mag. - HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 8a HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL No. 705/2006 APPELLANT ‘ ‘ Sonsai aged— 45 yrs., S/o Jhadiya, (INIJAIL) , R/o Dekidoli, P.S. Seetapur, Distt, Serguja. VERSUS RESEQ k NDENT State of C.G. g Memo of Appe‘al Under Section 374 of Cri. Pro. Code. Preseg‘ntE Mr. Ab‘hay Tiwari, Advocate for thl‘“ appellant - Ms. Madhu Nish‘a Singh, P.L.‘ fof {he State/réspondent. ORAL-JUDGEMENT A. (Passed on 01/07/201 1) The following judgment of the Court was passedsb’V T.P. Sharma, J:- 1.. Challenge in this appeal is to the judgment of conviction nd order of sentence dated 8/9/2006 passed by Firs a t Additional Sessions Judge, Surguja, Ambikapur (C.G.) in Sessions Trial No. 436/2005 whereby and Where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Manmati Bai; convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fin‘e of Rs. 100/—, in default of payment of'fine amount, additional rigorous imprisonment for l year. Conviction is impugned on the ground that without an. iota of evidence sufficient 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 17/10/2005 at about 11:00 A.M. Manmati Bai (since deceased) was present in her house. Appellant is relative of Manmati Bai came to her house and on the ground of itchcraft, he assaulted her by heavy wooden object (1131?) and causedinjury over the head of Manmati Bai then she died on the ' spot. PWS Jeevan, husband of deceased Manmati Bai went to the Police Station and lodged First Information Report Vicle Ex. P—9. Marg intimation was”; recorded vide Ex. P-5. Investigating Offi‘cer left for scene 'of occurrence and after summoning the witnesses vide EX. P—2, inquest over the dead body of deceased Manmati Bai was prepared vide Ex. P—3. Blood stained 8L plain soil, blood stained bag, broken piece of bangles and blood stained heavy Wooden object (W) were recovered from the spot vide Ex. P—4. Panchn'ama of the spot was prepared vide EX. P—6. Spot map was prepared vide EX. P— 7. Cloths of appellant were seized vide Ex. P—lO. Patwari also prepared spot map vide EX. P—ll. Dead body of Manmati Bai was sent for autopsy 'to Community Health Center, Seetapur vide Ex. P—l3. PWI3 Dr. M. Nikunj YL y w ‘ - conde opsy Vid E. —2 [a und one cerated uctd aut e X P1 nd fo la ound o 11/2 . ov uer at of ea long with. sling o he with raure of mpora one. der ea ma 8 ok nd ws il n nu '- homicda i atre. States o he wnesse wer rorde nder Sectio ment f t its e ecd u n 6 of the Code f rinal redure, (in sr ‘the 11 o Cim Poc 1973 hot C he inti ghet ode’l. After completion of t vestigaon chare'se was fi for te Jdical Magistrate First las, { led bee h ui , Cs Ambapr in m e he Ct ik‘u who turn comitted th case to t our o Sei mbaur rm where led First f ssons, Aikp fo earn Aditon Sess Judge uruja ikpur (C. as received the ase transf ti.’ l r s; In orde to ve the. uilt of he'ella osion amin s man a 16 witnesses. Appllnt wa - examied con 3 of the Cd he ied the crcmstnce appeag aainst im, inocenc and V iuas rin g h ny ati n in claid false implicon i crime question is me. After affording an opptn o eang t parties oruity f hri to he len st Ad Sesin J ugj ared Fir ditional sos udge, Srua, Aiapur‘ . as conve and ntcd he mbk (CG.) h ictd seene t aan entned ppellt as aforemio. - A Tiri Avo pela a s Mr. bhay wa, dcate for the aplnt nd M. Mah Nish Sinh, .. r ‘trespOndent ar w f 8 X 1 X cm. er pp pr r a wel n t head fct tel b Mo of dth. was co a shc a death a bf dial ions , Sg, Amba ’G.) h c on er for ral r pro g tappnt precut exed a y s ea s n underSeti 31 oe wre he den du a g PL fo the Sate/ e heard. Judgment impugned, and record of Court ‘belo perused.- 8. v Learned/counsel for the appellant vehemently argued that 7 in the present case in the light of evidence of PW8 Manju, I daughter of deceased Manmati Bal he 1s not disputing the fact that appellant has not caused Single blow by heavy wooden object (113W) and caused hom1C1dal death of Manmati Bai. Learned counsel for therappella’nt further argued that act of appellant? clearly reveals that he has not caused any injury to cause the death of Manmati Bai but on account of dispute relating to Witchcraft, he has caused injury to each her lesson with intent to cause'grave’ injury to her: In these circumstances, act ofappellant does not travel beyond the scope of under Section 325 of Indian Penal Code. On the other hand, learned P.L. for the respondent/State pposed the appeal and argued that present appellant has caused fatal injury over the head i.e. vital part of deceased Manmati Bai by using heavy wooden object (113W) shows that he has caused homicidal death of deceased Manmati Bai with intent to cause her death. After appreciating the evidence available on record learned :‘F‘irst Additional Sessions Judge, Surguja, w t o I 'Ambikapur (C.G.) has rightly convicted and sentehced the [appellant as aforementioned. \ In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the parties. In'the present case, h‘omicida'l death as a result of fatal injury found over the headie. vital part of deceased @f Manmati Bai has not been substantially disputed on $behalf of the appellant on the other hand, otherwise also ’ established by the evidence of PWI3 Dr. M. Nikunj and autopsy reportVEX.‘ P—12 and death was homicidal in nature. :W I _ . 3 i As regard the complicity of the appellant in crime in. ) question is concerned, although "appellant has not disputed the aforesaid facts. but even otherwise by the evidence of PW8 Manju, daughter of deceased Manmati Bai who has seen the incident and has. deposed that present appellant has caused fatal injury over the head of her mother by heaVy wooden object (113W). This evidence is sufficient to establish the fact that appellant has caused I homicidal death of Manmati Bai. s regard the motive for commission of offence is concerned, motive is only. aid in criminality and loses its l importance. Incase ’of direct evidence, even otherwise ) motiveican be inferred on the basis of nature of injury, , A .:§WW....». ~ @M.‘ part of the body where injury was caused, weapon used and other like Circumstances As per evidence of PW8 Manju, appellant has caused 3 injuries but as per medical evidence specially evidence of PW13 Dr. M. Nikunj and autopsy report EX. P-l2, single njury has been foundrover the head of deceased Manmati Bai comprising fracture of temporal bone and no other injury- has been noticed which shows that appellant has caused-_single blow by heavy wooden object (113W) on account of dispute relating to witchcraft. At the time of incident, he was not holding heavy wooden object (113W) or any object for causing such injury and he has took out r heavy wooden object (113W) from the house of deceased ‘ which is common article for house use shows that he has caused single injury'by heavy wooden object (1131?) but at the time of causing such injury by heavy wooden object (1131?) that too upon the head of Manm‘ati Bai, he was having knowledge that by his act deceased may die. These evidence are sufficient tor establish the fact that appellant has not caused homicidal death with intent to cause death of Manmati Bai but his act squarely falls within the ambit of under Section 304 Part—l of Indian Penal Code} While convicting and sentencing the appellant under Section 302 o'f Indian Pe’nal'Code, Court below has not . i " oidere he foreaid maria aspct and thereby , Cnsd t as tel e mte an i comitd llegality. 7. r t eon reasns,» cmin al i partly l Fo he forgig o rial ppea s alWed. onviin of the llan unde Seon 302 of lo Ccto appet r cti ndia Pel oe i alre into under cion 304 Part—I In na Cd s ted Set of dia ena C n sented igorous Inn Pl ode ad nce r r mprisn r yes Wit ine of s. 2000/—, .in t u f pat fe amount, aitiona rigorous w defalt o ymen of in ddl mont for ' P ppel $ i iprisnme 7months. resent alant is in r I usdylsice 191000 ad h f cto‘n //25 n e is entitled or set—off ~v- the oraid perio f'detei. for afes d onton Sd/- j t R.L. Jhanwar" .. Judge ft "’ W p rip it ‘1 il ‘ ' T‘P. SHARM Sd/- ‘ {x Judge b\v F ex ioment fo 7 ar h f R A E