HIGH COURT OF CHHATTISGARH : BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jail) RESPONDENT Cr.AppealNo. 61 Oof 2006 Manjhiram, aged about 40 years, Son of Shri Ghana Nagesiya, Caste Gond, Occupation Agriculturist, Resident of village Chitarpur, Pahadapara, Police Station Dhourpur, District Surguja (C.G.) Versus State of Chhattisgarh, Through : The Police Station Dhourpur, District Surguja CRIWIINAL APPEAL UNDER SECTION374 (2) OF THE CR.P.C., 1973 Appearance: Shri V.K.Pandey, counsel for the appellant. Shri Rajendra Tripathi, PL for the State JUDGMENT (Delivered on 05.04.2010) The following Judgment was delivered by T.P.Sharma, J. The challenge in this appeal is to the judgment of conviction and order of sentence dated 28:07.2006 passed by the Session Judge, Ambikapur in Sessions Trigl No. 262/2005 whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of his brother Bal Sai, the trial Court convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to imprisonment for life and fine of Rs.100/- in default offine, to further undergo one month rigorous imprisonment. 2. Conviction is impugned on the ground that without any proof of motive for causing death ofthe deceased, the Court below convicted and sentenced the appellant and thereby committed illegality. 3. Brief facts of the prosecution case are that on fateful day i.e. 11.06.2005 between 10-11 p.m. the appellant assaulted Bal Sai, who is brother of the appellant, on his knee and legs by axe and caused grievous Ssaiiaii -'\'~~ /o^ .^ ^lfs fe=>6&^:SS^^' v injury. Son of deceased - Rajan lodged an F.1.R. vide Ex.P.4. Injured - Balsai was sent for treatment and Dr.Kamtesh Kumar P.W.11 examined the injured and found three injuries over both of his legs. During the course of treatment, Bal Sai has died. Merg thereofwas recorded vide Ex.P.14. After summoning witnesses vide Ex. P.1, inquest overthe dead bodywas prepared vide Ex.P.2. Dead body was sent vide Ex.P.6A for autopsy to the Community Health Centre, Dhourpur and autopsy was conducted vide Ex.P.6 by Dr. B.L.Tulani and found the following injuries: i. Stab wound over the right leg of 2 x 2 cm. x desp to bone. ii. Lacerated wound of 5 x 3 cm. and 3x2 cm. over the left leg. iii. Stab wound of 1 x 1 cm. x bone deep over left knee. iv. Fracture of tibia and fibula bone. Mode of death was shock and death was homicidal in nature. The accused / appellant was taken into custody. He made disclosure statement of axe vide Ex.P.9 and the same was recovered at the instance of the appellant vide Ex. P.10. Bloodstained and plairi soil was recovered from the spotvide Ex.P.11. Spotmapwas prepared vide Ex.P.5. 4. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. (for short the Code). After completion of investigation, charge sheet was filed before the Court of J.M.F.C. Ambikapur who in turn committed the case to the Court of Sessions Court. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 13 witnesses. The accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. He also examine one defence witness namely Mani Sao D.W.1. 6. After affording opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard learned counsel for the parties at length. Record of the Court below and judgment impugned are perused. 8. Counsel for the appellant frankly admits that in the light of evidence of P.W.2 Rajan, P.W.3 Bansi Sao and P.W.12 Shital he is not disputing the <!*; .^^•s^^s^ ?f¥^Sg>8aasaE2:' '-^•E^?-!•-" ^^@^^:i3;E^S^-^. injury found over the body of the deceased but he is only disputing the conviction and submits that prosecution has not proved the motive of the case. If the evidence of the prosecution is admitted at its face value, then even the case of the appellant dpes not travel beyond the scope of Section 304Partllofthel.P.C. 9. On the other hand, learned counsel for the State opposed the appeal and supported the impugned judgment. 10. In order to appreciate the arguments advanced by the learned counsel for the parties, we have examined the evidence minutely. In the present case, homicidal death of the deceased - Bal Sai has not been substantially disputed on behalf of the appellant even otherwise also established by the evidence of Dr. Kamlesh Kumar P.W.11 and P.W.4 Dr. B.L.Tulani and autopsy report Ex. P.6. Death was due to shock and was homicidal in nature. 11. Admittedly, as per the evidence of Dr. Kamlesh KumarP.W.11 and Dr. B.L.Tulani P.W.4, 4 injuries were found over the legs and knee including fracture of tibia and fibula bone. Out of the injuries, one injury was grievous in nature but was not dangerous to life. Causing injury especially by sharp edged weapon on the legs and that too on vital part shows the intention of the appellant that he has not caused such injury with intent to cause death of the deceased but definitely at the time of causing grievous injury repeatedly by axe the appellant was having knowledge that by his act the deceased may die. The evidence adduced on behalf of the prosecution is sufficient to establish the fact that the appellant not caused injury with intent to cause the death of Bal Sai but at the time of causing injury he was having knowledge that by his act the deceased may die. Therefore, the act of the appellant does not travel beyond the scope of Section 304 Part II of the I.P.C. While cbnvicting the appellant, the Court below has not considered the aforesaid fact and thereby committed illegality. 12. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant under Section 302 of the I.P.C. is altered to Section304 Part II of the I.P.C. to the effect that the appellant is sentenced to 5 years rigorous imprisonment. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge