..-^s*^ '', ).< / !r HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR, JJ. Cri. Appeal No. 669/06 Appellant:- (Injail) VERSUS Respondent:- Surajdeo, Aged 55 yrs., S/o Ganesh Prajapati, Occupation Agriculture, R/o village Charaan pur, P.S. Chalagalui, Distt. Serguja State of C.G. through P.S. Chalgali, Distt. Serguja (C.G.) Criminal Appeal Under Section 374 of Criminal Procedure Code. Present:- Mr. Abhay Tiwari, Advocate for the appellant. Mr. R.R. Sinha, P.L. for the State/respondent. ORAL-JUDGEMENT (Passedon 04/04/2011) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 14/7/2006 passed by First Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja (C.G.) in Sessions Trial No. 315/05 whereby and where under after holding the appellant guilty for the comiTiission of offence of culpable homicide amounting to murder of Sukhau, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and c -tf* ^"•%: /?i',lC fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that without any 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 26/4/05 at evening time appellant and Sukhau (since deceased) were present in the house of Sukhau.Sukhau is brother-in-law of appellant, they proceeded from the house of Sukhau thereafter appellant assaulted Sukhau by stone over his head then Sukhau fell down. Their relatives shifted him to Government Hospital, Pratappur, after some time he was shifted to Holy Cross Hospital, Ambikapur on 27/4/05 at about 5:15 A.M, at that time Sukhau was unconscious. During course of treatment, he died on 5/5/05. Marg was intin-iated by PW16 Balram vide Ex. P-5. On the basis of Ex. P-5, Dehati Marg was recorded vide Ex. P-4 and finally Me-rg was recorded video Ex. P-6. Blood stained and plain soil were recovered from the' spot vide Ex. P-3. Investigating Officer left for scene of occurrence and after suramoning the witnesses vide Ex. P-13. Inquest over the dead body of Sukhau was prepared vide Ex. P-11. Dead body of Sukhau was sent for autopsy to Government Hospital, Ambikapur vide Ex. P-12 where PW14 Dr. R.N. Gupta conducted autopsy vide Ex. P-2 and found following injunes:- /i.^, /' h.''/ (i) Ante-mortem stitched wound of 5 x 2 c.m. x skin deep over right parietal region. (ii) Bruise over left fronto-parietal region of 10 x 10 c.m. with cracking sound. (iii) Depressed fracture of left parietal bone of 5 x 5 c.m. was found inserted into brain. Cause of death was head mjury and death was hoinicidal in nature. 4. Matter was inquired and finally First Information Report was registered vide Ex. P-14. Spot niap was prepared vide Ex. P- 15. During course of investigation, appellant was taken into custody, he made discloser statement of stone vide Ex. P-9, same was recovered at his instance vide Ex. P-10. 5. Statements ofthe 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, Ramanujganj who in turn committed the case to the Court of Sessions, Ambikapur from where learned First Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja (C.G.) has received the case on transfer for trial. 6. In order to prove the guilt of the appellant prosecution examined as many as 24 witnesses. Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false iraplication in crime in qtiestion is claimed. Appellant was also examined defence witness DW1 Ramparikshan Yadav who deposed about the character of the appellant. \t, '^ 7. After affording an opportunity of hearing to the parties learned First Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja (C.G.) has convicted and sentenced the appellant as aforementioned. 8. Mr. Abhay Tiwari, Advocate for the appellant and Mr. R.R. Sinha, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. 9. Learned counsel for the appellant vehemently argued that as per initial case of the prosecution, Sukhau died as a result of head injury. First Information Report was registered after delay i.e. more than 15 days. Statement of the witnesses were also recorded after long delay. Evidence of alleged eyewitnesses PW1 Kalesari, PW5 Smt. Nanda Devi 85 PW7 Lalsai are does not inspire confidence and trustworthy. It appears that they have not seen the incident and they have falsely implicated the appellant in crime in question. 10. Learned counsel for the appellant further argued that if the case of the prosecution is considered then the act of appellant does not travel beyond the scope of Section 304 Part-II of the Indian Penal Code. 11. Learned counsel for the appellant placed reliance in the matter of Hanmappa v. State of Karnataka1 in which Supreme Court has held that in case of throwing stone over the deceased on sudden quarrel and death of deceased, the conviction would be under Section 304 Part-II of the Indian Penal Code. ' (2010) 1 SCC (Cri) 273 ?.& Zj.>' 12. On the other hand, learned Panel Lawyer for the respondent/State opposed the appeal and argued that evidence of eyewitnesses are sufficient for drawing an inference that present appellant has caused fatal injury resulting into death of Sukhau. After appreciating the evidence learned First Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja (C.G.) has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 14. In the present case, homicidal death as a result of fatal injury found over the head of deceased Sukhau including fracture of parietal bone has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW14 Dr. R.N. Gupta SE autopsy report Ex. P-2 and death was homicidal in nature. 15. As regard the complicity of the appellant in crime in question, conviction is substantially based on the evidence of eyewitnesses PW1 Kalesari, PW5 Smt. Nanda Devi & PW7 Lalsai who has deposed that at the time of incident, appellant assaulted Sukhau by stone over his head then Sukhau fell down. Defence has cross-examined these witnesses at length. As per evidence of PW1 Kalesari (daughter of deceased Sukhau), deceased Sukhau was brother-in-law of appellant and there was no previous enmity between them even on the date of incident, they jointly consumed liquor provided by her '^ mother to them thereafter incident took place. Other witnesses have also adraitted that there was no previous dispute, at the time ofincident only two persons i.e. deceased and appellant were present. 16. As per evidence of PW5 Smt. Nanda Devi, on account of some quarrel, appellant assaulted the deceased Sukhau. Although prosecution has recorded their statement after long delay but the evidence of these witnesses are inspire confidence and trustworthy even otherwise medical report vide Ex. P-7 of deceased Sukhau reveals that he was beaten by some person 8s inquest report Ex. P-11 also reveals that deceased Sukhau was assaulted by appellant by stone. These facts substantially corroborated by the evidence of aforesaid witnesses and same are sufficient for drawing an inference that present appellant has caused homicidal death of Sukhau by stone. 17. As regard the motive for commission of offence is concerned, motive is only aid in criminality and looses its importance. In case of direct evidence, even otherwise motive can be inferred on the basis of nature of injury, part of the body where injury was caused, weapon used and other like circumstances. 18. In the present case, there was no previous dispute even both the persons have consumed liquor provided by wife of deceased Sukhau thereafter on sudden quarrel incident took place. Appellant was not having any weapon for causin; injury and took out the stone lying in the field shows that he has caused injuiy without premeditation but at the time of 6. ?I causing such injury, appellant was having knowledge that by his act deceased Sukhau may die. After receiving injuiy, deceased Sukhau became unconscious and fell down then appellant has not caused any injury to deceased Sukhau. Sukhau was admitted in hospital on 27/4/05 and died on 5/5/05. 19. As held in case of Hanniappa (Supra'1 in the present case, appellant has not caused any injury with intent to cause the death of Sukhau but at the time of causing such injury, he was having knowledge that by his act Sukhau may die. In the aforesaid circumstances, act of appellant squarely falls within the ambit of Section 304 Part-II of the Indian Penal Code. While convicting the appellant under Section 302 of the Indian Penal Code, Court below has not considered the aforesaid circumstances in which incident took place and thereby committed an illegality. 20. Por the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into Section 304 Part-II of the Indian Penal Code. Present appellant is in custody since 14/5/05 for about 5 years 8s 10 months. Present appellant is sentenced to rigorous imprisonment for the period already undergone i.e. 14/5/05 till today for about 5 years & 10 months, he be released forthwith, ifnot required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge