HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAMs HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. CRIMINAL APPBAL No. 930/2005 APPELLANT ,r VERSUS RESPONDBNT Beti Hidma S/o Sannu Muria, age- 51 years, R/o Dumam, Patelpara, Police Station Dantewada, District South Bastar Dantewada (C.G.) The State of Chhattisgarh Through- Station Incharge Dantewada, District South Bastar Dantewada (C.G.) CRIMINAL APPEAL UUNDBR SECTION 374<2l OF THE CODE OF CRIMINAL PROCEDURE. 1973. Present:-Mr. Ashok Dbiit, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. c ORAL-JUDGBMENT (Passedon 07/02/2011) The followuig iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge m fhis appeal is to the judgment of conviction and order of sentence dated 5/12/2005 passed by Sessions Judge, Soutli Bastar Dantewada (C.G.) in Sessions Trial No. 165/2004 whereby and where under whUe acquitting ttie co-accused Beti R^u, convicted the present appellant Beti Hidma for the commission of ofience of culpable homicide amounting to murder of Beti Hadmo, under Section 302 of the Indian Penal Code and sentenced unprisonment for life. "i ^^ & € 2. Conviction is impugned on the ground that without any iota of evidence siifBicient for conviction of the appeUarit; Court below has convicted and sentenced fhe appellant as aforementioned and fhereby committed an illegality. 3. As per case of fhe prosecution, on fatefiil night of 9/4/04 at about 8:00 P.M. PW3 Beti Sanaru, son of deceased Beti Hadmo went to house of appellant Beti Hidma (uncle of PW3 Beti Sanaru), they consumed Landa a kind of mtoxicant. During course of consumption of intoxication on account of some dispute, appeUant assaulted Beti Sanaru by stick then he came to his house and mformed his father Beti Hadmo (since deceased). Beti Hadmo along with his son Beti Sanaru went to the house of appellant, appellant took out the axe and caused repeated mjuries to Beti Hadmo resulting into his death, co-accused Beti Raju also assaulted. PW3 Beti Sanaru went to the Police Station and lodged First Information Report vide Ex. P- 11. Marg intunation was rccorded vide Ex. P-12. Investigatmg Ofiicer left for scene of occurrence and after summoning fhe witaesses vide Ex. P-1. Inquest over the dead body of deceased Beti Hadmo was prepared vide Ex. P-2. Blood stained and plain soil were recovered from fhe spot vide Ex. P-3. Patwari prepared ..^•^?^ ^^."% ^^^ t € 4. spot map Vide Ex. P-10. Spot map was also prepared vide Ex. P-13. Dead body of Beti Hadmo was sent for autopsy to Community Health Center, Dantewada where PW5 Dr. Vijay Karma conducted autopsy vide Ex. P-17 and found following injuries:- f . (i) Chop wound upon face from the lower part of chin to right nostril, mandible lower jaw at mid portion, upper jaw bone & maxilla were found cut dmiension of 5 x 2 c,m. (ii) Incised wound over upperjaw of 5 x 2 c.m & upperjaw was found cut. (iii) Incised wound over neck of 5 x 2 c.m. & trachea was found cut. (iv) Incised wound over parito-occipital region of 5 x 2 c.m. x bone deep & parito-occipital bone was found cut, (v) Incised wound over upper lunb pf 5 x 2 c.m. Cause of deafh was asphyxia as a result of cutting of trachea and death was homicidal in nature. During course of investigation, axe was seized from fhe appellant vide Ex. P-4. Co-accused Beti Raju taken into custody, he made discloser statement of stick vide Ex. P-6, same was recovered at his instance vide Ex. P-5. Cloths of deceased Beti Hadmo was seized vide Ex. P- 14. Seized articles were sent for chemical examination vide Ex. P-16. ^i^- •••;:"v^ ^-•^'^•^ Itea] \^-y~ '^ 5. Statements of the witaesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (m short ttie Code'). After completion of ftie investigation charge sheet was filed before the Chief Judicial Magistrate, Dantewada who in turn conunitted fhe case to the Court ofSessions, Dantewada. 6. In order to prove the gmlt of the appellant and co- accused prosecution examined as many as 5 witaesses. Accused/appellant & co-accused were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication in crime in question is claimed. 7. Aft.er affording an opportunity of hearing to the parties leamed Sessions Judge, South Bastar Dantewada (C.G.) while acquitting the co-accused Beti Raju has convicted and sentenced fhe present appellant as aforementioned. 8. Mr. Ashok Dtxit, leamed counsel for fhe appellant and Mr. Sandeep Yadav, Dy. G.A. for theState/respondent are heard. Judgment ioipugned and record of Court below perused. 9. Leamed counsel for fhe appellant vehemently argued that in the light of evidence of PW1 Beti MotU, PW2 Madvi Kosa & PW3 Beti Sanaru he has not disputing _^^^^ 1&. f?»-.,^. ^., '-fe^y ''^^•^' c the fact that appeUant has not caused homicidal deafh of Beti Hadmo wifh tntent to cause such deafti. 10. Leamed counsel for fhe appeUant further argued that firstly, he was assaulted by Beti Hadmo (since deceased) over his head and caused injury which was bleeding then in exercise of right of private defence, he has caused injury upon fhe head of Beti Hadmo alfliough during course of causing such injury, he has exceeded right of private defence available to him. In these circumstances, he has not committed murder of Beti Hadmo and his act falls within fhe ambit of under Section 304 Part-II ofthe Indian Penal Code. 11. On the other hand, leamed Dy. G.A. for fhe State/respondent opposed fhe appeal and submits that present appellant has caused as many as 6 fatal injuries over vital part of deceased Beti Hadmo shows his grave mtention to causing such injuries. After appreciating ftie evidence available on record, learned Sessions Judge, Soufti Bastar Dantewada (C.G.) has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the argument advanced on behalf of fhe parties we have exammed ftie evidence adduced on behalfofthe prosecution. ^^ c 13. In the present case, homiddal death as a result of fatal injury found over the head of deceased Beti Hadmo has not been substantially disputed on behalf of the appellant on the ottier hand, otherwise also established by the evidence of PW5 Dr. Vijay Karma and autopsy report Ex. P-17 aad deafh was homicidal in nature. 14. As regard the coinplicity of the appellant in crime in question, alfhough appellaat has not disputed homicidal death caused by him but even otherwise by the evidence of PW1 Beti Motii (wife of deceased Beti Hadmo), PW2 Madvi Kosa & PW3 Beti Sanaru (son of deceased Beti Hadmo) fhat appellant has caused fatal injury upon the vital part of deceased Beti Hadmo resulting into his death. 15. As regard the motive for commission of offence is concemed, motive is only aid in crimmality and loses its unportance. In case of direct evidence, even otherwise motive can be inferred on the basis of nature of injury, part of fhe body where injuiy was caused, weapon used and other like circumstances. 16. In the present case, as per evidence of PW3 Beti Samaru 8s First Information Report vide Ex. P-11, PW3 Beti Samaru consunied Landa a kind of intoxicant wifh present appellant in tiie house of appellant where on account of some dispute, appeUant assaulted him by ..^"s ^, ^ stick over his head then he came to his house and informed liis fattier Beti Hadmo (since deceased) then Beti Hadmo along with his son Beti Samaru went t.o the house of appellant where appeUant caused injury to Beti Hadmo. After hearing the sound, PW1 Beti Motli (wife of deceased Beti Hadmo) went to house of appellant who has seen fhe incident. As per Para-5 of her cross-examinaUon, at the time of incident blood was commg out from the head of appellant. As per Para-6 of her evidence, blood was coming out from the head of appellant and injury was found over tiie head of appellant even PW4 B.R. Dheerhe Investigating Ofilcer has admitted fhe same thing in Para-7 of his cross- examination that he has noticed fresh injury over fhe head of appeUant which was caused during course of incident. No oftier person has caused injuiy to appellant. After receiving injury by Beti Hadmo causing any injury to appellant was not possible. Beti Hadmo had gone to the house of appellaat after knowing the fact that appellant has caused injury to his son shows that he has visited fhe house of appellaiit to answer assault made by htm to his son and only inference would be possible that firstly deceased Beti Hadmo has assaulted the appellant then appellant has caused injury to tlie deceased Beti Hadmo. tn these /'^v\ l^cr;%. ^^fcy ^te&^"' 17. circumstances, right of private defence was available to the appellaiit although injury found over fhe body of deceased Beti Hadmo reveals fhat present appellant has exceeded liis right of exercise of right private defence and has caused more mjuries resulUng into instantaneously death of Beti Hadmo. These evidence shows that appeUant has not caused any injury wifli intent to cause fhe deatli of Beti Hadmo, while causing such injiuy in exercise of right of private defence of person he has exceeded its right aiid committed homicidal death of Beti Hadmo, the act attributed to the appellant in these circumstances does not travel beyond the scope of under Section 304 Part-I of fhe Indian Penal Code. While convicting the appeUant under Section 302 of the Indian Penal Code Court below has not considered the aforesaid aspect and thereby coiiunitted an Ulegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into under Section 304 Part-I offhe Indian Penal Code and considermg the injury, he is sentenced rigorous imprisonment for 8 years. He is in custody and he is entitled for set off for the period of detention. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge r/-