IGH COURT OF CHHATTISGARH AT BILASPU DIVISION BENCH CORAM: HON’BLE MR. '1‘.P. SHARMA & HON’BLE MR. MANINDRA MOI-IAN SHRIVASTAVA, JJ. CRIMINAL APPEAL N0. 439/2005 APPELLANT In Jail Maytru Yadav S/o Gokul Yadav, Aged 48 Yrs, R/o Village Kurud, P/S O.P. Siliyari, P.S. Dharsiwa, u f Distt. Raipur (C.G.). ‘ _ VERsUS State of Chhattisgarh THROUGH:- Police Station :- Dharsiwa, Distt. Raipur (C.G.)‘ ) OF THE CODE OF CRIMINAL PROCEDURE - ‘ RESPONDENT A APPEAL U/S 374 [2 OF 1973: Presenth Shri Prakash ’I‘iwari, Advocate for the appellant. Shri Arun Sao, G.A. for the State/respondent. ORAL-JUDGEMENT r (Passed on 03] 12/2010) ollowing judgment of the Court was passed by :- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 24/3/2005 passed by Sessions Judge Raipur (C.G.) in Sessions Trial No. 306/2004 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of hantanu Sahu convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 1000/3 in default payment of fme amount additional rigorous iprisonment for 1 month. m Conviction is impugied on the ground that without any iota of evidence sufficient for conviction of appellant H R The f T.P. Sharma, J S v of 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 22/6/2004 between 7.30 to 8.00 A.M., at morning deceased Shantanu Sahu was digg‘ng the fleld (Government land) for plantation of Mango plant appellant who was residing near by the iield came to the spot and resisted 'deceased Shantanu Sahu for “such plantation. Some altercation took place thereafter, appellant used filthy language and after giving threat to him took out crowbar lying in the land and caused- iepeated “assault upon his head. He fell down and became unconscious. Wife of deceased Shantanu Sahu PWI Smt. Amn't Sahu and PW2 Deo Narayan child witness were present on the spot, wife of the deceased took injured Shantanu Sahu to Police Station Dharsiwa and lodged First Information Report vide Ex. P— 1. Injured was immediately sent for medical assistance to Primary Health Center, Siliyari. He was examined by PW5 Dr. D.R. Verma vide Ex. P-8 and found one injury over the head, blood was coming out, his condition was serious. He was referred to Medical Collage, Raipur. During course of treatment at Medical Collage, Raipur Shantanu Sahu died on 22/6/2004 at about 1.20 P.M. Marg was intimated to Police Station, Modhapara vide Ex. P—l 1. Police Station, Modhapara recorded Marg vide Ex. P— 17 and on the basis of Ex. P— 17 Marg was recorded vide Ex. P—18 by Dharsiwa Police. After summoning the witnesses vide Ex. P~12, inquest over the dead body of Shantanu Sahu was prepared vide Ex. P—13. Dead body was sent for autopsy to Dr. B.R. Ambedkar Hospital, Raipur vide Ex. P— 19. PW6 Dr. S.P. Garg conducted autopsy vide Ex. P-8 and found following injuries:— Stitched wound over left region of the head of7x2x2c.m. (ii) Stitched Wound of 4.5 c.m. in length 85 4.2 c m over right parietal region (iii) Sutched wound over left paneto occ1p1tal reglon of5 5 c m m length (iv) Sutched wound over mght parieto—occipital reg’on of 4 c.m. X 5 c.m. (v) Stitched wound over right side of the head of 3 c.m. in length. (vi) Stitched wound over back of the head of 0.3 c.m. in length. Depth of aforesaid injuries were up to bone deep. V i' (vii) Lacerated wound of 5 x 2 X 1 c.m. over left side of chin. (viii) Left ear was badly lacerated. 3(ix) Ahgasion over base of nose 0.5 x 0.5 c.m. (x) Lacerated wound over lower lip of 0.4 c.m. (xi) Echymosis present over both side of neck and chest. (xii) Abrasion of 3 x 0.2 c.m. over left shoulder. (xiii) Abrasion of 1 x 0.2 c.m. over left shoulder. (xiv) Contusion over left shoulder of 4 x 2.5 c.1n (xv) Abrasion over right knee of 0.3 x 0.3 c.m. (xvi) Abrasion over right toe of 1 x 0.3 c.m. (xvii) Right parieto-occipital bone was found fractured. Mode of death was shock anddeath was homicidal in nature. During course of investigation, spot map was prepared vide Ex. P—2. Patwari also prepared spot map vide Ex. P-3. Blood stained and plain soil were recovered hem the spot vide Ex. P—4. Crowbar and hairs of the deceased were seized from the spot vide Ex. P-5. Blood stained cloths of appellant was seized vide Ex. P—6. Sealed cloths of deceased after autopsy were seized vide Ex. P—7. Sealed articles were sent for chemical examination vide Ex. P— 15. 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, Raipur who in tum committed the case to the Court of Sessions, Raipur. In order to prove the guilt of the appellant/accused prosecution examined as many as 16 witnesses. Accused/appellant was examined under Section 313 of the Code Where he denied the circumstances appearing against him, innocency and false implication is claimed. 7. After anording an opportunity of hearing to the parties learned Sessions Judge, Raipur convicted and sentenced the appellant as aforementioned. 8. Mr. Prakash Tiwari, learned counsel for the appellant and Mr. Arun Sao, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that in the light of evidence of PW1 Smt. Amrit Sahu‘ wife of deceased and PW2 Deo Narayan child witness, he is not disputing the fact that appellant has caused injury by crowbar upon the head of deceased Shantanu s‘ahu. He is also not disputing homicidal death of Shantanu Sahu. Learned counsel for the appellant further submits that as per evidence of PWI Smt. Amrit » . Sahu & PW2 Deo Narayan, some altercation took place between appellant and deceased Shantanu Sahu and also with wife of appellant when deceased Shantanu Sahu pushed the wife of appellant and when she fell down then wife of appellant namely Khedin Bai assaulted deceased Shantanu Sahu by stick and has caused multiple injuries therefore, on sudden provocation with a view to save his wife appellant‘has caused single blow of crowbar which was lying near the place of incident. If the evidence of aforesaid prosecution witnesses are believed then even the act of appellant does not travel beyond the scope of under Section 304 Part-II of the Indian Penal Code. On the other hand, learned Government Advocate for the respondent/State opposed the appeal and submits that present appellant has caused fatal and dangerous injuries by using dangerous weapon crowbar and has caused homicidal death of deceased Shantanu Sahu. After appreciating the evidence available on record learned Sessions Judge, Raipur has rightly convicted and sentenced the appellant as aforementioned. In order to apprec1ate the argument advanced on behalf of the parties, we have examined the ev1dence adduced on behalf of the prosecution. $In the present case, homicidal death as a result of fatal injury found over the vital part of the deceased has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW5 Dr. D.R. Verma and medical report vide Ex. P—8 (report of Dr. S.P. Garg and autopsy report has been marked as Ex. P—S) which reveal that fatal injury was found over the head of the deceased and death was homicidal in nature. As regard the complicity of the appellant in crime in question, present appellant has also not disputed the fact that he has caused injury by crowbar to Shantanu Sahu, which resulted into death of Shantanu Sahu. Evidence of PW1 Smt. Amrit Sahu 83 PW2 Deo Narayan, child witness reveals that appellant has caused injury over the head of deceased Shantanu Sahu by crowbar. In Para—8 of her cross-examination P'Wl Smt. Amrit Sahu, wife of deceased Shantanu Sahu has deposed that hrstly Shantanu Sahu was quarreling with Khedin Bai, wife of appellant then deceased Shantanu Sahu pushed Khedin Bai, she fell down on the floor at that time, appellant'was not present thereafter, he came and assaulted Shantanu Sahu. PW2 Deo Narayan, child f witness has deposed in Para—8 of his cross-examination that deceasedShantanu Sahu was quarremng with Khedin Bai, wife of appellant then deceased Shantanu Sahu pushed Khedin Bai, she fell down thereafter, she assaulted the deceased Shantanu Sahu by stick. He has also admitted that at the initial stage of dispute appellant was not present, he came afterwards when deceased Shantanu §ahu was quarrelling with Khedin Bai then he assaulted deceased by crowbar. As per evidence of Para—1 of PWI Smt. Amrit Sahu wife of deceased, appellant has caused injuxy over the head of deceased by crowbar then her husband fell down which shows that after receiving injury of crowbar deceased fell down. As per medical evidence i.e. autopsy report, 14 injuries have been found over the body of Shantanu Sahu except head injury, other injuries were not fatal in nature and some of the injuries were trifle in nature, it appears that other injuries have been caused by stick or as a result when deceased fell down. As regard the question of motive is concerned, as per evidence of PWI Smt. Amrit Sahu wife of deceased an PW2 Deo Narayan child witness, d deceased was quarrelling with the wife of appellant even he pushed the wife of appellant, when she fell down then she has assaulted the deceased by stick thereafter, appellant came to the spot and caused injury over the head of deceased by crowbar which was lying near the place of incident owned by deceased which shows that appellant has not caused homicidal death of Shantanu Sahu with intent to cause his death-but has caused homicidal death on spur of moment without premeditation when he was provoked by the act of ’Shantanu Sahu, who had pushed the wifeof appellant, in these circumstances clearly ruled out the possibility of committing culpable homicide amounting to murder caused by appellant. The act of appellant does not travel beyond the scope of Section 304 Part~II of the Indian Penal Code. While convicting the appellant under Section 302 of the Indian Penal Code learned Sessions Judge, Raipur has not considered most material aspect of the case relating to motive for commission of onence and mitigating circumstances in u fwhich appellant has caused injury and thereby committed illegality. For the foregoing reasons, criminal appeal is partly, allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 Part~II of the Indian Penal Code. Present appellant is in custody since 23/6/2004 i.e. for more than 6 years 83 5 months. In our opinion, period undergone would be sufficient sentence to the appellant for commission of aforesaid odence. Consequently, appellant is sentenced to period already undergone, he be released forthwith if not required in any other case. R Sd/- ‘ J T. P. Shanna f‘ £ R Sdl- ‘EManindra Mohan Shrivastava \ Judgie Judge’i _‘