1B HIGH COURT OF CHHATTISGARH AT BiLASPUR DIV1SIONBENCH: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. Chandrakar, JJ. (In Jail) Criminal Appeal No.753 of 2004 Buddhi Bai, D/o. Bihanuram Aged 28 years, Occupation - House hoid, R/o Village—SagiBhawana, Gati Mahuwa Basti, P.S. Kansabel, District Jashpur (C.G.) Respondent State of Chhattisgarh, Through P.S. Kansabel District Jashpur (C.G.) (CRMiNAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. A.K. Prasad, counsel forthe appellant. Mr.Sandeep Yadav, DeputyGovt. Advocate forthe State. ORAL JUDGMENT (Passed on 1SI February, 2011) Per T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24.08.2004 passed by the llnd Additional Sessions Judge, (FTC) Jashpur, in Sessions Tria! No.48/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilt for commission of offence of culpable homicide of Birajo Bai (since deceased) amounting to murder convlcted under Section 302 of the I.P.C. and sentenced her to undergo imprisonment for !ife and to pay fine of Rs.1000/-, in default of payment of fine to further undergo S.l. for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegaiity. ..s>sl-°°-iaa 3. As per case of the prosecution, deceased Biroja Bai was coilecting Mahuwa on 15.03.2004 at about 8.00 a.m. Appeliant atso went to same place for coltecting Mahuwa, on account of collection of Mahuwa some quarrel took place then appellant took out stone and peited over the head of the deceased, resulting into her instantaneous death. Laxman Ram (PW/3) was present near the place of incident and seen the incident finally. Jyoti Prakash Tirkey (PW/2) went to the Pollce Station and lodged the F.1.R. vide Ex.P/3. Morgue was recorded vide Ex.P/.4. Investigating officer left for scene of occurrence and after summoning the witnesses, inquest over dead body of Biroja Bai was prepared vide Ex.P/1. Dead body was sent for autopsy to Community Heaith Centre, Kansabel vide Ex. P/11 . Dr. Y.K. Toppo (PW/6) conducted autopsy vide Ex.P/12 and found foliowing injuries. i.) Lacerated wound over the left ear of 3 cm. x 2 cm. x 2 cm. ii) Lacerated wound over right side of the head of 3 cm. x 2 cm. x 1 cm. iii) Lacerated wound over left side of the head of 3 cm. x 2 cm. x 1 cm. iv) Two lacerated wound just over centre part of the head both parital bone of 3 cm. x 2 cm. x 1 cm. v) Lacerated wound over back of the head of 3 cm. x 2 cm. x 2 cm. Fracture over occipital area of head was also found. Cause of death was shock and homicidal in nature 4. During the course of investigation the appellant was taken into custody. She made disclosure statement of blood stained stone and clothes vide Ex.P/6. Blood stained clothes were seized vide Ex.P/7. Spot map was prepared by investigating officer vide Ex.P/15. Biood stained earth and stones were recovered from the spot vide Ex.P/16. B!ood stained clothes of the deceased were seized vide Ex.P/17. Seized articles were sent for chemical examination vide Ex.P/18. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Jashpur, who in turn committed the case to the Court of Sessions, Jashpur, which Additionai Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appeilant, the prosecution has examined as many as nine witnesses. Statement of the ^ •^•^!ge .^- SR '%!: "<^:K accused/appellant was recorded under Section 313 ofthe Cr.P.C. where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, Jashpur convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellant submits that in the light of evidence of Laxman Ram (PW/3) and evidence of other witnesses he is not disputing the homicidal death of the Birajo Bai caused by the appeliant. Incident took place on sudden quarrel without pre-meditation and on spur of the moment, appellant who was not having any weapon for causing injury took the stone lying on the field and peited over the head of the deceased and caused homicidal death of the deceased Birajo Bai. Therefore, the case of the prosecution does not travel beyond the scope of Section 304 Part-11 of the I.P.C. Learned counsel for the appellant further submits that present appe!lant is in custody since 1 6.03.2004 and she has completed more than six years and 10 months. Same would be treated sufficient sentence served by her. 10.0n the other hand, learned Deputy Govt. Advocate for the State supported the judgment impugned and submits that although present appeilant has not any specific intension for causing such injuries, she caused injuries to the deceased by using stones which shows that the appellant has caused fatal injury on the head of the deceased resulting into her instantaneously death which further shows her grave intention for causing homicidal death of the ceceased. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant as aforementioned. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. •;": IrC-"'^^' y '%'. •^' ^/ 12. !n the present case, homicidal death of Birajo Bai as a result of fatal injury found over her body has not been disputed on behalf of the appellant, even otherwise it is established by the evidence of Dr. Y.K. Toppo (PW/6) and autopsy report Ex.P/12 that the death was homicidal in nature. As regard to quality of any crime in question although the appellant has not disputed homicidal death caused by her but is further established by the evidence of Laxman Ram (PW/3) whlch is corroborated by Jyoti Prakash Tlrkey (PW/2) and Kunwar Sai (PW/1) and the same are sufficient for drawing inference that the present appellant has cause homicidal death of the deceased Birajo Bai. 13. As regards the question of 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 ofweapon used, part of the body effected and other similar drcumstances.. 14.1fthe aforesaid fact is considered, then only inference would be possible that the appellant has caused injury to the deceased but has not caused with intent to causing her death, but at that time she was having knowledge that by causing such injury, the deceased may die. In these circumstances, the act of the appellant does not travel beyond the scope of Section 304 Part-11 of the I.P.C. 15.1n the present case, as per the case of prosecution and the evidence adduced on behalf of the both, the deceased and the appellant were coltecting Mahuwa and on the ground of collection of Mahuwa quarrel took place then appellant took out the stone lying on the field and pelted over the head of the deceased resulting into her death. This fact reveals that incident took place on account of collection of Mahuwa, appellant was not having any weapon for causing such injury. This evidence clearly reveals that the appellant has caused injury on sudden quarrel wlthout pre-mediation and on spur of moment. Although, while causing such injury by stone she was having the knowledge that by her act deceased Birajo Bai would die. On consideration of the aforesaid facts, we are of the affirmed view that the act does not travel beyond the scope of Section 304 Part-!l ofthel.P.C. ^/..—...,—__-.. 'ljay IS.While convicting the appeltant under Section 302 of the I.P.C., learned Sessions Judge has not considered the aforesaid circumstances and thereby committed the illegality. 17. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 Part-11 of the I.P.C. and sentence to undergo R.l. for seven years and fine of Rs.200/-, in default of payment of fine to further undergo R.l. for one month. It is stated that the appellant is in custody from 16.03.2004 and she has completed more than six years and 10 months. Thus, the sentence awarded to .the appellant is reduced to the period already undergone by her. She be released forthwith, if not required in any other case. __^==»— _ __—— - - - - Sd/- \ Sd/- , T.P.Sharma ; RJS. Chandrakar Judge '^ Judge c^