%• HIGH COURT OP CHHATriSGARH. BILASPUR Criminai Aooeal No.l34/20GS APPELLANT (In Jail) VERSUS RBSPONDBNT Rainbhagw^an s/o Bari Ram Aged 33 years, R/o village Bhaida, P.S. Pratappur, Distdct Sai'guja (CG) State of Chhattisgarh Through Police Station Pratappur, Distnct Sarguja (CG) CRIMINAL APPEAL U/8 374 (21 OF THE CQDE OF CRIMINAL PRQCUDERE Appearance: Smt. Anju Ahuja, couusel for the appellaat. Shri S,K. Agrawal, Paiiel Lawyer for fhe State. ^ Division Beaich:- Hon'ble Sluri T.P. Sharma & Ho$£?bleShri R.L.Jhsmwar,JJ Per T.P.Sharma, J. ORAL JUDGMENT (16.3.2011) Chatlenge in tliis appeal is to fhe judginent of conviction and order of sentence dated 28.12,2004, passed by fhe Ist Additional Sessions Judge Surajpur, Sarguja (CG) m S.T,No.226/ 2004, whereby aad whereunder the learaed Additional Sessions Judge, after holdiiig fhe appellaat gmlty for coinniission of culpable hoBiicide amoiuitiag to iniirder of Thuru Gond @ Godsiya, convicted fhe appeUaat under Section 302 of fhe IPC aiid sentenced for life impnsonment and fine of Rs.500/-, ia default of payment of fme to fiirther undergo R.I. for 2 monfhs. 2. The conviction is impugned on fhe ground that wifhout fliere beixig aay iota of evidence sufficient for conviction of fhe appellant, fhe leamed Additional Sessions Judge has convicted tissiiiSiss^K^sississysi^^SiiKSis aad seatenced the appeUant as aforesaid nientioned aad fhereby coinniitted iUegality. 3. As per case of prosecution, on fateful day of 07,04.2004, at about 12.00 ia fhe noon, Thuru (since deceased) was coUecting Mahzia along with appellaat- Rambhagwan; ou account of some dispute relating to collectiori of Mahua, appellaat assaiilted Thuru by Geti over his head and fhereby caused his mstaataaeous deafh. PW-8- Aghao^u Singh was mformed by one Arjun then he went to PoUce Station aiid lodged FIR vide Ex. P/7, Merg was also recorded, The Investigating Ofiicer left for titie scene ofoccurrence aiid after suniiaoniag witaesses vide Ex, P/2, inquest over fhe dead body of fhe deceased was prepared vide Ex. P/1. Blood stabied aad plam soil was recovercd froni fhe spot vide Ex. P/15. Spot map was prepared vide Ex, P/9. Dead body was sent for autopsy to CHC, Pratappur^ where Dr, Jitendra Kunjaoi (PW-10) conducted autopsy vide Ex. P/10 and found followuig iajuries : i. Lacerated woiind of8 x 1 x Ys cxa over left occipital region; bone underlying tiie iojurywas foiuid fractared. ii. Lacerated wound of4x 1 x 1 cm over right occipital rcgion; bone underlyiag flie iajiuy was found fractured Death of the deceased was hoxiiicidal in. xiature. During the course of mvestigation accused was taken into custody; he made disclosure stateinent of Geti vide Ex. P/6; saiae was recovered at fhe tastance ofappellaxit vide Ex. P/5. One cycle offhe appeHant was seized vide Ex. P/3. Patwari prepared spot map vide Ex, P/12. Statements of fhe witaesses were recorded under Section 161 ofthe Code ofCrimmal Procedurc, 1973 (in short the Code). 4, After conipletion of ijivestigatlon, charge sheet was filed before fhe Judicial Magistrate Firat Class Rratappxir, who m tura, comnutted fhe case to the Court of Sessions, Sarguja at ^ Anibikapur froxa where fhe learaed Additional Sessions Judge received fhe case on transfer for trial. 5. In order to prove fhe giult of ftie accused/appellaat, prosecution examined as maay as 16 witaesses. Accused was examined iinder Section 313 of fhe Code, ia whichy he denied fhe circiunstaaces appearing agaiast him, innocence aad false iinpUcation in crmie ia question was claiaied. 6. After aBbrdmg opportunity of hearmg to the parties, the learaed Additional Sessions Judge convicted and sentenced fhe appellant as aforesaid mentioned, 7. We have heard Sint Anju Ahuja, learaed counsel for the appeUaat aad Shri S,K. Agrawal, leamed P.L. for fhe State, perused fhe judginent impugned and record ofthe trial Court. 8, Learaed counsel for fhe appeUaat vehemently argued that ia fhe light of penod of detention aad evidence of prosecution witaesses, she is not disputiag the fact fhat appellant has not caused homicidal deafh of fhe deceased- Thuru, but it is disputed fhat only 2 iajuries have been found over fhe head of the deceased. As per case ofprosecution quarrel took place at fhe time of iacident while they were coUectmg Mahua; at a spiir of moment on sudden provocation/ fhe appeUant has caused such injuiy to fhe deceased. Considermg tlie depth of the mjury, it appeara fhat fhe appellaat has not caused fhe iajury wifh iatent to cause flie deafh of Thuru, but has caused fhe mjuiy to teach him a lesson, fherefore, if fhe evidence of prosecution witaesses is accepted fhen also fhe act attributed to fhe appeUaat does not travel beyond the scope ofSection 304 Part II ofthe IPC, 9. On fhe ofher haad, learaed counsel for the State vehemenfly opposed these arguments aad submitted fhat fhe appenant has mtentionally caused homlcidal deafh of the ® h^ deceased aad Court below has righUy convicted and sentenced the appeUaiit as aforesaid nientioned, 10. In order to appreciate fhe argunients advaaced on behatf of the parties, we have exaraiaed fhe evidence adduced on behalf of fhe prosecution. 11. In fhe present case, hoiaicidal death as a result of fatal injuxy fonad over the vital part of fhe deceased has not been substaatiaUy disputed on behatf of fhe appeUant, on the ofher haad, it is established by fhe evidence of Dr, Jitendra Kiinjam (PW-10) aad autopsy report Ex, P/10 and deafh was homicidal iaa natare. Alfhough fhe appellant has not disputed fhe homicidal deafh but fhe sanie is established by fhe evidence of Pataago Bai (PW-1), Ramsai (PW-2), Aghanu Singh(PW-8), Ghiran (PW-7) and Sukai (PW-9) aad same is suflBcient for drawiag an inference fhat present appellant has caused honiicidal deafh of fhe deceased Thum. 12. As regards niotive is concemed, xnotive oiily aids io. criiiiiaality, ia case of direct evidence it losses its miportance. Motive can be ioferred on fhe basis ofweapon used, part offhe body effected, natare of injury aad other simUar circuHistaaces. In fhe present case, as per iaitial case of prosecution and the evidence adduced, appellant and fhe deceased were collectilag Mahua. Diuiag fhe course of coUection of Mahua, soxae dispute arose between the appeUaat aad fhe deceased aad a quarrcl took place fhen fhe appellaiit has caused 2 blows over fhe head of tfae deceased. The depth of fhe blows was 1 cm and % cm, although fhe bones underlyiag fhe iojuries were found fractured. The nature of uyiuy aiid causiag such injiiry on sudden provocation shows fhat fhe appeUant has not caused aay iajuxy to the deceased wifh iatent to cause his deafh. The act of fhe appellaat ..^" ":0. '•^y is squarely covered wifhia the ambit of Section 304 Part II of fhe IPC. While convictmg aad seutenciag fhe appellant under Section 302 of the IPC, Court below has not considered fhe circuinstance, in which, iajury has been caused and fhe nature of iryi-ury aad fhereby committed itlegalily. 13. For fhe foregoing reasons, fhe appeal is partly aUowed. Conviction of fhe appellaat under Section 302 of fhe IPC is altered mto Section 304 Part II of fhe IPC. The appeUant is ici custody stn.ee 10.4.2004 and fhereby he has coxnpleted 6 years and 11 xaonths in. fhe custody. Considering fhe period of detention, appellant is sentenced to fhe period already undergone ie, siiice 10.4.2004 tUl today, He be released, if not required ia any ofher ca^e. | sunita Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge