HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No. 265 of 2008 1. Bisouha Verma S/o Jhhadu Ram Verma, Aged about 67 years. 2. Radhey Shyam Verma S/o Bishouha Verma, aged about 27 years, Both resident of village Batang, P.S. Purani Bhilai, District Durg (C.G.) Appenants (In Jail) Versus State of Chhatlisgarh, Through : P.S. Old Bhilai, District Durg (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE) Respondent Present:- Mr. Vi‘vek Sharma, counsel for the appellants. Mr. Ashish Shukla, Govt. Advocate/Additional Public Prosecutor for the State. JUDGMENT (Delivered on 19‘5 October, 201 1 ) Per T.P.Sharma, J.:— I 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 22.01.2008 passed by the llnd Additional Sessions Judge, Durg, in Sessions Trial No.122/2007, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Malti Bai (since deceased) with common intention convicted under Section 302/34 of the l.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.500/- each, in default of payment of fine to further undergo . R.l. for one month. AU . Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegaiity. . As per the case of prosecution, on 21.03.2007 at about 4:30 pm at village Batang, police station Purani Bhilai, District Durg (C.G.), some altercation took place on account of throwing wastes in the drain of present appellants since considerable time and appellants assaulted deceased by crowbar & sticks, as a result of which she died on the spot. PW/1—Radhika Verma informed to police and lodged dehati nalisi vide Ex.P/1 and dehati merg vide Ex.P/2. Investigation officer left for scene of occurrence, after summoning the witnesses vide EXP/9, inquest over the dead body of deceased was prepared vide Ex.P/10. Dead body was sent for autopsy to District Hospital, Durg vide EXP/19. Dr. Lal Mohammad (PW/2) conducted autopsy vide Ex.P/3 and found flowing Injuries: 1. Lacerated wound of 6x1cm over left region of head. 2. Lacerated wound of 3x1 cm over the head. 3. I Fracture of parietal bone of 7x 1/2 cm and 3x1 cm. Mode of death was shock. 4. Finally F.I.R. and merg were registered vide Ex.P/9 and Ex.P/10 : (marked twice). During the course of investigation, appellants were taken into custody. Blood stained soil and plain soil were recovered from the spot vide EXP/7. Spot map was prepared vide Ex.P/8. Appellant Bisouha made disclosure statement of stick vide Ex.P/11, same was recovered at his instance vide EXP/13. Appellant Radhey Shyam made disclosure statement of crowbar vide Ex.P/12, same was recovered at his instance vide EX.P/14. Clothes of deceased were seized vide t‘ Ex.P/17. Police was informed over telephone and recorded rojnamcha vide Ex.P/18. Seized articles were sent for chemical examination and presence of human blood was confirmed over stick and crowbar vide EXP/25. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code’) and after completion of investigation, charge sheet was filed before the Court of Additional Chief Uudicial Magistrate, Durg, who in turn committed the case to the Court of Sessions, Durg, which learned Ilnd Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused/appeilants, the prosecution has ~ examined as many as 11 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against him and innocence and false implication in the crime in question is claimed. . After providing opportunity of hearing to the parties, learned llnd Additional Sessions Judge, Durg convicted & sentenced the appellants as aforementioned. . Shri Vivek Sharma, counsel for the appellants and Shri Ashish Shukla, Govt. AdvocateIAdditional Public Prosecutor for the State are heard, perused the judgment impugned and record of the trial Court. . Learned counsel for the appellants vehemently argued that conviction is substantially based on evidence of PW/1-Radhika Verma, relative of deceased whose evidence does not inspire confidence and trustworthy. Her evidence is contradictory to the medical evidence. In absence of corroboration from independent source the evidence of PW/1 is not safe to rely for convicting appellants under Section 302/34 of the IPC. He also submits that even if the case of prosecution is admitted in its true perspective then the act attributed to the appellants does not travel beyond the scope of Section 304 part-ll of the IPC and in the present case incident took place on sudden provocation and on spur of moment without premeditation. 10.0n the other hand, learned Govt. Advocate for the State opposed the appeal and submits that on the ground of long dispute present appellants have caused fatal injuries resulting into instantaneous death of deceased, which was not possible without having any weapon. The act of the appellants shows that they have caused homicidal death of deceased with intent to cause her death. After appreciating evidence available on record, learned llnd Additional Sessions Judge has rightly convicted and sentenced the appellants aforementioned. 1.1. In order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence available on record. 12. In the present case, homicidal death of deceased Maltl Bai as a result of ‘ fatal injuries found over the vital part of deceased has not been substantially disputed on behalf of the appellants, on the other hand, also established by the evidence of Dr. Lal Mohammad (PW/2) and autopsy report EXP/3 that the death of deceased was homicidal in nature. 13.As regard to complicity of appellants in the crime in question is concerned, conviction of the appellants ls based on evidence of PW/1- Radhika. As per her evidence, there was disputed between appellants and deceased on account of throwing wastes in the drain of appellants. On the date of incident, at morning time some altercation took place between parties. At about 4:30 pm appellant Bishouha pelted stone in the house of deceased which was objected by the PW/1-Radhika and deceased Matti Bai then appellant Bishouha abused them, thereafter when VPW/1-Radhika and deceased were going towards their kitchengarden both the appellants assaulted deceased Malti Bai by crowbar and stick and caused h‘er instantaneous death. Police came to village, she narrated the incident to them and lodged dehati nalisi & dehati merg vide EX.P/1 and Ex.P/2. Defence has cross—examined this witness at length. ln her detailed cross-examinatiOn she has specifically deposed that appellants have caused injuries to her mother-in-law Maltl Bai and caused her instantaneous death. She is relativeidaughter—in- law) of deceased and sole eye witness of the incident. Her presence on the spot was naturai. Her evidence is well corroborated by the medical evidence and prOmptly lodged dehati nalisi vide Ex.P/1 and the same inspires confidence and trustworthy. Present appellants have caused homicidal death of deceased. 14.As regards the question of intention and motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 15. In the present case, as per evidence of PW/1-Radhika, there was some dispute relating to throwing wastes in the drain of appellants eve’n on the day of incident, at morning time some altercation took place between the patties. At 4:30 pm appellant Bishouha pelted stone in the house of deceased which was objected by deceased and PW/1—Radhika, daughter—in-law then Bishouha abused them. Both the appellants have caused injuries to deceased while she was returning home from he kitchen-garden. This shows that there was some dispute between the prties on the ground of throwing wastes in the drain of appellants ven on the day and at the time of incident, altercation took place. Both the appellants are neighbour and relative of deceed (Deceaed is sister- in-w (Bhabi) of appellan Bisouha and Aunt of appellant Radhey Sham) this shows that on account of sudden provocation, on a spu of moment hey have caused injuries to deceased Malti Bai but at te time ofusing such injuries, that too, by using crowbar they were having sufficient nowledge that by their acts deceased may die. 16.Considering he aforesaid facts f he case and the acts ttributed to the appellnts, e case squarely falls within the ambit of Section 304 art of th IPC and. not within the ambit of Section 304 part ll of the IPC. 17.While convicting the appellts under Section 302/34 of the l.P.C., the Court below has not considered the aforesaid circumstances in order to find out the intention for causing homicidal death cf deceased and thereby committed the illegality. 18. For the foregoing-reasons, the appeal is partly allowed. Conviction of the appellants under Section 302/34 of the l.P.C. is altered to Section 304 part—l read with 34 of the l.P.C. and sentenced to undergo R.l. for ten years and to pay fine of Rs.500/—. in default of payment of fine, further to r a e as s la t y r t h xca k t o t a a th p l e an undergo additional R.i. for one month. Sd/— sd/ R.N. Chandrakar T.P. SHAW .‘ Judge Judge .Vijay