanuhar 4. Dadu Lal Dhanuhar aged 20 years S/o Amaru All R/o village Sothi, P.S. Champa, Distt. Janjgir-Champa (C.G.) Versus State of Chhattisgarh through S.H.O. Champa, Distt. Janjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) ofCr.P.C.} Present: Mr. R.K. Jain, counsel fbr appellant No.1. Mr. H.V. Sharma,counsel for appellants No.2 to 4. Mr Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. DivisionBench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar. JJ ORALJUDGMENT (1-2-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 12-5-2005 passed by the Additional Sessions Judge, Janjgir; Sessions Division Bilaspur, in Sessions TrialNo. 197/2004, whereby &whereunderleamed Additional Sessions Judge after holding the appellantsguilty for commissionof culpable homicide amounting to murder of Gautam Gir in sharing common intention and causingsimple injuryto Suraj Gir insharing common intention, convicted appellantNo.1 under Sections 302 & 323 read with Section 34 of the IPC and sentenced him to undergo imprisonment for life &pay fine of Rs.500/-, in /.. /;;- default of payment of fine to further undergo Rl for two monthsand to undergo Rl for six months, respectively. Learned Additional Sessions Judge also convicted app^llants No.2 to 4 under Sections 302 read with Section 34 & 323 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fineof Rs.500/-, in default of payment of fineto further undergo Rl for two months and to undergo Rl forsixmonths, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality, 3. Asper case of theprosecution, on the fateful night of 6-3-2004 between 9 and 11 p.m. injured witness Suraj Gir (PW-8) & Gautam Gir (since deceased) were going to Tiwari Deepa for singing song of Holi, the appellants herein who were holding stick & axe met them on the way near the house of appellant No.1 Gorelal, the appellants interrogated injured Suraj Gir (PW-8) & deceased Gautam Gir and objected for going to Tiwari Deepa for singing Holi song. Thereafter, the appellants assaulted Gautam Gir by axe& stick and caused fatal injuries. Gautam Girfell down. Suraj Gir (PW-8) shouted for help and intervened on which the appellants assaulted him also. Thereafter, Rajugir Goswami (PW-1), Laxmjn Bai (PW-4) & Bodhin Bai (PW-5)came and saw the incident. Appellant No.1 Gorelal came with cot and took injured Gautam Gi.r in his house where GautamGir died. At about 5a.m. on second day, appellant No.1 Gorelalwenttothepolicestationand lodged roznamcha vide Ex.P- 16 that Gautam Gir is sleeping in his house and he has consumed liquor in excess quantity. Police came to the village where Suraj Gir (PW-8) lodged dehati nalsi Ex.P-12andon the basis ofdehati nalsi, FIR Ex.P-22 was registered. Dehati merg was also recorded vide Ex.P-12. After summoning the witnesses vide Ex.P-1, inquest over the dead body ofthe deceased was prepared vide Ex. P-2. Spot map was prepared by the Investigating Officer vide Ex.P-14. Injured Suraj Gir (PW-8) was sent for medical examination, he was examinedby Dr. Kashi Prasad Rathore (PW-13) vide Ex.P-15 and three swellings over right hand, left elbowjoint & back were found on his person. Dead body of GautamGir was sent for autopsy toGovernment Hospital, Champa vide Ex.P-20. Dr. Kashi Prasad Rathore (PW-13) conducted autopsy vide Ex.P-SOand found following injuries: - .c c. (1)lncised woundoverfronto parietal region of3" x 1 c.m. x bone deep with fractureof fronto parietal bone. (2)Swelling over right side of head, heirs were stained with blood. Mode of death was shock and death was homicidal in nature. Numbered merg was recorded vide Ex.P-21. Dyring the course of investigation, appellant Gorelal was tak^n intocustody, he made discloser statement of axe vide Ex.P-3 and same was recovered at his instancevide Ex.P-4. Appellant Puniram @ Bujanu made discloser statement of stick vide Ex.P-5 and same was recovered at his instance vide Ex.P-6. Appellant Dadulal made discloser statement of stick vide Ex.P-7 and same was recovered at his instance vide Ex.P-8(A). Appellant Babulal made discloser statement of stick vide Ex.P-8 and same was recovered at his instance vide Ex.P-9. Sealed clothes of the deceased were seized vide Ex.P-17. Patwari prepared spot map vide Ex.P-18. 4. Statements of the witnesses were recorded under Section 161 ofthe CrPC. Seized articles were sent for chemical examination and presence of blood was confirmed over axeand sticks recovered from the accused persons. 5. Aftercompletion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Janjgir who committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case ontransfer fortrial. 6. ln order to prove the guilt of the accused, the prosecution has examined as many as fifteen witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing againstthem, pleaded innocence and false implication in the crimein question. 7-After affording opportunity of hearing to the parties,learned Additional Sessions Judge, convicted & sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Mr. R.K. Jain & Mr. H.V.'Sharma, learned counsel for the appellants, vehemently argued that in the present case convictionof the appellants is substantially based on the evidence of Suraj Gir (PW-8) — injured '(;. € witness. In case of injured witness, his presence cannot be doubted, but only on the ground that he was present on the spot, his evidence cannot be accepted as a gospel truth, his evidence requires minute scrutiny. Suraj Gir (PW-8) is relative witness, his evidence is not reliable, it is not trustworthy and same cannot be made basis for conviction that too under Section 302 read with Section 34 of the IPC. Learned counsel further argued that as per statements of Rajugir Goswami (PW-1), Laxmin Bai (PW-4) & Bodhin Bai (PW-5) - relativesof thedeceased, recorded under Section 161 of the CrPC, they have not seen the jncident and they are not eyewitnesse.s, but they have stated before the Court that they have seen the incident. This shows that they are interested witnessesand have deposed only to implicate the appellants in the crime in question. 10.Mr. R.K. Jain, learned counsel for appellant No.1, furtherargued that appellant No.1 has lodged report Ex.P-16 in which he himself has informed the police that on accountof excess drinking of liquor, Gautam Gir is unconscious andsleeping in his house. This showsthat appellant No.1 has informed the police bona fidely and he has notcommitted any offence. Even otherwise, ifevidence of the prosecution isconsidered, appellant No.1 has taken injured Gautam Gir, who was unconscious and was alive, to his house. This shows that appellant No.1 has not committed culpable homicide amounting to murder of Gautam Gir even after having sufficient opportunity for killing Gautam Gir, especially when injured/unconscious Gautam Gir was sleeping/lyingin his house, where no other person to help Gautam Gir was present. Therefore, jf evidence of the prosecution is considered in its face value, the act of appellant No.1 does not travel beyond the scope of Section 304 Part-l of the IPC. Mr. R.K. Jain placedreliance in the matterof Baijnath v. State ofUttar Pradesh1 in which the Supreme Court has held that considering the nature of injury (sihgle injury) and weapon used, the act attributed to the appellantdoes not travel beyond the scope of Section 304 Part-1 ofthe IPC and custodialsentence of seven years' imprisonment issufficient. 11.Mr.H.V. Sharma, learned counsel for appellants No.2 to 4, also submits that the incident took place in two parts, firstly on account of some trifle dispute of Holi song appellant No.1 Gorelal caused injury by axe to Gautam Gir and as a result of such injury, ultimately Gautam Gir died, thereafter, all the appellants havecaused simply injuries to Suraj Gir 1(2008)3SCC(Cri)940 c'; (PW-8). At the timeof causing such injury by axe by appellant Nq.1 Gorelal,appellants No.2 to 4 were having knowledge that appellant No.1 Gorelalwill cause fatal injury to Gautam Gir. Evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appellant No.1 Gorelal has committed the aforesaid offence in sharing common intention with appellants No.2 to 4 and in absence of such evidence, conviction pf appellants No.2 to 4 for causing any injury resulting in death of Gautam Gir is not sustainable under the law. Mr. H.V. Sharma placed reliance in the matter of Jadu Yadav and bthers v. State of Bihar2 in which the Supreme Court has held that in absence of injury by the weapon whioh the appellants have used, conviction of the, appellants with the help of Section 34 or 149 of the IPC is not sustainable under the law. Mr. H.V. Sharma further placed reliance in the matter of Babubhai Ranchodbhai Patel and another v. State of Gujarat in which the Supreme Court has held that fatal injury caused by one accused on sudden quarrel by knife, other accused who have not used knife are not liable for commission of such offence. 12.0n the other hand, learned State counsel opposes the appealand submits that all appellants have opposed the deceased & Suraj Gir for their visit to Tiwari Deepa ,for singing song and thereafter, all appellants who were holding stick & axe have caused injuries toGautam Gir& Suraj Gir. Therefore, all appellants are liable for commission of offence in sharing common intention. This is not the case where the appellants have caused injuryon sudden quarrel or on the spur of the moment, but they were waiting for personswith preparation and they werearmed with deadly weapons. 13.1norderto appreciatethearguments advanced on behalfofthe parties, we have examined the evidence adduced on behalfofthe prosecution. 14.1n the present case, homicjdal death ofdeceased Gautam Giras a result offatal injuries found over hisbody hasnot been substantially disputed on behalf of the appellants, otherwise also itis established by the evidence of Dr. Kashi Prasad Rathore(PW-13) and autopsy repo.rt Ex.P- 30 that death of Gautam Gir is homicidal in nature. Evidence of Dr. Kashi Prasad Rathore (PW-13) and medicalexamination report Ex.P-15 2AIR1994SC957 3AIR1994SC1400 are also sufficient for drawing inference that simple injuries have been caused to witness Suraj Gir (PW-8). 15.As regards complicity of the appellants in the crime in question, conviction of the appellants is substantially basedon the evidence of Suraj Gir (PW-8)-injuredeyewitness,who has deposed in hisevidence that at the time of incident he along withGautam Girwas going to Tiwari Deepa for singing song of Holi, they were stopped by theappellantswho were holding stick & axe which they were keeping beside the road, thereafter, the appellants took out stick & axe and assaulted Gautam Gjr, when itwas objected by him, the appellants assaulted him also on which he fled away and shouted for help. After hearing his sound, his son Raju, Saroop Bai, wife of the deceased namely LaxminBai and mother- in-law ofthe deceased namely Bodhin Bai came and they had also seen the incident. He has further deposed that at the time of incident he was injured and, therefore, he had not gone to the police statipn for lodging report, but he intimated to Sarpanch through one Munna and pn secpnd day when police came to his village he lodged dehati nalsi Ex.P-12. Defence has cross-examined this witness at length, especially relating to time. He has specifically admitted in para 9 of hiscross-examination that the incident took place at about 9 p.m. and not at about 11 p.m. Althoygh Ex.P-12 dehati nalsi reveals that the incident took place at about 11 p.m., but Ex.P-'j2 clearly revealsthat Suraj Gir (PW-8) was going to Tiwari Deepa for singing Holi song atabout 9 p.m. and atthat time the incident took place. Entire documents and evidence reveal that the incident took place atabout 9 p.m.andthe deceased diedatabout 11 p.m.. There is no contradiction relating time. Evidenceof thiswitness is corroborated bythe evidence of Rajugir Goswami (PW-1), Laxmin Bai (PW-4) -wifeofthedeceased&BodhinBai (PW-5) - mother-in-law of the deceased. Although as pertheir statements recorded underSection 161 ofthe CrPC, they have not seen the incident, but after hearing the sound they came to thespotwhere they saw the injured body of Gautam Gir. Definitely, they are relativewitnesses and their evidence can be, relied to the extent that after hearing the sound of Suraj Gir they came to the spot where they saw the injured body of Gautam Gir and the appellants, but they have not seen theactual assault. 16.Evidence of Suraj Gir (PW-8) clearly reveals thatall appellants were presenton the spot, theywere keeping stick & axe beside the road, they ^'•M^:^^ ) l. ^%/ ' f%^../ "-1'^^^'1 objected him & Gautam Gir for their visit to Tiwari Deepa for singing son of Holi and when this witness & Gautam Gir tried to go to Tiwari Deepa, they took the weapons and assaulted Gautam Gir& Suraj Gir. As per autopsy report, one incised wound over head and swelling were found on the person of the deceased which shows that two injuries have been ( • ••' '••: ' ' '.'• ^. • caused to the deceased and three injuries have been caused to Suraj Gir (PW-8). 17.As regards the injuries found over the body ofthe deceased, injuryNo.1 has beencaused by axe which has been used byappellant No.1 Gorelal and injury No.2 swelling may be caused by blunt weapon which other appellants were hQlding. InjuriesGaused to SurajGir (PW-8) were also by blunt weapon. Evidence of Suraj Gir (PW-8) is sufficient for drawing inference that all appellants were present on the spot, they have stopped and obstructed this witness & deceased Gautam Gir for their visit to Tiwari Deepa and when these two persons tried to go to Tiwari Deepa, the appellants took out the weapons and assaulted them. This shows their CQmmon intention forcausing injuries to deceased Gautam Gir and injured Suraj Gir. 18.As held bythe Supreme Court in the matter of Jadu Yadav (supra), this is not thecase where the deceased & the injured witness have not receivedany injury by the weapon which otherappellants were having, interalia both the personshave received injuries by blunt weapon. The case of Jadu Yadav (supra) is distinguishable on facts to that of the presentcase. ' 19.In the present case, firstly the deceased & the injured were objected by theappellants and when they tried to go to Tiwari Deepa for singing song of Holi, theappellants took out the weapons and caused injuries to the deceased & injured witness Suraj Gir (PW-8) which shows that all appellants have caused injurieswith intentto cause the same and this is riot the case where out of more persons only one person has substantially caused single injury by single dangerous weapon. Therefore, the case of Babubhai (supra) is also distinguishable on facts to thatof the present case., 20.Evidence of Suraj Gir (PW-8) substantially corroborated by the evidence of Rajugir Goswami (PW-1), Laxmin Bai (PW-4) & Bodhin Bai (PW-5) is sufficient for drawing inference that the appellants have caused injuries andhomicidal death of Gautam Gir and also injuries to Suraj Gir in sharing common intention. 21.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, natureof injury and other similar circumstances. 22.As held by the Supreme Qourt in the matter of Baijnath (supra), in case of one injury andoneweapon used, conviction under Section 302 of the IPC is not sustainable and act of the appellantfalls underSection 304 Part-lofthelPC. 23.But in the present case, as per initial case of the prosecution and evidence adduced on behalf of the prosecution before the Gourt, the appellants have caused injury to Gautam Gir, when Gautam Gir became unconscious, the unconscious body of Gautam Gir was taken by appellant No.1 Gorelai inside hisroom where the dead body of Gautam Gir was found lying on the cot. Even at the time of inquest conducted vide Ex.P-2, these facts clearly reveal that at the time of causing such injury GautamGir was alive, but he was unconscious and he was taken by appellant No.1 Gorelal inside his house where ultimately, Gautam Gir died as a result of injuries found over head and not as a result of subsequent injury. 24. Definitely, appellant No.1 Gorelal and other appellants were having full opportunity to kill Gautam Gir on the spot or after taking himin their custody, especially inside the room of appellant No.1 Gorelal, but they have not caused any subsequent injury to Gautam Gir. The incidenttook place on the ground of visit to Tiwari Deepa for singing song of Holi and there was no previous enmity or cause for causing such injuries. Aforesaidcjrcumstances clearly establish that appellant No.1 Gorelal has notcaused injury to Gautam Gir with intent to cause his death, but has caused injury on trifle matter and on sudden quarrel without any premeditation and even inspite ofhaving opportunityto kitt Gautam Gir, appellant No.1 has not killed Gautam Gir instantaneously. However, at the time of causing such fatal injury by axe, the appellants were having knowledge by their act, the deceased may die. Therefore, the act attributed to the appellants does not travel beyond the scope of Sections 304 Part-1 read with Section 34 & 323 read withSection 34 ofthe IPC. Soma 25.While convicting the appellants under Section 302 of the 1PC, the trial Court has not considered the aforesaid circumstances and thereby committed illegality. 26.Consequently, the appealis partlyallowed. Convictionof appellant No.1 Gorelal under Section 302 of the IPC as also conviction of appellants No.2 to 4 under Section 302 read with Section 34 of the IPC are altered to Section304 Part-1 read with Section 34 of thelPC. Considering nature of injuries and weapons used, the appellants are hereby sentenced to undergo Rl for eight years. However, conviction & sentence of appellants under Section 323 read with Section 34 ofthe IPC are hereby maintained. Appellant No.1 is incustody since 8-3-2004 and appellants No.2 to 4 are on bail. Appellants No.2 to 4 shall immediately surrender before the trial Court for serving remaining sentence. The appellanfs shall be entitled for set off for the period already undergone by them. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge .- -c