.. M HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) ‘ Coram: Hon’ble Shri T.P. Sharma & M, Hon’ble Shri R.N. Chandrakar JJ. Criminal AgQeal No.555 of 2007 Rambilas son of Ram Sai Gond, aged about 38 years, occupation — agricuitun‘st, resident of village Baijnathpur, P.S. Odgi, Distt. Surguja (CG). ApQeliant (in jail) Vs. Respondent. State of Chhattisgarh through Police Station Odgi, District Surguja (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Shri Ramakant Pandey, counsel for the appellant. Smt’. Madhunisha Singh, Pane! Lawyer for the State. JUDGMENT (Delivered on 10—10—201 1) Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgntent of conviction and order of sentence dated 25-6-2007 passed by Second Additional Sessions Judge (FTC) Surajpur Distt. Surguja, in Sessions Trial No.362 of 2006, whereby and whereunder learned Second Additional Sessions Judge after holding the appellant guilty for the commission of culpable homicide, amounting to murder of Sitaram, convicted the appellant under Section 302 IPC and sentenced him ,gZ, to undergo life imprisonment and to pay fine of Rs.100/—, in defauit of payment of fine to further undergo RI for five days. 2. Conviction of the appeliant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appeliant as aforementioned and thereby committed iliegaiity. As per the case of prosecution, on fatefui day of 28-5-2006 at 11.00 a.m., the appellant aiong with deceased Sitaram and other person namely Ramdeen (PW/2) consumed liquor in the house of appellant and some altercation took place between the appellant and deceased relating to partition of ancestral property, then the appellant took out an axe and caused injury over the neck of deceased Sitaram as a result of which he fell down and died on the spot PW/2 Ramdeen went to Police Station Odgi and lodged merg intimation vide Ex.P/4 and first information report vide EX.P/3. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/1 prepared inquest over the body of the deceased vide Ex.P/2, spot map was prepared by Investigating Officer vide Ex.P/5, blood stained soil and plain soil were seized from the spot vide EXP/13, dead body of deceased was sent to autopsy to Community Health Centre, Odgi where Doctor S.N. Kujur (PW/16) conducted postmortem vide EXP/17 and found stab wound over neck extending from mastaid process to left jugular region 4” x 1” x 2" and opined that mode of death was shock and death was homicidal in nature. Blood stained axe was seized from the appellant vide Ex.P/12, Patwari prepared spot ltmmmmwwism A map vide Ex.P/13 and seized articles were sent for chemical examination to FSL, Raipur vide EXP/19. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After compietion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Surajpur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Second Additional Sessions Judge, received the case on transfer, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. ln order to prove the guilt of the appellant, prosecution examined as many as 17 witnesses. Accused person was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. After affording an opportunity of hearing to the parties, the learned Second Additional Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment Shri Ramakant Pandey, learned counsel appearing for the appellant vehemently argued that conviction is based on circumstantial evidence although initially as per case of prosecution, PW/2 Ramdeen was eye—witness but he has not ‘ ‘ supported the case of prosecution as eye-witness. Prosecution has not proved the complete chain of circumstances. The evidence @ adduced on behalf of the prosecution is not sufficient for drawing inference that only the appellant has committed culpable homicide amounting to murder of Sitaram. On the other hand, Smt. Madhunisha Singh learned Panel Lawyer appearing on behalf of the State opposed the appeal and submitted that the evidence of PW/2 Ramdeen and the fact that the injured dead body of deceased Sitaram was found in the house of the appellant, are sufficient to prove the guilt of the appellant and the court below has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the arguments advanced by learned counsel for 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 neck (vital part) of deceased Sitaram has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Doctor S.N. Kujur (PW/16) and autopsy report (EXP/17) that the death of deceased - Sitaram was homicidal in nature. As regards complicity of the appellantin the crime in question is concerned, conviction is substantially based on circumstantial evidence. As per evidence of PW/2 Ramdeen who lodged merg intimation and first information report vide Ex.P/4 and P/3 respectively, just before the incident, this witness was accompanied l by deceased Sitaram upto the house of appellant, thereafter, appellant and deceased Sitaram went inside the house of appellant A:3‘. “t l. mcmaa / and after some time injured dead body of deceased Sitaram was found in the house of appellant and thereafter this witness shouted and lodged merg intimation and first information report. He has admitted in para 9 of his cross examination that at the time of incident, brother of appellant, wife of appellant, wife of brother of appellant and mother of appellant were residing in the same house and they were also present at the time of incident. As per evidence of PW/6 Jaipal, just before the incident, deceased was present in the house of appellant along with appellant. The evidence of these witnesses clearly reveal that at the time of incident deceased has not visited the house of appellant or had not gone to the house of appellant to meet the other relatives of the appellant but he was sitting along with appellant, he had consumed liquor along with appellant, thereafter injured dead body of deceased was found in the house of appellant, at that time another person namely Ramdeen PW/2 was present in the house. These closed connected circumstances are sufficient for‘drawing inference that only appellant has caused homicidal death of deceased. As regards the question of motive is concerned, as per initial case of prosecution, especially mentioned in merg intimation (Ex.P/4) and hrst information report (EXP/3), firstly appellant along with deceased and other witnesses consumed liquor in the house of appellant, thereafter on account of partition of ancestral property some altercation took place between the appellant and deceased, then the appellant took out an axe and caused single injury over the neck of deceased which shows that initially there was no motive for causing injury to deceased, even they consumed liquor together, thereafter when altercation took place on account of partition of ancestral property, then the appellant has caused single blow over the neck of deceased which is sufficient for drawing inference that appellant has not caused homicidal death of deceased with intent to cause his death but at the time of causing such injury, that too by dangerous weapon axe over the neck (vital part), the appellant was having definite knowledge that by his act the deceased may die. The evidence and circumstances clearly reveal that the appellant has not committed homicidal death of the deceased Sitaram with intent to cause his death and the act attributed to the appellant does not travel beyond the scope of Section 304 Part ii of the IPC. While convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life, the trial Court has not considered the aforesaid most material aspect of the case and thereby committed illegality. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part ll of the IPC and he is sentenced toundergo Rl for six years with fine of Rs.1000/—, in default of payment of fine to undergo additional Rl for one month. He is in custody since 30-5-2006, he is entitled for set off as per law. . T' P- 3d]- Shall-ma, ‘ “j ‘ « ¥/ 7:, / ”sai- "1 Judge Raju