HIGH COU O‘ CHHATTISGARH AT BILASPUR DIVISION BENCH Coram HON BLE MR T P SHARMA & HON BLE MR R N CHANDRAKAR JJ Criminal Ameal No 13 of 2008 1 Appellants . Balram S/o Shrl Ram Kumar aged (in Jail) ‘ about 26 years Mahk Ram S/o Shn Knpa Ram aged“ about 36 years Both resndent of village Pauna, P.S. -.Pamgarh, District — Janjgir—Champa .(C.G.) Versus State ofIChhattisgarh, Through : P.S. Pamgarh, Distt.-Janjgir—Champa‘ (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) _ Respondent Present:- Mr. B.P. Singh, counsel for the appellants. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (Delivered on 29‘“ November, 201i ) Per T.P.Sharma, J.:- 1. Challenge .in this appeal is to the judgment of conviction & order of sentence dated 29.11.2007 passed by the Additional Sessions Judge, Janjgir—Champa, in Sessions Trial No.181/2006, whereby &‘whereunder learned Additional Sessions Judge after holding the appellants guilty for commission 'of culpable homicide amounting to murder ‘of Jagdish Prasad (since deceased) and in sharing common intention convicted under Section 302/34 of the l.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.1000/- each, in default of payment of fine further to undergo R.l. for 3-3 months. RT F ; Cotion is mpned the gr that without y ot f evidce the rial Court hs onte sntenced apllants as omtio n mited Illeglity . A per the case prosecu as Kumar (/8 n of deceased sh used t chas h apln for g r n 2 1 06 pllant ere sr ntosh Kmar (PW/8 or aug ry n oue ad a bt as t resent a home he unortnate deese as ca o from the ho and stop the apllnts rom ug on hn appelnts assaultd by stick an c .s iies over his hea and shodr as result of ic eel dn. is sn Santosh (PW/ went to polic statio and - loded FIR vide x./7. Injured Jagdish was st for medical exmination vide Ex.P/20. He s examined by Dr.K.K. Dahir (PW/12) vide Ex.P/20A and found follong injuries: (i) (ii) 3 incised wound of 6 x1 x 0.5 cm, 3 x 1x 0.5 cm and 3 x 1 x 0.5 cm over right occipital region. (iii) Swelling over left hand‘of 1O x 5 cm. ) . nvic iug on oUnd an ia o en t a cVicd & e the pe afreenned ad thereby comt a s of tion Sntoh PW) so Jagdi o e te pelats causm injuy O 2 0 20 apes w eaching Sa u ) f csm inju i his hs n busing him u he w no p t tn fu cad Jgdih me ut use tried to pea f absm his s te la e him d aused ix njur d ule a H whh h~fl ow H o 8) e n g EP en a wa e wi incised wound of 1.5 x 1 cm near right eye. (iv Swelling over right shoulder of 1O x 10 cm. . During the course of treatment. deceased died. Merg was recorded vide EXP/23. 'After summoning the witnessed vide Ex.P/3, inquest over the dead body of deceased was prepared Ex P/4 Dead body was sent for autopsy to CIMS Bilaspur Vide Ex P/5 Dr Vijay Kumar Verma PW/13) conducted autopsy Vide EXP/5 and found followmg injuries Stitched wound of 4” above right ear. Stitched wound of 3” over right occipital area. Fracture of frontal parietal and temporal bone. injury over brain. Mode of death was coma. #wNtx— . Spot map was prepared by investigating officer vide Ex.P/8. Sealed clothes of deceased were seized vide Ex.P/21. Bamboo stick was seized from appellant Malik Ram vide Ex.P/9. Karil was seized from appellant Balram vide Ex.P/10. ( 6. Statements of the witnesses were recorded under Sectiort V161 of the Code of Criminal Procedure (for short the ‘Code) and after completion of Investigation charge sheet was filed before the Court of Chlef JudICIal Magistrate Janjgrr who m turn committed the case to the Court of SeSSIons Judge JanJgIr which learned Additional Sessmns Judge received the case on transfer for trial 7. In order to prove the guilt of the accused/appenants the prosecution has examined as many as 14 Witnesses Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the Circumstances appearing against him and innocence and false implication in the crime in question is claimed. 8. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, Janjgir convicted & sentenced the appellants as aforementioned. 9. Shri B.P Singh counsel for the appellants and Shri JA Lohani Panel Lawyer for the State are heard perused the Judgment impugned and record of the trial Court 10.Learned counsel for the appellants vehemently argued that although conviction is substantially based on evidence of Santosh Kumar (PW/3), Savitri Bai (PW/5), wife of deceased, Ramayan (PW/7) and Santosh Kumar (PW/8) son of deceased but their evidence do not inspire confdence and trustworthy Prosecution has failed to prove motive for commissmn of offence even othervvise there was no propriety or cause‘ for causmg such homiCidal death of deceased He further submits that. as per initial case of prosecution Santosh Kumar (PW/8) son of deceased used to chase appellant for. causmg iniury, they were perturbed and on account of such regular disturbance they‘vwere searching Santosh Kumar (PW/8) for teaching him lesson. When deceased came to know about the said fact, he tried to intervene and create hurdle then all of sudden without premeditation appelladts assaulted deceased with a view to teach him lesson. He also submits that appellants have not caused homicidal death of deceased with intent to cause his eath. d 11.0n the other hand, learned Panel~ Lawyer for the State opposed the appeal and submits that on account of dispute with Santosh Kumar (PW/8), son of deceased, both the appellants in sharing common intention caused homicidal death amounting to murder of deceased Jagdish. After appreciating evidence available‘on record, learned Additional Sessions Judge has rightly‘ convicted and sentenced the appellants aforementioned. 12. In order to appreCiate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 13.In the present case, homicidal death of deceased Jagdish as a result of fatal injuries found over the vital part head of deceased has not been substantially disputed on behalf of the appellants, on the other hand, also established by the evidence of Dr.K.K. Dahire (PW/12) & medical report Ex.P/20A, evidence of Dr. Vijay Kumar'Verma (PW/13) and autopsy report EXP/5 that death of deceased was homicidal in nature. 14.As regard the complicity of appellants in the crime in question is concerned, conviction of the appellants is substantially based on evidence of Santosh Kumar (PW/3), Savitri Bai (PW/5), wife of deceased, Ramayan (PW/7) and Santosh Kumar (PW/8), son of deceased and they are relative witness. As per their evidence, they were present in the house and their presences on the spot were natural. Further as per their evidence, appellants were holding stickv and were searching Santosh Kumar (PW/8) but they did not find him then they assaulted his father i.e. deceased Jagdish by sticks as a result of which deceased fell down, he was badly injured and ultimately he died. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony to the extent that they have not seen the incident and appellants have not caused injuries to deceased. Thus, evidence of aforesaid witnesses is sufficient to prove the fact that appellants have caused homicidal death of deceased; 15.As regards the question of intention and motive, in case of direct evidence motive looses its importance, even otherwise, motive only aids @ in criminality and can be inferred on the basis of nature of injury, kind of ‘ weapon used, part of the body affected and other similar circumstances. 16.In the present case, appellants were not having any grudge against deceased. As per case of prosecution, Santosh Kumar (PW/8), son of deceased, used to chase the appellants for causing injury. On account of aforesaid disturbance they were searching Santosh Kumar but they did not find him, inter alia they found his father deceased Jagdish, some altercation took place between them and thereafter they caused injuries by stick. When it was stopped by intervener Santosh (PW/3) then they stopped and went to their houses. The aforesaid circumstances clearly reveal that they had cause for causing homicidal death of deceased as his son was disturbing the appellants. On account of such disturbance they were searching Santosh Kumar (PW/8) for teaching him lesson and incident took place. 17.Aforesaid circumstances of the case and evidence adduced on behalf of prosecution clearly revel that the acts attributed to the appellants do not travel beyond the scope of Section 304 Part-l of the IPC. 18.While convicting and sentencing the appellants uno‘er Section 302/34 of the l.P.C., the Court below has not considered the aforesaid circumstances and thereby committed an illegality. 19. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellants under Section 302/34‘ of the l.P.C. is altered into Section 304 part—l read with 34 of the l.P.C. and sentenced to undergo R.l. for eight years and to pay fine of Rs.1 ,000l- each, in default of payment of fine, to further undergo additional R.l. for one-one month. " ‘M'Wi'sdlf,:i a Sd/_ T. P. Sharma it, R.N; Chandrakar I ; .Judge r Judge Vijay