HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Comm: HON’BLE MR.T.P.SHARMA & HON’BLE MR. RN. CHANDRAKAR, JJ. Ctiminal Appeal No. 45 of 2006 Appellant Mangal Korwa Slo Mahto Korwa, R/o (In Jail) Gram Peth (Dumzaria), Police Station . Sitapur, District Sarguja (C.G.) Versus Respondent State of Chhattisgarh, Through : P.S. sitapur, District Sarguja (C.G.) it , (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Present:- Mr. Abhijeet Sarkar, counsei for the appeuant. Ms. Madhunisha Singh, Panel Lawyer for the State. JUDGMENT (Delivered on 04f“ November, 201 1) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20.12.2005 passed by the Sessions Judge, Sarguja (Ambikapur) in Sessions Trial No.157/2005, whereby & whereunder learned Sessions Judge after hoiding the appellant guilty for commission of culpable homicide amounting to murder of Ratiram (since deceased)’ convicted under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life and to pay tine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. . As per the case of prosecution, on fateful day 03.03.2005 at about 4:00 pm, appellant assaulted Ratiram by axe and stick, resulted into his instantaneous death at village Peth (Dumzaria), Police Station Sitapur, District Sarguja (Ambikapur). PW/4.Sukhram, father of the deceased, lodged FIR vide EXP/5 and merg vide Ex.P/6. Investigating officer left for scene of occurrence, after summoning the witnesses vide EXP/14, inquest over the dead body of deceased was prepared vide EXP/15. Spot map was prepared vide EXP/12. Patwari also prepared spot map vide EXP/f. Blood stained soil, plain soil and one bamboo stick were recovered from the spot vide EXP/1 1. Dead body of Ratiram was sent for autopsy to Block Medical Officer, Sitapur vide Ex.Pl3. Dru s.K. Agrawal (PW/2) conducted autopsy vide Ex.PI4 and found following injury. i). Depressed wound over head with fracture of the head bone. - Mode of death was shock. During the course of investigation, appeilant was taken into custody. He made disclosure statement of stick vide Ex.P!9 and same was recovered at his instance vide EXP/10. Clothes of deceased were seized vide EXP/16. Seized articles were sent for chemical examination and presence of blood over axe and stick seized from the appellant was confirmed vide EXP/19. . Statements of the witnesses were recorded under Section 161 of the V Code of Criminal Procedure (for short the ’Code') and after completion of investigation, charge sheet was tiled before the Court of Judicial lwli A uvji‘Sgv‘J. Magistrate First Class, Ambikapur, who in turn committed the case to the Cour of Sessions, Ambikapur, where the trial as conducte t w d. tn order to prove the uil of the accused/appellant, prosecution has . gt examined as many as 09 witnesss. Statement of the accusedrappeilant e was recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false impiication in the crime in question is claimed. ter providing opportunity of hearing to the parties, learne Sessions . Af d Judge, Sarguja (Ambikapur) convicted & sentenced the appellant as aforemetioned. n . Shri Abhijeet Sarkar, counsel for the appellant and s Madhuha M nis Singh, Panel Lawyer for the State are heard, perused the judgment impuged and record of th trial Court. n e Learned counsel for he appellan vehemently argued that initially the . t t case was based on evidence of eye witnesses but the have not y supported the case of prosecutin. As er initial case of prosecution o p , appellant has not made any extra judicial confssion bore PW/3- e ef Mangal Ram and PW/5-Mohd. Hakim. First time both the witnesses had deposed that appellant has made extra judicial confession before them, which does not inspire confidence and trustworthy. earnd counsel for Le ; the appellant further submits that even if the evidence of afoesaid r witnesses is considered as true then the act attributed to the appellant does not travel beyond the scope of Section 304 part—ll of the IPC. . On the other hand, learned Panel Lawyer for the State opposed the appeal and submits that PW/3-Mangal Ram and PWI5—Mohd. Hakim have deposed that appellant has made extra judicial Gonfession before them and Court below has rightly relied upon the evidence of extra judicia! confession. After appreciating evidence available on record, learned Sessions Judge has rightly convicted and sentenced the appellant aforementioned. 10.ln orderto appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 11.ln the present case, homicidal death of deceased Ratiram as a result of fatal injuries found over the head of deceased has not been substantially disputed on behalf of the appellant, on the other hand, also established by the evidence of Dr‘ S.K. Agrawal (PWI2) and autopsy report EXP/4 that the death of deceased was homicidal in nature. 12.As regard to complicity of appellant in the crime in question is concerned, conviction of’the appellant is substantially based on evidence of PW13- Mangal Ram and PW/S-Mohd. Hakim. As per initial case of prosecution, the case was not based on evidence of extra judicial confession although it was based on evidence of eye witness PW/4-Sukhram and PW/.?—~ Deriha. After commission of offence, appellant along with his family members came to PW/3-Mangal Ram and PW/S-Mohd. Hakim and made extra judicial confession that after consuming liquor he quarreied with V: deceased and caused injury over the head of deceased and deceased died then PWI5Mohd. Hakim telephoned to police. Defence has cross- examined these witnesses at length and in their cross-examination they have admitted that police has not recorded their statement but they have specifically. deposed that appellant has made extra judicial confession before them although they have deposed the aforesaid fact first time in @ the Court but their ewdence Inspire confidence and trustworthy to the r extent of extra judlcnal confession made by the appeHant before them PW/3-Mangal Ram Is a Kotwar and PW/5-Mohd Hakim Is an Up- sarpanch of the vmage and both are responsmle persons of the vmage and extra Judrcml confessmn made before them would not be unnaturai Consequently, evrdence of both the Witnesses Is safe to rely Extra judrcral confession Is one kmd of evrdence and If It rs proved to be true the same would be sufflclent for convrctlon of the accused/appellant 13 As regards the question of mtentron and motive In case of direct evrdence motive losses lts Importance even otherwise motrve only ands In criminality and can be Inferred on the basas of nature of Intury klnd of weapon used part of the body effected and other similar circumstances. 14 in the present case as per evrdence of PW/a-Mangal Ram and PW/5- Mohd Hakim present appellant has made extra judicral confession that after consuming liquor quarrel took place and he has caused Injury to deceased by axe and stick which shows that incrdent took place on sudden provocation and on a spur of moment wrthout premeditatlon Durrng the course of quarrel present appellant has caused homicidal death of deceased with intent to cause his death but at the time of causmg such injury he was having knowledge that by his act deceased ;_ may die Thus the act attributed to the appellant squarely falls Within the ambit of Section 304 part-ll of the IPC 15 While conwcting the appellant under Seotron 302 of the l P C the Court \ below has not considered the aforesaid circumstances for commission of t \ \ offence and thereby committed the illegality. , \ i JV \ 16 For the foregamg reasons the appeal Is partly allowed Convlcllon of the appellant under Section 302 of the IPC ls altered to Section 304 Part-ll of more the IPC than He 6 ls V2 m custody from 06 03 2005 till today and has completed years Hls sentence ts reduced to the perlod already undergone by him He be released forthwrth If not required m any other \t v case Jess i' l t i 5dl— e - ‘ T. p_ sharma Judge M l RN Chandrakar