^y' w H1GH COURT OF CHHAmSGARH, BILASPUR Criminai Appeal No.758Q005 APPELLANT (In Jail) VERSUS RESPONDENT Anand Singh Manjhi s/o Dokra Manjhi, age 50 years R/o Araymuda, P.S. Gharghoda, District Raigarh (CG) State of Chhattisgarh CRIMINAL APPEAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCUDERE Appearance: Shri Sachin Singh Rajput, counsel for the appellant Smt. Madhu Nisha Singh, Panel Lawyer forthe State. Division Bench:- Hon'bte Shri T.P. Sharma & Hon'bie Shri R-L.Jhanwar.JJ Per T.P.Sharma, J. ORALJUDGMENT (12.05.2011) Chaltenge in this appeal is to the judgment of convicUon and order of sentence dated 29.8.2005, passed by the 4th Additional Sessions Judge (FTC) Raigarh (CG) in S.T.No.34/2005, whereby and whereunder the leamed Additional Sessions Judge, after holding the appellant guilty for commission of culpabte homicide amounting to murder of one Collector Manjhi, convicted ttie appellant under Section 302 of the IPC and sentenced for life imprisonment and fine of Rs.200/-, in defautt of payment of fine to further undergo R.l. for 2 months. 2. The conviction is impugned on the ground that without there being any iota of evidence sufficient for conviction of the appellant, the tearned AddiUonal Sessions Judge has convicted and sentenced the appellant as aforesaid mentioned and thereby committed illegality. 3. As per case of prosecution, on fateful day of 12.01.2005 at about 6.00 pm, the appellant assaulted by axe over the neck of Collector Manjhi (since deceased) and caused a slngle blow and thereby caused hls instantaneous death. Mansingh (R/V-3) went to Police Station and lodged FIR vide Ex. P/2 and merg vide Ex. P/14. The Investlgating Officer left for the scene of occurrence and after summoning the witnesses inquest oveis the dead body of the deceased was prepared vide Ex. P/6. Spot map was; prepared vide Ex. P/4. Plain soit and blood stained soll was recovered from the spot vide Ex. P/7. Dead body was sent for autopsy to C.H.G. Gharghoda vide Ex. P/13, where Dr. Prachi Bhagat (PW-9) conducted autopsy vide Ex. P/11 and found one incised wound of8 x 4 x 3cm aml 5 cm betow the left ear; blood was coming out frpm the wound. Axe snatched from the appellant from the spot was seized from Mansingh vide Ex. P/3. Statements ofthe wftnesses were recorded under Section 161 of the Code ofCriminal Procedure, 1973 (in shortthe Code). 4. After completion of investigation, charge sheet was fiied before the Chief Judicial Magistrate Raigarh, who in turn, committed the case to the Court of Sessions, Raigarh from where the learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution examined as many as 12 witnesses. Accused was examined under Section 313 ofthe Code, in which, he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. • r 6. After affording opportunity of hearing to the parties, the leamed Additional Sessions Judge convicted and sentenced the appeltant as aforssaid mentioned. 7. We have heard Shri Sachin Singh Rajput, leamed counsel for the appeiiant and Smt. Madhu Nisha Singh, leamed Panel Lawyer for the State, perused the judgment impugned and record ofthe trial Court. '"t. 8. Learned counsel for the appellant vehemently argued that in the light of evidence of Mayaram (PW-2), Mansingh (PW-3) and Fuleshwari Bai (PW-12) wife of the deceased. he is not disputing the fact that Bis appellant has not caused the single blow upon the left side ofthenedtrt the deceased and thereby caused his homicidal death. He furtherargued Shat as per the evidence of prosecution witnesses, jact of the appellant does not travel beyond the scope of Section 304 Part II ofthe IPC. 9. On the oUier hand, leamed counsel for ttie State vehemenUy opposed these arguments and submitted ttiatthe appellant has causad homicidal death amounting to murder of the deceased- Collector Manjhi and court below has rightly convtcted and sentenced the appeltant as aforesaid mentioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicldal death as a result of fatal injury found over the body of the deceased- Collector Manjhi has not been substantially disputed on behalf of the appellant, on the other hand, it is established by the evidence of Dr. Prachi Bhagat (PW-9) and autopsy report Ex. P/11 and death was homicidal In nature. 12. As regards complicity of the accused/appellant in crime in que^ton is concerned, the appellant has not disputed the aforesaid tact and it is also estabtished by the evidence of Mayaram (PW-2), Mansingh (PW-3) and Fuleshwari Bai (PW-12) wife ofthe deceased. 13. As regards motive is concerned, motive only aidsin criminality, in case of direct evidence it losses ils importance. MoUv®can be infeired on the basis of weapon used, part of the body effected, nature of injury and other similar circumstances. 14. In the present case as per evidence adduced on behalf of the prosecution, appellant came and caused one btow of axe <wer neck below left ear of the deceased. As per evidence of para 7 of Fuleahwari Bai (PW-12) wife of the deceased, on account^f etecUon dfeputa, the appellant and the deceased were quarrellng and in couree of quarml, present appellant caused the aforesaid singte blow to (he deceased. This shows that the appellant has not caused the injury with intent to cause death of the deceased. Even no bonny injury was found over the vital parts i.e. blood vessels, trachea and It were not found cut, but at ttietime of causing such injury appellant was having knowledge that by his aet the deceased may die. In these circumstances, act of the appeflant does not travel beyond the scope of Section 304 Part II of the IPC. White convicting and sentencing the appellant under SecUon 302 of the IPC, Court below has not considered the aforesafd aspect <rf the case and thereby committed illegality. 15. For ttie foregoing reasons, the appeal is partly allowed. Gonvtetion of the appellant under Section 302 of the IPC is altered into Section %M Part II of the IPC and he is sentenced for R.l. for the period already undergone i.e. for 7 years and 4 months and the appellant is incustody since 17.1.2005 till today. The appellant be released forthwlth, if not requlred in any other case. —-— — Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge s.units