O HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.930 of 2003 APPELLANT: Satish Kumar S/o Manikram Rajwar, aged about 23 years, R/o Vill. Sukhari (Kalapara) P.S. Ambikapur, Distt. ‘ Surguja(C.G.) Versus State of Chhattisgarh through Police Station Bishrampur, Distt. Surguja (C.G.) {Criminal appeal under Section 374 (2') of the Code of Criminal Procedure, 1973} RESPONDENT: ‘ r \ ' ' Present: Mr; Rakesh Pandey, counsel for the appellant. “t Mr. Ravindra Agrawal, Panel Lawyer for the State/respondent. Division Bench: - N Hon’ble Mr. T.P. Sharma & r it Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (9—1 2-2009) 1. Cha!ienge in this appeal is to the judgment of conviction & order of sentence dated 4-7-2003 passed by the 3rd Additional Sessions Judge (Fast Track Court), Surajpur in Sessions Trial No.141/2002, whereby & whereunder learned Additionai Sessions Judge after holding the accused/appellant guilty for commission of the offence under Section 302 of the l.P.C., sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/—, in default of payment of fine to further undergo R.l. for ’six months. 2. Judgment is impugned on the ground that without any iota of evidence relating to the commission of murder, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 10—12-2001 ‘3 at about 9 p.m. when deceased Rambharose was eating meals with other persons, the appellant suddenly went with hammer and assaulted over his head as a result of which the deceased became unconscious. Rambharose was taken to the Police Station and Ransai (PW-4) lodged the report vide Ex.P-4. Thereafter, injured Rambharose was taken to @ Mission Hospital, Ambikapur and from there, he was taken to Banaras where Rambharose died. Rambharose was examined by Dr. K.K. Tamrakar (PW—7) vide Ex.P-9 who found one Iacerated wound over head of 12 cms. x 3 cms. x scalp depth. He was complaining pain over cervicai region of neck. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Surajpur, who in turn committed the case to the Court of Sessions, Ambikapur from where the 3rd Additional Sessions Judge (Fast Track Court), Surajpur received the case on transfer for trial. 3%9w’?g”n 4. ln order to prove the guilt of the appellant, the prosecution has examined as many as sixteen witnesses. The accused/appellant was examined undér‘Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. The accused has also examined defence witness Annu Ram (DW—1), who has deposed that the appellant, Nanhu, Ramprakash, Mahendra & .. Shyamlal were having enmity with each other. 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant. 6. We have heard learned counsel for the parties, perused the judgment imugned and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that according to the case of the prosecution, the appellant has caused injury without any intention of causing death of a person, the conviction is based on the statements of Nanhu Ram (PW—14) & Mahendra (PW-15) who were having enmity with appellant Satish Kumar, their evidence does not inspire confidence and not sumcient to rely upon. 8. On the other hand, learned State counsel opposed the appeal and supported the judgment impugned. 9. ln order to appreciate the contentions of the parties, we have examined the evidence available on record. 10.ln’ the present case, the homicidal death of Rambharose is not substantially disputed by the appellant. The deceased died at Banaras [and the prosecution has not proved the autopsy reportior it has not examined the doctor who has conducted autopsy on the dead body of \ p Rambharose. Dr. K.K. Tamrakar (PW-7) who has examined injured Rambharose on 10-12-2001 after the incident found one Iacerated wound over his head of 12 cms. x 3 cms. x scalp depth. Radheyram (PW—2), Nanhu Ram (PW-14) & Mahendra (PW-15) have specificaily deposed that they took Rambharose to Banaras. Radheyram (PW-2) has deposed that Rambharose died at Banaras. These facts are not substantially disputed by the appellant and are sufficient for drawing inference that Rambharose died at Banaras as a result of the injury caused to him at the time of incident. 11.As regards complicity of the appellant in the crime in question, Nanhu Ram (PW-14) has deposed in‘his evidence that at the time of incident they were taking meals in the house of Goverdhan, deceased Rambharose was aiso sitting there, at that time the appeilant came there, he was weeping, on being asked the reason for weeping, he did not gay anything and after some time, he went out from the house of Goverdhan, but‘after some, he again came with hammer and assaulted Rambharose with the hammer over his head. Rambharose fell down, they took him to the Police Station and hospital.‘ Mahendra (PW-15) has corroborated the statement of Nanhu Ram (PW-14). 12.Defence has cross-examined defence witness Annu Ram (DW-1) to show that both these witnesses were having previous enmity with the appellant. ln his cross-examination, Annu Ram (DW—1) has deposed that there was function of chhatthi and he was also invited, but he had not gone to attend the function on the ground of illness. -13.lf the factum of enmity of the witnesses with the appellant is admitted, only on the ground of enmity the evidence of Nanhu Ram (PW-14) & Mahendra (PW-15) cannot be discarded and their evidence only require minute scrutiny. 14.Defence has cross-examined Nanhu Ram (PW-14) in detail, but it has not been able to elicit anything in his cross—examination to discredit his testimony. Defence has also cross-examined Mahendra (PW-15) in detail, but it has not been able to elicit anything in his cross-examination 'to discredit his testimony. Both the witnesses have categorically deposed in their evidence that at the time of incident the appellant came with hammer and assaulted Rambharose. Annu Ram' (DW-1) has not stated that these witnesses had quarrelled with the appellant on or within 4 “B 2-3 days of the commission of offence. Their evidence find support from h the promptiy Iodged F.l.R. Ex.P-4, aithough Ransai (PW—4) has not supported the contents of the F.l.R. (Ex.P—4) but has admitted that he has Iodged the report on the same day. Their evidence also find support from the injury found over the body of the deceased. These are sufhcient for drawing inference that the appeiiant has caused injury to Rambharose and as a result of such injury Rambharose died. 15.As regards the commission of homicidal death of. Rambharose amounting to murder by the appeiiant and motive of the commission of offence, admittedly the prosecution has not adduced any evidence to show that the appellant has caused fatal injury on the person of the deceased with intention to cause such injury or on the ground of some preVious cause after preparation or the appellant has repeatedly caused the injury. Firstly, the appellant came to thefplace where the chhatthi l functiQn was goihg on, at that time he was weeping, thereafter, he went i away and came with hammer and caused one injury on the head of the‘ deceased and again went away. This shows that at the time of commission of offence the appellant was in a state of disturbance on the ground of some circumstances and as such, he has assaulted the deceased. However, it can be safely inferred that while assaulting the deceased with hammer, the appellant was having knowledge that he may cause the death of the deceased. The Additional Sessions Judge while convicting the appellant has not considered the material aspect of the case relating to intention & motive of the commission of offence. The evidence adduced on behalf of the prosecution reveals that the act committed by the appellant does not travel beyond the scope of Section 304 Part—I of the I.P.C. Conviction of the appellant under Section 302 of the I.P.C. is not sustainable under the law. 16.For the foregoing reasons, the appeal is partly allowed. Conviction & sentences of the appellant under Section 302 of the I.P.C. are hereby set aside, instead thereof, the appellant is convicted under Section 304 Part- l of the i P C and sentenced to the custodial period already undergone by him from 11 12—2001 till date Ie about eight years He be released forthWlth If not reqUIred In any other case Sd/- T'P‘ Sharma. Judge Soma ' /