@ HIGH GOURT OF ¢HHATTISGARH AT BILASPUR Criminal Appeal No. 92912004 APPELLANT Teklal s] o Klishna Satuami @ Dhanmantri Samami, aged 4O years, 5» resxdant of Bhalsamuda P S l§awagarh Dlstnct Durg (CG) In jail VERSU3 The State of Chhattisgarh‘ Through the Disirict Magistrate Burg (CG). CRIMINAL APPEAL UNDER SECTION 3'74- ! 2 1 OF THE GODE OF CRIMINAL PROCEDURE RESPONDENT Appearance Smt Indu‘a Tnpatkn, counsel for the appellant. Shn Arun Sao, Government Advocate ior the State. ‘ Division Bench:- Hon’gle Shri T.P. Sharma as Hon’ble shti R.L.Jhanwar,JJ ‘ ORAL JUDGMENT (o5. 10.2010) Per T.P.Sharma, J. 1. Challenge m tl’ns appeal 1s to the Judgnent of convmtlon and orger of sentence dated 229 2004 passed by the Addmonal Sess1ons Judge, Bemetara, Durg (CG) m Sesslons ’lnal No 97/2004, Whemby and whereunder the leaxned Addmonal Sessions Judge after holdmg the appellant gmlty for comxmssmn of culpable homclde, amountmg to muxder of Bansmdas @ BanshJlal conv1cted the appellant under Secuon 302 of the [PC and sentenced to undergo mpnsonment for hfe and to pay a hne of Rs.2000/-, in default of payment of ®e to further undergo R.1. for ‘3 months. 2. The conviction is impugned on the ground that without any iota of evidence, the Court below has convicted and sentenced the appellant as above and themby committed illegality. k 3. The case of the prosecunon 1n bnef 1s that on the fateful day r; of 27 2 2004 at about 12 30 at noon, Pyaxelal (PW 1) was sunng on the cot of the accused/appellant 1n Ins Kothar (Badt). Banshidas @ Banshilal came there and tried to sit on the cot. He was takmg tobacco w1th Pyarelal At that nme, appellant came and asked Banshldas @ Banshdal Why he 1s smmg on Ins cot and he started assaulnng hnn by the suck wlnch he was holdmg, as a result of wlnch Banslndas @ Banshllal became unconsclous Pyarelal (PW 1) took h1m to the hospltal for treatment and lodged FIR v1de Ex P/ 1 Dunng the course of treatnent Banshtdas @ Banshdal died on 28 2 2004 at about 6 45 pm Death was mhmated to Pohce Stanon v1de Ex P] 16 Merg was mottled v1de Ex. P/ 17. After summomng w1tnesses Vlde Ex. P/7, mquest over the dead body of the deceased was pmpamd vide Ex. P/8. Dead body was sent for autopsy to Govt Hospital, Durg. Dr. AVP. Sawant (PW~14) conducted autopsy vide Ex. P/ 17 and found following injuries : i. Stitched wound of 6 cm long on right side of panetal region. Confusion of 6 x 6 cm over upper part of the left eye m Contusion of 6 x 6 cm over upper part of the light eye iv. Haematoma of 10 x 10 cm was found over right parietal region Cause of death was due to injuries on the head. Spot map was prepared vide Ex. P/2. Patwari prepared spot map vide Ex. P/s. The appellant produced Bamboo Stick; same was recovered at his mstance v1de Ex P/4 Blood stained and plain sod was “recovered v1de Ex Pi5 Sealed clothes of the deceased were sewed Vlde Ex PI 10 Selzcd arucles were sent for chemlcal exammatlonv I v1de Ex P/ 14 Merg was recorded v1de Ex P13 Smments of thég 9 w1tnesses wem mcoxdcd under Secuon 161 of the Code of Cummal x 4. After completion of investigation, charge sheet was iiled before the Judicial Magistmte First Class, Bemetara who in turn, ~ commltted the case to the Court of Sess1ons, Durg, fmm Where, the learned Addltlonal Sessmns Judge mcelved the case on tranefer for tnal. procedure, 1973 (in short mode”). 5. In oxder to prove the guilt of the accused/appellant, prosecution has ekamined as many as 15 witnesses. Accused was examined under Section 313 of the Code, in which, he admitted that he has caused one injury by the stick to the decease 6. After ah‘oniing opportunity of healing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. We have heard Smt Indira ’l‘ripathi, learned counsel for the appellant and Shn' Arun Sao, learned Government Advocate for the State, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that 1n t: e‘hght of ewdence of Pyarelal (PW-1) and Knshnadas (PW- 15), appellant 1s dispuhng the fact that he has caused injury to the deceased However the appellant has not commuted culpable v hom1c1de amounting to murder of the deceased. When he saw that the deceased was sifting on the cot in his kothar, he got annoyed and caused one injury by stick to the deceased. He was taken to hospital for treatment, where he died on account of failure of d. immanent and not as a result of Injury caused by the appellant “ therefore, the act of the appellant does not navel beyond Secnon‘ 304 Part I of the IPC. 9. 0n the other hand learned counsel for the State opposeé these arguments and submtted that the appellant h1mself has admltted that he has. caused one mjuxy to the deceased and » prosecution has also proved the fact that appellant has caused injury to the deceased by examining Pyarelal (PW-1) and Krishnadas (PW- 15). After appreciating the evidence learned Additional Sessions Judge has lightly convicted and sentenced the appellant for commission of the oifence of mmder of Banshidas @ Banshilal. 10. In oxder to appreciate the axguments advanced on behalf- of the yarties, we have examined the evidence adduced on behalf of the prosecution. 11 In the present case, homicidal death as a result of fatal mJmy to Banslndas @ Banshilal has not been substantially i disputed on behalf of the appellant on the other L/_\A é; h estabhshed by the ev1denw of Dr AP Sawant (PW-14) and autopsy report Ex P/ 17 and death was homtmdal n1 nature 12. As regards comphc1ty of the accused] appellant 1n cnme in question 1s concerned ev1dence of Pyarelal (PW~ 1) and Knshnadas u; (PW 15), who are eye-mtnesses, present on the spot at the nme of moident is summent for drawmg an mfexence that the appellant 1s the person who has caused fatal mjuxy to Banslndas @ Banshilal Even appellant has admitted 1n his examination under Sechon 313 of the Code While answering the quesnon of the court that he has caused injury by stick to Banshidas @ Banshilal. “ @ 13. As mgards the questlon of mouve mauve only a1ds n1 cnmmahty, 1n case of dmct cv1dence 1t loses (its Importance Motlve can be Inferred on the hams of the weapon used part of the body eoected, nature of mJuIy and other sumlar ctrcumstances 14. In the plesent case, as pér vemion of the FIR, deceased was situ’ng in the Kothar of the appellant along with Pyaxelal (PW— 1). He was taking tobacco at that time, appellant came and asked Why he is sitting on the cot and he got annoyed and caused injury over the head of the deceased. As per evidence of Pyamlal (PW- 1) while he was sifting in the Kothar of the appellant the deceased cmne and by reckless act of the deceased mpe of the cot was broken, at that ume, appellant came and assaulted the deceased by stick fmm h1s back over the head of the deceased and also assaulted over his hand. He took the Injured to hospltal. As per prosecuuon case; he died on second day. The entire evidence adduced on behalf of the prosecuh‘on shows that the incident took place all of a sudden when the appellant saw the deceased sitting in his kothar on the cot then he got annoyed and caused injury to the deceased. 15. The aforesaid fact shows that the act of theiappellant does not travel beyond Secn'on 304 Part I of the IPC. While convicting the appellant under Section 302 of the IPC, learned Additional Sessions Judge has not considered the motive and circumstances in which appellant has caused injury to the deceased {and thereby committed illegality. i 16. Consequently, the appeal 1s partly allowed Conwcnon ott‘ the appellant under Section 302 of the IPC 1s alteied into Section 304 Pait I ofthe IPC and he 1s sentenced for 8 years R.I. Sdl- SdF ‘”EPJ§dARNLA’ sunita R.L. Jhanwar Judge Judge . .