HIGH COURT OF CHHATTiSGARH AT BiLASPUR DiVISiON BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR. R.L. Jhanwar, JJ. Appeiiant Rsspondent Criminai Appeal No.295 of 2006 Mata Prasad S/o Nawiuram Haiba, aged about 40 years, Caste Halba, R/o Viiiage Munda Tikrapara Chotedonger, P.S. Chotedonger, Distt.Bastar (C.G.) , Versus The State of Chhattisgarh, through Police Station Chotedonger, Distt.Bastar INAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIM1NAL PRQCEDURE, 1973} Mr.H.B.Agrawai, Senior Advocate with Ms Sarina an, counserf for theappellant. Mrs.Madhu Nisha Singh, Panel Lawyer for the State^respondent. ORAL JUDGMENT (Passed on 7th Aprit, 201 1) Per T.P.Sharma, J.:- 1. Chalienge in this appea! is to the judgment of conviction & order of sentence dated 3.4.2006 passed by the Sessions Judge, Bastar at Jagdaipur in Sessions Trial No.274/2005, whereby & o^iereunder iearned Sessions Judge after holding the appeilant guitt for commission of culpabie homicide amounting to murder of Sitaram convicted him under Sectfon 302 of the I.P.C. and sentenced to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence, the triai Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecuiion, on the fateful day of 31.3.2005 at about 6.; p.m. the appeliant along v^h deceased Sitaram cams to the house of ' '~';";a">& S'a*t 1 ys^ j \.^ •^"•y ~':e,r»3-f!" ^(c Kesharbai (PV</-2) and on sudden quarre!, the appeliant took out one wooden piece used for fuet and caused injury over the head of Sitaram (since deceased) and left the ptace of incident. On second day relatives of the deceased took him to She hospital and they iodgsd F.1.R. vide Ex.P/3 for the offence punishable under Section 325 of the I.P.C. and after iwo days on 3.4.2005 he succumbed to the injuries. Msrg was intimated vide Ex.P/11. On the basis of Ex.P/10, inquest over dead botiy of deceased Sitaram was prepared vids Ex.Ri12. Firstly Sitaram was examined by Dr.P.K.Dhote (DW-2) vide Ex.P/14A, he was semi- conscious and lacerated wound was found over right side of scaip and face. Dead body was sent for auiopsy to Community Heath Centre, Narayanpur where Dr.M.K.Suryavanshi (PW-5) conducted autopsy vide Ex.P/9 and found foilowing injuries:- (i) One stitched wound of 9 cm. iength over rightside of head. (ii) Lacerated wound beiow the ieft eye of 3 cm. iength. (iii) Bone of scaip was found fractured. Cause of death was coma and death was homicidat in nature. Durir^ the course of investigation, accused was taken Into custody, he made disciosure statement of wooden pisce vide Ex.P/4, sams was recovered at the instance of appellant vide Ex.P/5. 4. Statemsnts of ths witnesses were recorded under Section 161 of the Cr.P.C. and after compietion of investigatiem, charge sheet vvas fiied before ths Court of Judicial Magistrate First Ciass, Narayanpur, who in turn committed the case to the Court of Sessions, Jagdaipur. 5. in order to prove the guiit of the accused/appetiant, prosecution has examined as many as eight witnesses. Statement of the accused/appeilant was recorded under Section 313 of the Cr.P.C., in whteh he denied the circumstances appearing against him and pieaded innocence and faise implication in the crime in question. The appetlant has also examined defence witnesses Baidev (DW-1) arej Dr.P.K.Dhote (DW-2), who was first time examined Injured Sltaram vide EX.P/14A. 6. After providing an opportunity of hearing to the parties, iearned Sessions Judge convicted & sentenced the appellant as aforementioned. ~S5^. 7. We have heard Mr.H.BAgrawal, Senior Advocate wtth iVis Sarina Khasn, counse! for the appeliant and Mrs.Madhu Nisha Singh, Panel Lawyer for the State, perused thejudgment impugned and record ofthetriai Court. 8. Learned counsei for the appellant submits that In the light of evidence of eyewitnesses Kesharbai (PW-2) and Saraswati (PW-3) they are not dfsputing the fact that the appeiiant has not caused injury to the deceased. Learned counsei further submits that the deceased he®not died instantaneousiy. Injuries found over the body of the deceased were not sufficient for causing death in minor course of its nalure. Act attributed to the appeilant virtualiy reveais that he has caiBed injury on sudden provocation and a spur of moment wiihout premeditation, therefore, the act of the appellant does not travel beyond the scope of Section 304 Part-li ofthe t.P.C. 9. On the other hand, iearned State counse! supported the judgment impugned and submits that the appefiant has committed homicidai death amounting to murder of Sitaram and the triaf Court has rightty convteted and sentenced the appeiiant as aforementioned. 10.1n order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence available on record. 11.1n the present case. homicidai death as a result of injuries found over vital part of body i.e. head of deceased Sitaram has not been substantiaiiy disputed on behalf of the appefiant, even othenwise, it is established by the evidence of Dr.P.K.Dhote (PW-2), medial report Ex.P/14A, evidence of Dr.M.K.Suryawanshi (PW-5) and auiopsy report Ex.P/9. Death of Sitaram v/as homicidal in nature, although the appeilant has not disputed homicidal death caused by him, but even otherwise same is estabiished by the evidence of eyewitnesses Kesharbai (PVV-2) and Saraswati (PW-3) who have wtnessed the fncident. 12.As regards question of motive, in case of direct evidence motive iosses its importance, even otherwise, motive oniy aids in criminality and can be inferred on ihe basis of nature of injury, kind of weapon used, part of the body effected and other simiiar circumstances. f; 13.As per evidence of Kesharbat (PW-2) and Saraswati (PW-3), both the persons came to the hoyse of Kesharbai tcgether, they quarreled with each other and on sudden provasation the appeiiant took out one wooden piece used for fuei and caused injury over the head of deceased Sitaram, he was having sufficient opportunity to cause repeatsd injuries resuiting into death of the deceased but he has noi caused such injuriss, but causing such injury the appeltant was having knowriedge that by his act the deceased may die, therefore, the act of the appeiiant squarely faiis within the ambit of Section 304 Pari-il ofthe I.P.C. U.While convicting the appeliant under Section 302 of the i.P.C. fhe triai Court has not considered the aforesaid aspect and thereby committed. 15.For the foregoing reasons, the appeal is partiy allowed. Consriction ofth® appeilant under Section 302 of the i.P.C. is aitered to Section 304 ParS-1 of the I.P.C. Considering the nature of injury and number of injury, the appeliant is hereby sentenced to the custodiai period t.e., tbe period aiready undergone since 31.5.2005 till today for about five ^ears and nine month. He be released forthwith, if not required in any^thqt' case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge