"^ .""J ^ ?^ HIGH COURT OF CHHATTISGARH. BILASPUR **.Nl APPELLANT: (InJail)- RESPONDENT: Criminal Appeal No.237 of 2006 Mehattar, S/o Baiju Gond, age 30 years, R/o Village Maasbaras Schoolpara, Police Station Antagarh, District North Bastar Kanker(C.G.) Versus State of Chhattisgarh, Through Police Station Antagarh, District North Bastar Kanker (C.G.) {Criminal appeal under Section 374 (2) Criminal Procedure Code 1973} Present: Dr. Shailesh Ahuja with Mrs. Anju Ahuja, counsel for the appellant. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'blelVlr. R.L.Jhanwar, JJ ORALJUDGMENT (5-3-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 25-2-2006 passed by the Additional Sessions Judge (FTC), Kanker in Sessions Trial No.50/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Chamraram, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for three months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 13-11-2004 at about 5.40 p.m. the appellant & Chamraram (since deceased) were quarrelling with each other, thereafter, on sudden provocation, the appellant assaulted Chamraram by bamboo stick over his chest & head. Chamraram was brought out up to Antagarh hospital, but he died on 14- 11-2004. Wife ofthe deceased Smt. Hemlata (PW-1) lodged merg vide ...^.4;..^ ^^'3^ &w Ex.P-2 and FIR vide Ex.P-1. After summoning the witnesses vide Ex.P- 3, inquest over the dead body of the deceased was prepared vide Ex.P- 9. Spot map was prepared vide Ex. P-4. Bloodstained and plain soil were seized from the spot vide Ex. P-6. Dead body was sent for autopsy to Community Health Centre, Antagarh vide Ex.P-13. Dr. Sandeep Dwivedi (PW-15) conducted autopsy vide Ex.P-21 and fourid one abrasion of 7 % c.m. x 1 c.m. over left side of ribs (chest), bruise on forehead of 4 V-i' x 2 %", and both the parietal bones were found fractured. Mode of death was shock and death was homicidal in nature. During the course of investigation, the accused/appellant was taken into custody, he made discloserstatement of bamboo stick vide Ex. P-7 and same was recovered at his instance vide Ex.P-8. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bhanupratappur who committed the case to the Court of Sessions, Jagdalpur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as sixteen witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant frankly admit that in the light of evidence of the prosecution witnesses, they are not going to dispute the fact that theappellant has caused homicidal death of the deceased, but the appellant has not caused homicidal death of the deceased with intent to cause his death. Even as per FIR Ex.P-1 and merg Ex.P-2, both the persons (the appellant & the deceased) were quarrelling and on sudden provocation, the appellant has caused two injuries that too by bamboo stick. This shows that the appellant has not caused homicidal death of the deceased with intent to cause his death and the act of the appellant squarely falls within the ambit ofSection 304 Part-11 ofthe IPC. ^S^M-iS Soma 9. On the other hand, learned State counsel opposes the appeal and submits that the appellant has committed murder of Chamraram and the trial Court has rightly convicted & sentenced the appellant. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.Although, in the present case, homicidal death of deceased Chamraram, that too caused by the appellant, has not been substantially disputed on behalf of the appellant, but it is established by evidence of Dr. Sandeep Dwivedi (PW-15) and autopsy report Ex.P-21 that death of deceased Chamraram was homicidal in nature. 12.Evidence of Smt. Hemlata (PW-1), Sukdi Bai (PW--2), Smt. Ramula Bai (PW-3) & Bisantin Bai (PW-4) are sufficient for drawing inference that the appellant has caused homicidal death of deceased Chamraram. 13.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. . 14.1n the present case, there was no enmity or dispute between the appellant & the deceased. As per Ex.P-1 lodged by wife of the deceased Smt. Hemlata (PW-1), on account of dispute arose on the spot, on the spur of the moment and on sudden provocation, the appellant has caused two injuries by bamboo stick upon the deceased. This evidence clearly reveals that the appellant has not caused homicidal death of the deceased with intent to cause his death and his act squarely falls within the ambit of Section 304 Part-11 of the IPC. While convicting the appellant under Section 302 of the IPC, the trial Court has committed illegality. 15.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 ofthe IPC is altered to Section 304 Part-11 ofthe IPC. The appellant is in custody since 15-11-2004 and has completed six years and more than three months in jail. He is hereby sentenced to imprisonment for the aforesaid custodial period already undergone by him i.e. since 15-11-2004 till date. He be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L.Jhanwar Judge /