w^ HIGHCQURTOFCHHATTISGARH:BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. Criminal Appeal No. 572 of 2006 APPELLANTS : 1. Kartik Ram, son of Ghansi Ram Sahu, (injai!) aged about 40 years. 2 Chaitram alias Chaturam, son of ghansi Ram Sahu, aged about 43 years. 3. Lakshmi Prasad, son of Kartik Ram ' Sahu, aged about 18 years. Atl residents of Vitlage Purshottampur, P.S. Basna, District ft4ahasamund (C.G.) VERSUS RESPONDENT : Stete of Chhattisgtarh, through Poiice Throuah Station Basna, District Mahasamund. CRIMINAL APPEAL UNDER SECTION 374(2) OF CRIMINAL PROCEDURE1973 Appearance: Shri B.D.Badgaiyan, counsel for the appeilants. Smt. U.K.S. Chandel, P.L. for the State. ORALJUDOMENT (Passedon 01.07.2011) Per T.P-Sharma. J. Challenge in this appeat is to the judgment of conviction and order of sentence dated 07.07.2006 passed by the 1 Additional Sessions Judge, Mahasamund (C.G.) in Sessions Case No. 123/2006 whereby and whereunder after hotding the appellants guilty for eommission of culpable homicide amounting to murder of Set Kumar in sharing common intention, the Court below convicted the appellant under Section 302/34 ofthe I.P.C. and sentenced them to life imprisonment with fine of Rs.500/- each. In case ofdefault, the appeltants shall further undergo rigorous imprisonment for one month each. 2. Conviction of theappetlants is impugned on the ground that without iota of evidence, the Court below convicted and sentenced ttie appellant as aforementioned and thereby committed illegatity. tsssa ^^-?':'S;£^^i' p, .. .-... .. . -. . 3. As per the case of prosecution, on 28.11.2005 at about 4.00 p.m. while P.W.1 Smt. Sadhni Bai and P.W.2 Smt. Agaar Moti were carrying bundles of paddy crop to the bam and while they were crossing frorn the field of present appeltants, suddenjy appellants came and asked why they were going across in their fietd and by asking such, appellant Kartikram slapped P.W.1 Smt. Sadhni Bai, mother of Set Kumar, and pushed her down,due to which, P.W.1 Sadhni Bai fell down and at the same time her husband Bodhram came to the spot and asked about Uie assault on his wife made by the appellants. Thereafter, all the'three appellants assaulted him by hwids, fists and wooden plank. Her son Set Kumar also came to the spot to intervene the incident. The appellants also assautted Set Kumar and caused serious injury, due to which, he fell down and became unconscious. Thereafter, P.W.1 Smt. Sadhni Bai and P.W.2 Smt. Agaar Moti and husband of P.W.1 - Bodhram took Set Kumar to the house and then P.W.1 Smt. Sadhni Bai lodged Rojnamchasanah initially vide Ex.P.18, on tte basis of which F.1.R. was registered under Section 325 and 34 of I.P.C. agairet the appellants vide Ex.P.19. They were sent for medieal examination to Community Health Center Basna where injured Set Kumar was examined Ex.P.5 by P.W.4 Dr. J. Sahu, who noticed injury over the face, complaint of pain over abdomen, two injuries over abdomen, two injuries over back and right shoulder; Dr. J. Sahu advised him to X-ray. Other injured were ateo examined vtde Ex.P.6 and 7 as also lathis vide Ex.P.8. Injwed Set Kumar was shfftect to Raipur for further treatment. During couree of treatment, he died on 2.12.2005 in ttie hospital after 4 days of the incident. Merg intimation was recorded vide Ex.P.9. After summoning the witnesses vide Ex.P.10, inquest over the dead body was prepared vide Ex.P.11 . Dead body was sent of autopsy to Community Health Center, Basna vide Ex.P.12 and P.W.8 Dr. M.K.Naik conducted autopsy and found injuries over nose, chest, abdomen including rupture of both lungs. Mode of death was Asphyxia and death was homicidal in nature. 4. Appeltant Kartikram also lodged report vide Ex.D-5. He was also sent for medical examination on 28.1 1.2005 vide Ex.D.4. Seven injuries have been noticed overthe body of Kartikram vide Ex.D-4A. 5. ~ Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code'). After completion of ^...^, ^^^^^isl'1'- investigation, charge sheet was filed before the Court of J.M.F.C. Saraipali, who in turn committed the case to the Court of Sessions, Mahasamund The learned Additional sessions Judge rece'ived the case on transfer. 6. In order to prove the guitt of the appellant, prosecution examlned as many as 10 wltnesses. The accused/appellants were also examiwd under Section 313 of the Code wherein they denied the circumstances appearing againstthem and innocence and false implication was claimed. 7. After providing opportunity of hearing to the parties, the leamwl Additional Sessions Jydge convicted and sentencal ttre appellants as aforementioned in para. 1 of the judgment. 8. We have heard Shri B.D.Badgaiyan, leamed eounsel for the appellants and Shri U.K. Singh Chandel, P.L. tor the Stete at length and perused the judgment impugned including record ofthe Court below. 9. Leamed counsel for the appellants vehemently argued ttiat in the light of evidence of P.W.1 Smt. Sadhni Bai and P.W.2 Smt. Agaar Moti, eye witnesses, he is not disputing the fact that the present appellants have not caused injury to Set Kumar and caused his homieidal death but submits ttiat in the peculiar circumstances of the case based on the evfdence of aforesaid witnesses, the incident took place without any premeditation, enmity or without any cause the incident arose when they were crossing fte fiekl ofthe appellants and especially when Set Kumar came to the spot for rascue of his fatherand mother. The appellants have not caused the deathof Set Kunar on the spot and Set Kumar has died after 4 days of incident durlng the course of treatment on account of rupture of Ih/er shows that pr^ent appellants have not caused death of the deceased with interrt to cause his death but on account of sudden quarrel and without premeditation, ttiey hava caused the aforesaid injury. Therefore, the act of the appellarts does not travel beyond the scope of Section 304 Part II ofthe IPC. 10. On the other hand, leamed counsel for tiie r^pondent o^osed fte appeal and submitted that present appellants have caused fatal injury and even they told the mother of the deceased that they have caused injury to her son and she may provide water and they did not bother for cemmitting such shows that the present appellants have caused injury wilh intent to causethe death ofSet Kumar. :^'':~:'?'.'l^^^^ 11. In order to appreciate the arguments advanced CNI behalf of the parties, we have examined evidence adduced on behalf <rf the prosecution. In the present case, homicidal death of deceased as a result of injury caused by the appellants has not been substantially disputed on behalf of the appeltants but also on the other hand established by the evklence of Dr. P.W.4 Dr. J. Sahu, injury report Ex.P.5 and autopsy reportvide Ex.P.12 and death of Set Kumar was homicidal in nature; 12. As regards the complicity of the appellants in crime in question, substentially conviction of the appellant is based on the evictence of P.W.1 Smt. Sadhni Bai and P.W.2 Smt. Agaar Moti whose evidence is suffident for drawing definite conclusion that present appellants have eaused homicidal death of deceased Set Kumar. 13. As regards question of moUve, in case of direct evidence, motive toses its importance, even otherwise, motive only aids in eriminalHy and it can be inferred from the use of weapon, part on the body affeeted and ottier similar cireumstances. In the present case, as per evidence of P.W.1 Smt. Sadhni Bai in paragraph 2 and 21, it appears that there was no prevtous enmity and terms of parties were cordial. They were carrying paddy crop and transporting the same from field to bam and while they were crossing from the field of the appellants, then the incident took place. Inltially appellant Kartikramslapped P.W.1 Smt. Sadhni Bai, when she was objected then alt accused persons were assautting her husband Bodhram and when the deceased Set Kumar, who was working in a field, came to intervene then all the appellants assaulted Set Kumar. The aforesaid facts and cireumstances cleariy show that the present appellarrts were present on frie spot and the appellants have caused single injury to P.W.1 Smt. Sadhnl Bai and when har husband came and then also they assaulted him and thereafter when Set Kumarcame to intervene, he was also assaulted bythem wiUi wooden plank, hands and fists. At the time of incident, the appeltante had sufficient opportunity to kill Set Kumar but appetlants did not do so and have merely caused injury and Set Kumar died as a result of initial injury i.e. rupture of lungs, after 4 days of incident. These cfreumstances are sufficient to establish the fact ttat present appellants have not caused any dangerous injury to Set Kumar with intent to cause his deatti but at the time of causing injury the appeilants were not in a position to know the fact Niat by their act, ''•"^1T~: 3?@;T:'^"^>: Set Kumar may die. These eireumstances ctearty show that the act done by the appellants does not travel beyond scope of Section 304 Part - 1 of the I.P.C. 14. While convicling and sentencing the appellants under Section 302/34 of the I.P.C. the Court below has not considered the aforesald most materiat aspect and thereby committed illegalfty. 15. For the foregoing reasons, the appeal is parBy allowed. Convtetion of the appellants under Section 302/34 ofthe I.P.C. is hereby altered toSection 304 Part-1 of the I.P.C. and they are sentenced to R.l. for 7 yeare with fine eS Rs.2000/- each and in default they shall fiirther undergo R.l. for 6 months. The appetlants Kartiram and Chaitram are in custody since 02.12.2005 whereas appellant Latemi Prasad is in custody since 15.12.2005. They are entiUed for. set off period. The appeltants shall be set at liberty, only after suffering remaining periodof detention. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar rt