HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLESHRI R.L.JHANWAR.JJ. Criminal ADpeal No. 792/2002 APPELLANT/ (iniail) RESPONDENT Jagdhari,S/o Shri Taturam, aged about 28years, R/o Vill. Karauti, Police Station Jhilmil, Dist. Surguja (Chhattisgarh) VERSUS State of Chhattisgarh, Through Police Station Jhilmil, Dist. Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (210F THE CRIMINAL PROCEDURE CODE Appearance: Ms. Pushpa Dwivedi, counsel forthe appellant. Shri Neeraj K. Mehta, P.L. forthe State. ORAL JUDGMENT (Passedon 09.11.2010) Per T.P.Sharma, J. Chailenge in this appeal is to the judgment of conviction and order ofsentence dated 29.04.2002 passed inSessions Case No. 382 of 2001 by the 6th Additional Sessions Judge (F.T.C.), Surajpur whereby and whereunder after holding the appellant guilty for commission ofculpable homjcide amounting to murder of Ramavtar, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced him to life imprisonment. 2. The conviction of the appellantis impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforesaid and therebycommitted illegality. 3. As per case of the prosecution, on fateful night of 30.08.2001 at about 9.00 P.M. Ramavtar (since deceased) was present in his house along with his wife during the festival of "Karma". Ramsevak, brotherof Ramavtar, went to the house of Ramdev and was discussing with the wivesof Ramdev and Sahdev. At the same time, appellant came there and started quarrelling with Ramdev. On this, Ramsevak intercepted between them and the appellant left place. Thereafter, again the appellant came in front of the house of Ramsevak and was abusing him in filthy language to Ramsevak, brother of Ramavtar. On hearing filthy abuses used by the appellant near the house of Ramdev, Ramavtar (since deceased) came out of his house and shouted who was abusing his brother. His wife P.W.5 Saraswati Deyi was also accompanying him. When appellant saw Ramavtar (since deceased) he assaulted him by axe over his chest, on this Ramavtar fell down and died. The incident was seen by P.W.2 Ramsevak, P.W.3 Ramdev, P.W.4 Smt. Bishunbai and P.W. 5 Saraswati Devi, wife ofthe deceased Ramavtar. F.1.R. Ex.P.1 was lodged by P.W.1 Prem Shankar Mishra on second day i.e. 31.8.2001. Merg was recorded vide Ex.P.2. Investigation Officer left for scene of occurrence and after summoning witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex.P.4. Spot map was prepared vide Ex.5. Dead body was sent for autopsy to Govemment Hospital, Bhaiyathan vide Ex.P.9 where Dr. S.P.Paikra P.W.9 conducted autopsy on the dead body of Ramavtar vide Ex.P.9A and found one incised wound of 4 1/2 x 1 x 4" deep \A^IS present over chest and bone beneath injury, left lungs, main artery were also found cut. 4. During the course of investigation, bloodstained and plain soils wererecovered from the spot vide Ex.P.7; one axe was recovered from the spot vide Ex.P.8; bloodstained cloths ofthe appellant were recovered vide Ex.P.10. Sealed cloths of the deceased were recovered vide Ex.P.11. Seized articles were sent for chemicalexamination vide Ex.P.14 and presence of human blood was confirmed on axe and underwear of the accused. 5. Statements of the witnesses were recorded under Section 161 of the Criminal Procedure Code and after completion of investigatiori charge sheet was filed before the Court of J.M.F.C. Surajpur,who in turn committed the case to the Court of Sessions Judge. The learned Additional Sessions Judge received the case on transfer for its trial. ^yy^. -^) @ IN»- 6. In order to prove the guilt of the appellant, prosecution has examined as many as 10 witnesses. The accused was also examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearjng against him and pleaded his innocence and false implication in crime in question. 7. After affording opportunity to the parties and hearing them, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid in paragraph 1 (supra) ofthisjudgment. 8. We have heard learned counselfor the parties at length and have perused the record of the Court below and impugned judgment. 9. Learned counsel for the appellant vehemently argued that the incidenttook place at dark night in rainy season and nobody seen the incident. Theevidenceof P.W.2 Ramsevak, P.W.3 Ramdev, P.W.4 Smt. Bishunbai and P.W.5 Smt. Saraswati Devi, alleged eye witnesses, does not inspire confidence and trustworthy and is not safe to rely. The evidence of aforesaid witnesses may be sufficient for casting suspicion that the appellant may have committed murder of Ramavtar but is not sufficient for drawing conclusion that only the appellant committed the offence and except him nobody committed suchmurder. Shefurther argued that prosecution has not proved the motive of offence. In other words, as per the case of the prosecution, the appellant was abusing Ramsevak and was threatening him to kill but all of sudden, Ramavtar camethere,thenhesuddenlyassaultedhimandcausedoneinjurytohim, which shows that there was no jntention of motive of commission of culpable homicide amounting to murder of Ramavtar. Lastly, she urged that present appellant is in custody since 01.09.2001 and has completed more than 9 years imprisonment, therefore, the appellant be released from N'- 11. On the other hand, learned counsel for the State opposed the appeal and submitted that the evidence of P.W.2 Ramsevak, P.W.3 Ramdev, P.W.4 Smt. Bishunbai and P.W.5 Smt. Saraswati Devi is sufficieht for drawing an inference that only the appellant has caused fatal injury and committed murder of Ramavtar; He further argued that after [ •^'^ appreciating the evidence available on record, the Court below has rightly convicted and sentenced the appellant as aforesaid. 12. In order to appreciate the arguments advanced by the parties, we have examined the evidence adduced by the prosecution. In the present case, homicidal death as a result offatal injury overthe chest of Ramavtar has not been substantially disputed on behalf ofthe appellant, but on the other hand has been established by theevidence of Dr. S.P.Paikra P.W.9 and his report Ex.P.9A and the death of Ramavtar was homicidal in nature. 13. As regards complicity of the appellant in crime in question, conviction of the appellant is based on the direct evidence of eye witnesses. In the present case, P.W.5 Saraswati Devi, wife of the deceased, whowas present on the spot has deposed that when her husbandafter hearing filthylanguage hurled by the appellant came out of house. She had also accompanied him. When her husband reached in front of house bf Ramdev, all of sudden, the appellant assaylted him by axe over his chest and as a result of such sudden blow, Ramavtar fell down and died.At the same time, Qther eye witnesses P.W.2 Ramsevak, P.W.3 Ramdev, P.W.4 Smt. Bishunbai, who were also present on the spot hadwitnessed the incident. The evidence of P.W.5 Saraswati Devi has been substantially corroborated by the evidence of P.W.2 Ramsevak, v P.W.3 Ramdev, P.W.4 Smt.Bishunbai, who have categorically deposed thatfirst ofall, the appellantabused Ramsevak P.W.2, thereafter he came in front of house of Ramavtar and again he abused, then they heard the sounds of deceased Ramavtarand when they opened the doors, they saw appellant assaulting Ramavtar by axeand caused his death. The defence has cross-examined these witnesses at length especially relating to darknessand non-availabilityof light but P.W.1 Prem Shankar Mishra has admitted in paragraph 9 of hjs evidence that lantern was burning nearthe place of incident. Even otherwise, P.W.2 Ramsevak, P.W.3 Ramdev, P.W.4 Bishunbai and P.W.5 Saraswati Devi had seen incidentwith close distance and they have also heard the sound of the appellant and Ramavtar. The evidence of these witnesses is sufficient for drawnan ;^y'^.: m^^ '1f^^.:^^ ^Sf. .^^•- inference that the appellant caused fatal injury and due to such fatal injury the deceased died on thespot. 14. As regards the question of motive, in case of direct evidence, motive loses its importance, even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case,as per the case of prosecution, the appellant having grudge against Ramsevak, he was abusing Ramsevak in filthy language. The appellant was tryingto cause injury or murder of Ramsevak and when suddenly Ramavtar came of house, then the appellant assaulted Ramavtar and caused single blow. Thereafter he fled from the spot. Thus, the appellant committed homicidal death of Ramavtar, when all of sudden Ramavtar came, then he assaulted Ramavtar and caused injury to Ramavtar without premeditation and on spur of moment. While causing such injury, he was having knowledge that as a result his act,Ramavtar may die, therefore, the act of the appellant does not travel beyond the scope of Section 304 Part 1 of the I.P.C. 15. The Court below has not considered the most material aspect relating to motive for commission of pffence and thereby committed illegality in convicting the appellant under Section 302 ofthel.P.C. 16. Onclose scrutiny of the evidence available on record,weare ofthe opinion that the act of the appellant does not travel beyond thescope of Section 304 Part lofthe I.P.C. 17. Consequently, the appeal is partly allowed. Conviction ofthe 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. The appellant is in custody since 01.09.2001 and has completed morethan 9 years. The appellant is sentenced to 9 years, which the appellant has already yndergone. He be released forthwith, if not required in any othercase. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge