i!i!;'l Kr HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARIWA AND HON'BLESHRI RJ-.JHANWAR, JJ. Criminal Appeal No. 752/2004 APPELLANT/ : Jeetiram, S/o Dobla ram, aged about 32 (in iail) years, Cast Gond, R/o Village Bukmarka, P.S.- Manpur, District- Rajnandgaon (C.G.) VERSUS RESPONDENT : State of Chhattisgarh, Through P.S.- , lyianpurt Djstrict -_Rajnandgaon (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2)0F THE CRIMINAL PROCEDURE CODE Appearance: Shri Hanuman PrasadAgrawal, counsel forthe appellant. Shri Arun Sao, G.A. for the State. .. ORAL JUDGMENT (Passedon 02.12.2010) PerT.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 15.07.2004 passed in Sessions Case No. 34/2004 by the Sessions, Rajnandgaonwhereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Balsingh Taram, the Court below convicted the appellant under Section 302 of the I.P.C. and sentenced him to life imprisonment with fine of Rs.1,000/- and in default to undergo further R.l. for one year. 2. The conviction of the appellant is impugned on the ground [hat without iota of evidence, the Court below convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. As per the case ofprosecution,on fateful dayof 6.7,2003 between 5.00 to 7.00 p.m. Balsingh Taram (since deceased) was present near the field of Karzi at village Bukmarka, police station Manpur, District Rajnandgaon, the present appellant, who was holding axe assaulted him ''';'? .s s s •"ir^y s^ -; -itt;- ^ by axe over his neck. He fell down and died. Thereafter.the appellant came to village and made extra Judicial confession before P.W.3 Anturam, P.W.4 Samu, P.W.5 Karzi and P.W.12 Mahendru Ram and on second day P.W.3 went to police station and lodged F.1.R. vide Ex.P.3. Merg intimation was recorded vide Ex.P.12. Investigating Officer left for the scene of occurrence and after summoning witnesses vide Ex.P.7, inquest oyer the dead body was prepared vide Ex.P.8,-in which it was mentioned that the deceased was not known. Spot map was prepared vide Ex.P.4. Bloodstained and plain soil was recovered from the spot vide Ex.P.15. Dead body was sent for autopsy to Block Medical Officer, Manpur where P.W.1 Dr. Chandrasekhar Shrivastava conducted autopsyvide Ex.P.1 and found one stabbed wound of8x 5 x 4 cm. over right side of neck was present on the deceased. Major vessels of neck region were found. Mode of death was shock. Patwari prepared spot map vide Ex.P.2. Appellant was taken into custody and made disclosure statement of axe vide Ex.P.5 and the same was reeovered at the instance of the appellant vide Ex.P.6. Sealed cloths ofthe deceased were seized vide Ex.P.14. 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the J.M.F.C. Ambagarh Chowki, who in turn committed thecase to the Courtof Sessions Judge. 5. In order to prove the guilt of the appellant, prosecution examined as many as 13witnesses. The accused was examined under section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded his innocence andfalse implication in crimein question. 6. After affording opportunity and hearing of the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri H.P.Agrawal, learned counsel for the appellant and Shri Arun Sao, learned counselfor the State are heard. Judgment impugned and records of the Court below perused. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of extra 5 §) judicial confession made by the appellant before P.W.3Anturam, P.W.4 Samu, P.W.5 Karzi and P.W.12 Mahendru Ram but evidence of these Witnesses does not inspire confidence and trustworthy. There was no occasion for extra Judicial confession before these witnesses. Even there was no occasion for causing homicidal death of Balsingh Taram, who was not known to the appellant. The evidence adduced on behalf of the prosecution is not sufficient for casting suspieion that the appellant may have committed the culpable homicide amounting to murder of Balsingh and also is not sufficient for drawing inference .that the appellant has committed culpable homicide amounting to murder. Suspicion, however, cannot take place in legal evidence. Therefore, the appellant is entitled for acquittaL 9. On the other hand, learned counsel for the Stateopposed the arguments and submitted that the present appellant has made extra judicial confession before P.W.3 Anturam, P.W.4 Samu, P.W.5 Karzi and P.W.12 Mahendru Ram which itself is sufficient for the conviction of the appellant." ' "" •••••""'i1 ,.•...--<:,•.... -,.- . . . , 10. In order toappreciate the arguments advanced by the parties.we have examined evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury pn Balsingh has not substantially been disputed on behalf of the appellant, on the other hand also established by P.W.1 Dr. Chandrasekhar Shrivastava and his autopsy report vide Ex.P.1 and the death was homicidal in nature. 11. As regards the complicity of appellant in crime in question, the conviction of the appellant is substantially based on the evidence of extra jydicialconfession made by him before P.W.3 Anturam, P.W.4 Samu, P.W.5 Karzi. As per initial case of prosecution, the appellant has made extra judicial confession also to P.W.12 Mahendru Ram but P.W.12 Mahendru Ram has notsupported the case of prosecution, therefore, the prosecution declared him hostile. As per evidence of P.W.3 Anturam, P.W.4 Samu and P.W.5 Karzi the appellant came to village at about 8.00 p.m. and made extrajudicial confession before him that he has killed one person by axe, whereupon P.W.3 Anturam went to police station and lodged F.1.R. vide Ex.P.3. The defence has cross-examined these Ge 1 witnesses at length but hasnot been able to elicit anything in their cross- examination to discredit their testimony relating to extra judicial confession made by the appellant before them. Although all the three witnesses have admitted in their cross-examination that the appellant is a man of disturbed man, the evidence of extra judicial confession was proved to be true and the same can be basis for conviction. In the present case, extra judicialconfession made by the appellant before P.W.3 Anturm, P.W.4 Samu, P.W.5 Karzi inspire confidence and trustworthy and is safe to rely on and sufficient for drawing inference that the appellant caused homicidai death of Balsingh. 12. As regards the question of motive,in case of direct evidence motive loses ifslmportancereven^dtherWi'se'.'motive bnly afds 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 undisputed case of the prosecution the appellant has caused severe injury to unknown personin the field. Prosecution has not collected any evidence toshow that appellant was having any enmity with the deceased or there was some other cause, Which resulted into death of the deceased. The appellant has not caused repeated injury to the deceased even though he was having sufficient opportunity to cause such repeated injury especially when the deceased wasarmless and helpless but the appellant was having weapon of offencei.e. axe. Whatwasthe intention ofthe appellant in which the appellant has caused injury to the deceased is attributed to him that he has not caysed injury to unknown person with intent to cause his death. He has not caused injury repeatedly. He immediately came to village and has made extra judicial confession to the villagers and has not ( absconded from the spot. This shows that the appellant has caused injury without premeditation and on the spur of moment may be under any circumstances and under these circumstances the act of appellant does not travel beyond the scope of Section 304 Part II of the I.P.C. 13. While convicting the appellant under Section 302 of thel.P.C. the trial Court was under obligation to consider circumstances in which the appellant has caused such injury and has committed the offence. For convicting the appellant, the Court below has not considered the aforesaid fact especially thereby committed illegality. ^^s (^) 14. Consequently, the appeal is partly allowed. Conviction of the appellant underSection 302 I.P.C. and the sentence awarded thereunder are altered to Section 304 Part II of the I.P.C. and sentenced him to the period of more than 7 years already undergone i.e. from 08.07.2003 till date. The appellant be released, if not required in any other case. Sd/- T-P. Siiarma Judge Sd/- R.L. Jhanwar Judge