ml ;!!N:]']^I: .;,j;':S2B;[i, .i " s| %. s,. lia-':R;t(rf':' '^r '-"y HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARIWA AND HON'BLE SHRI R.L.JHANWAR, JJ. Crimjnal appealJMo.560^f 2005 APPELLANT RESPONDENT Champu Nishad, S/o Shri Agnuram Nishad, Aged about 38 years, R/o village - Parkhanda, Police Station Kurud, District Dhamtari (C.G.) VERSUS State of Chhattisgarh, Through Police Station - Kurud, District Dhamtari (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURECODE ^ Appearance: Shri K.K.Singh, counsel for the appellant. Shri Ashish Shukla, G.A. for the State. ^ Per T.P.Sharma, J. ORAL JUDGMENT (Passedon 22.09.2010) The challenge in this appeal is to the judgment of conviction and order of sentence dated 05 May,2005 passed in S.T.No.24/2004 by the Additional Sessions Judge, Dhamtari, Sessions Division Raipur whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Khilendra Sahu, the Court belowconvicted the appellant under Section 302 of the I.P.C,/ahd sentenced to imprisonment for life with fine of Rs.100/-. 2 . The convicfion is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on fateful day of 18.11.2003 at abbut 1.00 p.m. when the deceasedKhilendra was present in his kitchen garden, he saw some children entering the Bad; for plucking Guava and o l^;^^f<^li^K%s ^^'. E?igB: :'PR: :':':.i';y'::L::'i' iH; went there. Sometime thereafter, some altercation took place between Khilendra and the appellant Champu, who was found capturing fishes near Bacfr' of Kihilendra. Then the appellant took out one wooden piece (danda) and assaulted on the head of Khildra from back side, due to which, Khilendrafellon the ground and the persons gathered there rushed towards spot. Blood was coming from the injuries. The appellant was in angry condition. Khilendra died on the spot. P.W.8 lodged F.1.R. Ex.P.7. Merg intimation was recorded vide Ex.P.16. Investigating Officer left the scene of occurrence and after summoning the witnesses vide Ex.P.2, inquest over the dead bodywas prepared vide Ex.P.3. Dead body was sent for autopsy to Primary Health Center, Kurud vide Ex.P.15 "A" and Dr.V.K.Pandey P.W.14 conducted autopsy and found the following injunes: 1. Lacerated wound of 3" x 1" oyer the back side of the head upto bone deep.. 2. Contusion on the right side of the face with fracture of upper side jaw. Lower side jaw was also found fracture. 3. Blood clot was present over the face and blood was coming from earand nose. Cause of death was head injury. Bloodstained soil and plain soil were recovered from the spot vide Ex.P.1. Patwari prepared spot map 6. Sealed cloths of the deceased were recovered vide Ex.P.8. Accusedwas taken in to custody and made disclosurestatement Ex.P.11, on the basis of which, burning piece of wood was recovered vide Ex.P.12. Bloodstained cloths of the appellant were recovered vide Ex.P.13. Investigating Officer made spot map vide Ex.17. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation.charge sheet was filed before the Chief Judicial Magistrate, Dhamtari, who in turn committed the case to the Sessions Judge, Raipur. The learned Additional Sessions Judge, Dhamtari received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 15 witnesses. The accused appellant was also examined under Section 313 of the Code in which he denied the cireumstances appearing againsf him and claimed his innocence and false implieation. 6. After affording opportunity of hearing to the parties, the learned Additional SessiQns Judge convicted and serrtenced the appellant as aforementioned. 7. Learned counsel for the appellant as well as respondent/State are heard at length. Perused the impugned judgment and record of Court below. 8. Shri K.K.Singh, learned counselfor the appellant submits that in the light of evidence of P.W.6 Jaimat Bai, mother ofthe deceased, P.W.8 Ashok Kumar Sahu and P.W.9 Mohan, he is not disputing the fact that the appellant has caused death of Khilendra by assaulting him with a burning wooden piece but is disputing the conviction of the appellant under Section 302 ofthe I.P.C. Me further argued that as per the evidence of aforesaid witnesses, some children were committing theft of Guava from the kitchen garden of Khilendra and he got annoyed. The accused was also present near Bad/ of deceased and some altercation took place between Khilendra and the appellant and then the appellant took a burning wooden piece lying nearby area and caused one injury over the back of head, as a result of such injury, the deceased Khilendra fell down and reeeived injury over his face. As a result of such injury, Khilendra died thereafter. Present appellant has not caused any injury onthe head of the deceased with intent to kill him but has caused the injury in a heat of passion and sudden provocation, therefore, the act of appellant yid not come under Section 302 of the I.P.C. and comes under the purview of Section 304 Part 1 ofthel.P.C. 9. On the other hand, Shri Ashish Shukla, learned counsel for the respondent / Stateopposed the appeal and argued that present appellant caused fatal injury on the head ofthe deceased thereby causing his death, therefore, the Court below rightly convicted and sentenced the appellant. SSS^IBSBIBB SS9iSSSSSS@s 10; In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence minutely. In the present case, homicidal death of the deceased as a result of fatal injury found overthe head ofthe deceased Khilendra has not been substantially disputed on behalf ofthe appellanf, butwas well established by the evidence Dr. V.K.Pandey P.W.15 andhis autopsy report Ex.P.15 which revealed cause of death was due to head injury and death was homicidal in nature. ^ 11. As regards the complicity Qf the appellant in crime in question, conyiction is based on the evidence of P.W.6 Jaimat Bai, mother of the deceased, P.W.8 Ashok Kumar Sahu and P.W.9 Mohan, who have deposed that some children were committing theft of Guavas entered the kitchen garden of the deceased Khilendraand the appellant was also present there and between Khitendra and the appellant some altercation took place in which theappellant took out a burning wooden piece lying nearby place of incident and assaulted Khilendra over his back side of head. P.W.6 Jaimat Bai deposed that the appellant has repeated assaults on the deceased but as per the evidence of P.W.8 Ashok Kumar and P.W.9 Mohan, the appellant has only given a single blowover the back of Khilendra who fell down. Theautopsy report and evidence of Dr. V.K. Pandey P.W.14 also revealed that one lacerated wound was found over the back of head of the deceased and in case the appellant fell down the injury found over the face could be caused due to fall on the ground. The evidence of above two witnesses is sufficient to establish the fact that present appellant has caused only one injury over the head of the deceased and deceased died due tosuch injury. 12. As regards motive is concerned, as per evidence of prosecution; the deceased Khilendra went to kitahen garden where some children were committing theft of Guavas and the present appellant was alsd found there. There was some altercation took place between the appellant and the deceased and the appellant lifted one burning Wooden piece and assaulted the deceased over his backsideofhead. The appellant hasnot made the assault with intent to kill the deceased and there Was no oecasion for him causing such injury. The incideht took place all of sudden on thespur of moment especially on the ground of theft of Guavas. In these circumstances, the actattributed to the appellant shows that he has n6 intention to kill the deceased, therefore, the offence alleged against him cannot fall within theambit of Section 302 I.P.C. The offence allegedagainst appellant cannot travel beyond the scope of Section 304 Partlofthel.P.C. 13. While convicting the appellant, thelearned Additional Sessions Judge has not considered the circumstances in which offence was committed and thereby committed illegality. 14. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. and the sentence awarded thereunder is altered to Section 304 Part 1 ofthe I.P.C. and sentenced him to R.l. forSyearswith fineofRs.1000/-, in default to further undergo Rl for one year. The appellant is in custody since 19.11.2003. He is entitledto setofsaid period. ~—-——___ ^dTa~~n n, sd/- TKS^nna " R'L'^anwar Judge'"" Judge ^ ^ o wa