HIGH COURT OFCHHATTISGARH.BILASPUR APPELLANT: (In Jail) RESPQNDENT: Criminal ADpeal No.178 bf 2006 Santosh Kumar Suryavanshi S/o latwari, Aged about 37 years,R/o village Bharari, P.S. Ratanpur, District Bilaspur (C.G.) Versus The State of Chhattisgarh, Through Ratanpur, Distt. Bilaspur(C.G.) {Criminal appeal under Section_374 (2) ofthe Code of Criminal Procedure} Present: Mr. R.K. Jain.counsel forthe appellant. Mr. S.R.J. Jaiswal, Panel. Lawyer forthe State/respondent. Division Bench: - Hori'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. JKanwar. JJ ORALJUDGMENT (14-2-2011) T.P.Sharma.J: - 1. Challenge in this appeal is to the judgment of conviGtion & order of sentence dated 18-1-2006 passed. by the Sessions Judge, Bilaspurin Sessions Trial No.7Q/2005, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounfing to murder of Makhan, convicted the appellant under Seetion 302 of the TPC and sentenced him to undergo imprisonment for life & pay'fine of Rs.5,000/-,in defaultof paymentof fine to further undergo Rl for two years. 2. Cohviction is impugned on the ground thatwithout anyiota ofevidence, the trial Court has convicted & sentenced the appellant, and thereby -commiftedilfegality. 3. As per case of the prosecution, on the fateful night of 24-6-2004 between 8 & 9 p.m. while Makhan (since deceased) was present in front of the shop of the appellant at Bharari, on account of some dispute, the appellant took out axe and caused one injury over head of. Makhan, Makhan fell down and died. Laxman Suryavanshi (PW-5)was presentin »!--»<' ^ his shop within close distance pf the place of incident, he has seen the incidentand intimated to his son Ajay (PW-10) toinform the relatives of Makhan, in turn, Ajay informed the same to relative of Makhan i.e. Jeevrakhan (PW-4) who went to the police statiQn and lodged FIR on same day at about 10.30 p.m. vide Ex.P-5. Merg was recorded vide Ex.P-6. The Investigating Officer left for the scene of occurrence and aftersummoning the witnesses vide Ex.P-7, prepared inquest over the dead body of the deceased vide Ex.P-8. Dead body was sent for autopsy to Primary Health Centre, Ratanpur vide Ex.P-4. Dr.Anil Kumar Shrivastava (PW-1) conducted autopsyvide Ex.P-1 and found following jnjurles: - (1) Deep incisedperforating wound2 %" x 1" x 1 %" over right fronto temporal bone perforating-skull cavity with causing fractyre skull bone of size 2 %" x 1" x 1 1/2" deep clotted blood cut margiris clear. (2) Bruise with haematoma 3 %" x 1 1/2"over right temp parietal bone with depressed fractureof tempero parietal bone ofskull. Mode of death was shock and death was homicidal in nature. Bloodstained & plain soil and cycle of the deceased were seized from the spot vide Ex.P-13, The .agcu§ed,,was^taken jnto custody, he^^^m^ discloserstatement of axe vide Ex.P-12 and same was recovered athis instance vide Ex.P-11. Patwari prepared spot map vide Ex.P-9. The tnvestigating Officeralso prepared spot map vide Ex.P-21. Seized artieles were sent for chemicaiexamination and presenGeof blood over axereeoveredfromthe,accus!edwasconfirmecivideEx.P-22. 4. Statements of the witnesses wererecorded underSection 161 ofthe CrPC. After completion of investigation, charge sheet was filed against the appellants before the Court of Additional Chief Judicial Magistrate, Bilaspur whocommitted the ease to the Court of Sessions, Bilaspur. 5, Inorderto prove the guiltofthe accused, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. Byexamining-himselflhie accused has taken defence that Laxman Suryavanshi (PW-5) is having enmity with hirri and on aecoant of such enmity, Laxman Suryavanshi has falsely implicated him inthecrimeinquestion. _ . ^ 6. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellantas aforementioned. 7. We have heard learned counsel forthe parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for fhe appellant vehemently argued that as per evidence of Laxman Suryavanshi (PW-5), the appellant has lodged reportagainst him and hastriedforhisexternment, he haswitnessed the incident. His evidence d.oes not find corroboration from evidence of other witnesses and in absence of corroboration from independent sources, evidence of the;withess: tiavirig inimical terrhs with the appellant is notsafe to rely. Learned counsel further argued that as per his evidence, the incident took placeat 7p.m. and as per evidence ofAnil Tiwari (PW-11) - thelnvestigating Officer, he has registered FIR at 7.30 p.m. vide Ex.P-5, but the FIR reveals that same has been recorded at 10.30 p.m. Learried counseT also argued that there is material contradiction relating to time of incident and evidence of iriimical witness. Therefore, conviction of the appellant is not safe. Learned counsel contends that even otherwise,as per medical evidenpe only one injury was found over head of the deceased. The appellant has not caused any injury with intent to cause'death of the deceased, he has caused onlyone injury oh sudden quarrel andatthe spur of themomentwithout any premeditation and, therefore, if evidence of Laxman Suryavanshi (PW-5) is considered, act of the appellant does not travel beyond the scopeofSectiofi 304 Part-11 ofthe IPC. 9. On the other hand, learned State counsel opposed the appeal and submittedthat fatal injury and depth of injury found over head of the deceased reveal that the appellant has caused homicidal death of the deceased with intent to cause death and the trial Court has rightly _ Gonvicted &sentenGed,the,ap|iellant.. r :; 10.1n orderto appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe parties. 11.In the present case, homicidal death ofdeceased Makhan as a result of fatal injury found over vital p'art of the body has not been disputed on behalfof theappellant, otherwise also, it is established by theevidenc.e of Dr. AnilKumarShrivastava (PW-1) and autopsy report Ex.P-1 that death of Ma~khan was homicidaf innature. substantially J 1 ^ • . '- fs1 '^tj"^^. "'"'•'ttS ! ; ^ • ..£f ^ ..-^ y^'f^ -.•IQ'^''''iS^ 12.As regards complicity ofthe appellant in the crime in question, conviction is based on the solitary evidence of Laxman Suryavanshi (PW-5). As per evidenceof Laxman Suryavanshi (PW-5) on the fatefyl day at about 7 p.m. the appellant told the deceased that "swvf ^ ~g\^ -^ gf^RT ^ci^ sf\^ ~^s ift ^ETR f^ ^" and directed for preparation of ganja, meanwhile the appellant took out axe from his shop and caused one injuryover head ofthe deceased. After causing such injury the appellant went towards the chowk, then this witness reached tq the place where body of Makhan was lying. Makhan was dead by that time, then he directed his son Ajay to inform relatives of Makhan. As per evidence of Ajay (PW-10)—son of Laxman Suryavanshi (PW-5), he was directed by hjs father on which he informed torelative of Makhan i.e. Jeevrakhan (PW-4). ' 13.1n his cross-examination Laxman Suryavanshi (PW-5) has admitted the factum ofenmity and the complaint made by the appellant against him, he has .also-admitted that;the,<appellant has tried for his externment. There is contradiction between the evidence of this wjtness and the statement of this witness recorded under Section 161ofthe CrPC (Ex.P- 3) relatingtoavailability of lightandcause ofquarrel. 14.As per evidence of the accused/appellant himself, he has lodged different' complairits again§trrD®(rfiah'Suryavanshi (PW-5) and he is havjng enmity with Laxman Suryavanshi (PW-5). In the present case, factum of enmity has been admitted by Laxman Suryavanshi (PW-5) himself while answering the question that the appellant has made cpmplaintagainst him for selling liquor, this witness himselfhas deposed that the appellant has tried for his externment. This shows that this witness has not concealed the factum of enmity and previous incidence. As per map his shop is situated near place of incident i.e. shop of the appellantand distance is only 155 ft., he hasstated that the incident took place at about 7 p.m.. Anil Tiwari (PW-11) hasstated that he has recorded FIR at 7:30 p;m;, but FIR Ex.P-5 reveals that it has been recorded at 10.30 p.m.. This shows that it is only a clerical and typing mistake. Even otherwise, onlyon the ground of some discrepancy of halfan hour or one hour relating to time of incident, evidence ofany witoess cannot be discarded. Evidence of Laxman Suryavanshi (PW-5) who is having enmitywith tHe appellantiswell corroborated byevidence of Ajay (PW-10), promptlylodged FIR EX.P-5 and medical evidence :"1^ •' ^:?-^ s\ which inspire confidence and trustworthy, and same is sufficient for drawing inference that the appellant has caused injury to deceased Makhan resulting in his death. 15.As regards the question of motive, motive only aids incriminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, partofthe body effected, nature of injury and othersimilar circumstances. 16.1n the present case, as perTevidence of Laxrhan Suryavanshi (PW-5), on account of some quarrel, the appellant caused single blow of axe upon head of the deceased and then he went to chowk. This shows that previously the appellant has not intended to cause injury to Makhan, Makhan was hot resident of the place of incident, but the appellant was having shop near the place of incident and the incident took place in front ofhis shop, his presence iri his shop was natural. While the deceased was passingin front of the shop of the appellant, on aqcount of some quarrel, the appellant has caused one injury to the deceased. It was not expected that the appellant waswatching and waiting for the deceased that the deceased will come in front of his shop and then he will cause such injyry, the appellant has not caused repeated injuries. This shows that the appellant has caused injury onsudden quarrel ahd on the spur ofmoment.he took outthe axe which was present in the shop and has caused single blowwhich also shows that he has not causedany injury with interit to cause death, but by eausing such injury he was having knowledge that byhis act the deceased may die. 17.1n these circumstances, the appellant has not caused culpable homicide amounting to murder, but his act squarely falls within the ambit of Section 304 Part-11 of the IPC. While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid circumstances in which the appellant has caused single blow and therebycommittedillegality. , 18.Fortheforegoingreasons, the-appeal is partlyallowed. Conviction ofthe appella^t under Section 302 bf the IPC is hereby altered to Section 304 Part-11 ofthe IPC. As regards sentence, the appellant is in custody since 26-6-2004 and has completed more than six years seven months ofjail sentence. Custodial period already undergone by the apppllantwould be suffieient-sentence to the.appellgnt.: Consequently, Ihe appellant is iaaSafil^Utlt "St^-. f- "^.^•^' Soma T.P.Sharma Judge sentenced to the periodalready undergone by him i.e. from 26-6-2004 till dateand fine of Rs.5,000/-, in default additional Rl for two years. \ ' • ' ' ! - ! i ' Sd/- \ R.L. Jhanwar Judge r iifW