IGH COURT OF CHHATTISGARH BILASPUR @ Teju Ram, S/o Thakur Ram Majhi, aged about 56 years, Occupation Agriculture, R/o Village Narmadapur (Khalpara), Police Station Kamleshwarpur, Distt. Surguja (C.G.) Versus State of Chhattisgarh, Through Police Station Kamleshwarpur. {Appeal under Section 374 (2) of the Code of Criminal Procedure} Criminal Ag&al No.77 of 2005 APPELLANT: (In Jaii) RESPONDENT: r Present: MIL. Avinash K. Mishra, counsel for the appellant. "u . Mr. U.K. Singh Chandel, Panel Lawyer for the State/respondent. Division gench: - ‘ Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. JhanWar JJ ORAL JUDGMENT (4-7-201 1) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-1-2005 passed by the Sessions Judge, Ambikapur in Sessions Trial No.414/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his relative i.e. wife of younger brother namely Mangli Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life. ‘ 2. Conviction is impugned on the ground that without‘any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 13—7-2004 the appellant assaulted Mangli Bai (since deceased) by heavy wooden plank ’(geda) over her head and caused her instantaneous death. After committing death, the appellant was fleeing from the spot which was seen by Smt Tilmati Bai (PW-4) — daughter—in-law of the deceased who narrated the InCIdent to others Finally, Sanjho Ram (PW-3) husband of the deceased i e brother of the appellant has lodged FIR Vide Ex P 2 H ‘ ® and merg vide Ex.P-3. The Investigating Officer Ieft for the scene of occurrence and after. summoning the witnesses vide EXP-13, prepared induestAover the dead body of the deceased ‘vide EXP-14. Spot map was prepared by the Investigating Officer vide EXP—15. Blood stained and plain soil were recovered from the spot vide Ex.P-5. Dead body was sent for autopsy‘ to Community Health Centre, Narmadapur vide ExiP-16. Dr. R.S. Singh (PW-8) conducted autopsy vide EXP-8 and, found following injuries: — (1) Contusion with swelling of 9 c.m. x 6 c.m. on head at left temporal 'region 5 c.m. above left'ear, (2)Contusion 4 c.m. x 3 cm. above left eye with bluish black discoloration». (3): Depressed fracture of left temporal bone ‘of 6 c.m. x 5 c.m. Mode of death‘was coma and death was homicidal in nature. During the course of investigation, the accused was taken into custody, he made discloser statement of heavy wooden plank geda which he has concealed on roof of verandah of the deceased vide EXP—6 and same was recovered at the instance of the appellant from his house vide Ex.P— 7. . Statements of the witnesses were recorded under Section 161 of the a CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, AmbikapUr where trial of the case was conducted. . ln order to prove the guilt of the accused/appellant, the prosecution ha examined as many as fourteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. i’After affording opportunity of hearing to the parties, learned Sessions Judge, convicted and sentenced the appellant as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on evidence of Smt. Tilmati Bai (PW- s . § 4) whose evidence does not inspire confidence and is not trustworthy, even she has not seen the incident, her evidence is speculative and not safe to rely. Even othenrvise, she has specifically admitted in para 5 of her evidence that the appellant has entered in her kitchen garden for —>stealin9vegetables and when he saw her, after jumping from the wall, he was running from the spot. This shows that the appellant has not caused injuries, but has entered in the house of kitchen garden of this witness for stealing vegetables and, therefore, he may be accused for commission of theft of vegetables, but not for commission of murder. Learned counsel further argued that even if evidence of Smt. Tilmati Bai (PW-4) is considered as true, in the light of evidence of Dr. R.S. Singh (PW-8) it reveals that both the injuries have been caused by single blow. Thenefore, the act of the appellant does not travel beyond the scope of Section 30‘4 Part—lof the IPC. . On the other hand, learned State counsel Opposed the appeal and ’ submitted that evidence of Smt. Tilmati Bai (PW-4) inspires confidence and is trustworthy, and is sufficient for drawing definite conclusion that the appellant has caused aforesaid injuries to the deceased. 1n rder to appreciate th rents vanced on behalf of t partes, w ha amined the evidence adduced on behlf of th proscun. 1.n thpent cas, hoil dath of decease angli i rlt of fatal injuries foun over her body has not been stial dispud o blf of the allant, even otherwise, it is establish by vince . . Singh — d tsy reportEx.P-8, tha deat ded omicil n nat 12.A regards coicity of e appellant in he crime in uto, conviction of the pllant is subantially base evidence of Smt. Tilmi Ba (PW-4) as des in evience that after olectin getaes whn h w retrn t hus th the aelant mpe om te wa afer aulg tn-aw and d escp m s in y o la g he en ” insi r house wh the dd bod of er moth-in-law was found, as cloe fro rot ide an she nred nce her p In p 3 of exmat she has t oth-ina f k d e e t 0.l o e agum ad he i e ve ex a e etio 1l e‘res e mcida e d M Ba as a esu d ubsantly te n eha ppe ed ede of Dr R.S (PW8) an auop ‘ t h of the ' eceas was hda i ure. s mpl th t qesin ape st d on at i who h poed her d clg vebl e se as uing o her oe, she saw at ppl jud fr h stone ll t ssatin her moher-il trie to ae fro the pot, he was holdg heav woden pnk eda, s wt de he ere ea y h er the gate w sd m fn s d arat the iidnt to ot ersons. ara her cross-ainion, admitted tha her mer-lw was in the habit o drining an evn at th ime of ncident'also she Was un drkn state. In para 4 of her evidence i der une she has specifiéaHy deposed that the appellant has caused injuries to her mother-in—law, though in para 5 she has deposed that the appellant has entered in her kitchen garden for stealing vegetables and when he saw her, after jumping from the wall he was running from the spot. Her evidence is Well corroborated by the promptly'lodged FIR Ex.P-2 and merg Ex.P—3 which have been lodged at the instance of this witness. W‘JVJ: -::; 13LThe appellant is elder brother—in-law of the deceased and both were residing in same premises. Door of the house was closed from outside. The appellant was jumping from backside of the house from wall and he was having hea“vy wooden plank geda. injured dead body of mother-in— law of Smt. Tilmati Bai (PW-4) ‘was lying in her house. These are undisputable circumstances/facts and are sufficient for drawing inference that the appellant was the person who has caused aforesaid injuries to the deceased. ‘ The factum of entry of the appellant for stealing vegetables has not been even admitted by the appellant in his statement recorded under section 313 of the CrPC and the appellant has not taken rvvsuch defence. This evidence is sufficient to connect the appellant with the crime in question and is also sufficient to establish the fact that the appellant has caused homicidal death of the deceased. t? 14.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. 15.As per evidence of Smt. Tilmati Bai (PW-4), there was no motive for the _’ appellant for causing such injuries to the deceased. The deceased was relative of the appellant. The prosecution hasnot addUced any material to show that by causing death of the deceased; what benefit the appellant would get. This shows that on account of drinking liquor or under the state 'of drinking liquor, the appellant has caused such injuries and homicidal death. Evidence of Dr. R.S. Singh (PW—8.), autopsy report Ex.P—8 and the aforesaid injuries reveal that the said injuries might have .Jbeen caused by single blow. Both the injuries were found on left part of face and head of the deceased. Virtually ‘both' the injuries were adjoining. This shows that the appellant has caused injury not with intent wto cause death, but at the time of causing injuries he was having \ sufficient knowledge that by such act and using forc n h heavy wooden plank, the deceased may die. 16.Evidence adduced on behalf of the prosecution is sufficient to draw inference that the appellant has not committed homicidal death of the deceased with intent to cause his death and that his act does not travel beyond the scope of Section 304 Part-l of the IPC. While convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life, the trial Court has not considered the aforesaid , a ~ —.r materiaLaspect of the case and thereby committed illegality. 17.For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the'IPC is altered to Section 304 Part l of the IPC and the appellant Is hereby sentenced to undergo Rl for seven years The appellant is in custody smce 14 7 2004 He is entitled for set off for the aforesaid period of detention as per law x // t ”WA SN- R.L. .‘ihanwa Sd/_ t " l T. P. Sharma Judge t