- '^ s% 1 ;•/ ^ !l-,. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA SE HON'BLE MR. RANGNATH CHANDRAKAR, JJ. APPELLNAT IN JAIL RESPONDENT CRIMINAL APPEAL N0.392/2004 Soman @ Kumhada S/o Dhoi Gada, aged 35" years, R/o Dhobipara Mardpal, Distt. Bastar (C.G.). State of Chhattisgarh through ' P/s Mardpal Distt. Bastar (C.G.j. Vs CRIMINAL APPEAL UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE, 1973. Present.:- Ms. Kiran Jain, Advocate for the appellant. Mr. J.A. Lohani, P.L. for the State/respondent. JUDGEMENT (Passedon 05/09/2011) The following judgment of the Court vvas passed by ,P. Sharnia, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 31/12/2003 passed by Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Trial No. 50/2003 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide araounting to inurder of Janturam, convicted the appellant under Section 302 of the Indian Penal Code rigorous imprisonment for life. sentenced _._. ^_t^ ^ Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the prosecution, 'on fateful day of 5/11/2002 on the eve of Diwali festival, on the ground of customary music & dance dispute took place between PW3 Ram, Priest of temple and appellant Soman then he snatched the stick and caused injury over occipital region of Janturam (since deceased), Janturam fell down and become unconscious then immediately PW3 Ram went to the Police Station and lodged First Information Report vide Ex. P-6 recorded under Section 324 of the Indian Penal Code. Janturam was examined by PW1 Dr. O.P. Parchha and found Haemotonia of 3 x 2 c.m. over occipital region, abrasion of2 x2 x '/2 c.m. over right shoulder, his general condition was poor &, pupils were diluted. He was referred to the District Hospital but Janturam died during traveling. Death was intimated vide Ex. P-2. Marg intimation was recorded vide Exs. P-10 & P-11. After summoning the witnesses vide Ex. P-4, inquest over the dead body qf Janturam was prepared vide Ex. P-3. Dead body of Janturam was sent for autopsy to Primary Health Center, Kondagaon where PW6 Dr. R.P. ~ Singh, conducted autops)? vide Ex. P-8 and found aforesaid injuries noticed by PW1 Dr. O.P. Parchha as Ex. P-1 along with fracture over occipital bone. Spot map was prepared vide Exs. P-9 & P-14. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Kondagaon who in turn committed the case to the Court of Sessions, Bastar at Jagdalpur. 5. In order to prove the guilt of the appellant prosecution examined as many as 9 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, learned Sessions Judge, Bastar at Jagdalpur (C.G.) has convicted and sentenced the appellant .as aforementioned. 7. Ms. Kiran Jain, learned counsel for the appellant and Mr. J.A. Lohani, P.L. for the State/respondent are heard. Judgment impugned and record of the Court bglow perused. 9. 10. 11 Learned counsel for the appellant frankly submits and admits that in the light of evidence of PW2 Santuram, PW3 Ram & PW4 Sugan Bai, she is not disputing the fact that appellant has not caused single blow by stick over the back of head of Janturam and has not caused his homicidal death but submits that act attributed to the appellant when he was under intoxication and other persons had'also consumed intoxicating liquor as prevailing in their custom at the time of such function and single injury shows that he has not committed culpable homicide amounting to murder of Janturam and his act does not traveled beyond the scope of under Section 304 Part-II of the Indian Penal Code. On the other hand, learned Panel Lawyer for the respondent/State opposed the criminal appeal. , In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury found over the head of deceased Janturani has not been substantially disputed on behalf of the appellant on the other hand, otherwise also esfablished by the evidence of PW1 Dr. O.P. Parchha, medical report Ex. P-1, PW6 Dr. R.P. Singh & autopsy report Ex. P-8 and death of Janturam was homicidal in nature. 12. As regards the complicity of appellant in crime in question, learned counsel for the appellant does not disputed the homicidal death of Janturam caused by appellant even otherwise same is established by the evidence of PW2 Santuram, PW3 Ram & PW4 Sugan Bai who have categorically deposed that at the time of such function, present appellant snatched the stick and has caused single blow over the head of Janturam although, he was not having any grudge or cause for causing such homicidal death. 13. As regard the question of intention is concerned, intention can be gathered on the basis of nature of injury, use .of force, weapon used, part of the .body affected and other like circumstances. 14. Evidence of present case reveal that at the time of incident, appellant Soman, deceased Janturam & all villagers were celebrating Diwali festival in accordance with their custom, most of the persons have consumed liquor and all of a sudden on account of beating drum (customary music), incident took place and appellant has caused single blow to Janturam resulting into his death shows that appellant has not caused injury with intent to cause death of.Janturam and his act squarely - falls within the ambit of under Section 304 Part-II of the Indian Penal Code. While convicting and sentencin; the appellant under Section 302 of the Indian Penal Code, Court below has not considered the aforesaid aspects of the case and thereby comrrTitted an illegality. 15. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 part-II of the Indian Penal Code and is sentenced to the custodial period. Present appellant is in custody since 9/11/2002 and has completed niore than 8 years, he be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge .-IL