HIGH COURT OF CHHATTISGARH AT BODRI, BILA8PUR Crimiaal Aopeal N0.147/200S APPELLANT VBRSUS JR^POWDBNT Bal Singh s/o Hunga Madhiya, aged about 25 yeare^ occupatioxi cultivation, rcsideat of village Marigxida para Matnar, P»S, Mardooin, District Bastar (CO) The State of Clihattisgarh fhnoii^i fhe Station House Officer, Police Statton Mardooxii, District Bastar, (CG) CMMINAL APPEAL U/S 374 (2) OP THE CODB OP CRIMIWAL PROCUDBRB Appearanee: Smt, Savita Tiwari, counsel for fhe appellant Shri D,K. Gwalrc, Govenimfittt Advocate for fte State. f ^_ Di^dsion Bench:- Hontble SIui T.P. Sharma & Hon^ble Shri R.L.Jhanwar.JJ Per T.P.Sharma, J, ORAL JUDGMBNT (11.01.2011) Challenge m this appeal is to the judgment of convictioa aad order of sentence dated 12.1,2005, passedby the Sessions Judge Bastar at Jagdalpiu- (CG) in S.T.No.301/2004, whereby and whereuxider ffae leamed Sessions Judge, after holdmg tibie appeUaat guilty for conuiiission of ciilpable homicide aoiouiitiag to niuxder of his brofher- Deva, convicted fbe appellant under Section 302 of the IPC aad sentenced for life imprisonment aiid fine of Rs.500/-, in default of payment of fine to further uiidergo R.I. for 3 inontiis. 2. The convictlon is iinpugned on the ground fhat wiffaoiit fhere beiag aiiy iota of evidence sufficient for convictiion of ti&ie appeUasit, fhe leanied Sessions Judge has convicted aad sentenced the appeUant as aforesaid mentioa^l aisd fhereby coTnmitted itlegality. 3, As per case of prosecution, on fateftd dsy of 9,10.2004, at about 6.00 pm, on account of laiid dtepute, a quarrel took place between the appellaat aad his brofher Deva (since deceased) and the appeUaiit pelted stone upon Deva aiid caused mjiuy, resiiltuig iiito his iastaataneous death. The iacident was seexi by the daughter offhe deceased - Mita, who narrated fhe mcideat o her mother. Subti (PW-2) lodged FIR vide Ex. P/7 and merg vide Ex, P/8. The Investigating Officer left for the scene of occiirrenee aad after ^iitnmnning witaesses vide Ex. P/9, iaquest over fhe dead body ofthe deceased was prepared vide Ex. P/5. Dead body was sent for autopsy to CHC Lohandiguda vide Ex. P/10, where Dr. Virendra Thakur (PW-1) conducted autopsy vide Ex. P/1 and found foUowiag injuries : i. One lacerated wound of 8 x 4 cm x bone deep ii, One lacerated wound over left leg of2 x 3 x 3cm ui. Lacerated woiind aiid contusion over right side offhe scalp of3x2 cni up to bone deep. iv. Contusion over left side ofthe back of3 x 1 cm v, Contusion over right side of the back of 2 x 1 cni Cause of death was head iajuxy aad deafh was homicidal ia nature. Blood staiaed, plaia soil aad blood stained stone were recovered from the spot vide Ex. P/3. Spot map was prcpared vide Ex.P/12< Seized ardcles were sent for chemical exaaimatioa vide Ex, P/13. Statements offhe witaesses were recorded under Section 161 ofthe Code ofCrimmal Procedure, 1973 (ia short the Code). / 4. Afker coinpletion of investigatioxi, char^e sheet was ffled before fhe Judicial Magistrate First Class Jagdalpur, who ia tam, committed fhe case to fhe Court ofSessions, Jagdalpur aad tiie Sessions Judge Jagdalpur conducted fhe tdal, 5. In order to prove fhe guilt of fhe accused/appellaiit, prosecution exaimned as niany as 6 witaesses. Accused was exaaauned under Section 313 of the Code, m which, he deiiied fhe circumstaaces appearing against him, innocexxce aad fal^3 imLpUcation ia crinie ia question was claimed. 6. After afifordmg opportanity of hearmg to t3he paxties, th^ leamed Sessions Jxidge convicted and sentenced tihe appeUaiit as- aforesaid nientioned. 7. We have heard Smt. Savita Tlwari, leamed counsel for the appellaat and Shri D.K. Gwalre, leamed G.A. for the State;, perused fhe judgment impugned and reconl offhe trial Court, 8. Learaed counsel for the appeUaat veheiaeiitly argiiied fhat in light of evidence, prosecution witnesses ao.d the presence of the accused near the place of iacident, she is not disputiag the fact fhat the appellant has not caused homicidal death of the deceased. She farther argued fhat as per evidence ofpiiosecutioxi, appellant and the deceased, who were brofhers, were quarrelMig on account of a laad dispute. There was previous laad dispute. The deceased had caused fatal mjiuy to ftxe appeUaat and at fhi instaace of fhe appeUant, fhe deceased was arrested aad detained ia jail aiid after releasiag from the jail, deceased ^goxn quarreled wifh. the appellaat At fhe tioie of quarrcl, on suddcm provocation without prc-meditation, fhe appellant caused fhe aforesaid injuiy to fhe deceased, Out of all injuries, <mSy one iajury was fatal ia nature. This shows fhat he has not committed any offence of culpable homicide, aiaiounfmg to xniirder of the 4 deceased and fhe act ofthe sippellaat, does not tnavel beyond fhe scope ofSection 304 Part II offhe IPC. 9. On fhe ofher haad, learaed couiisel for fhe State vehemently opposed fhese arguments ao.d submitted fhat CouM bekw has righfly convicted axid sentenced fhe appella3aA undey Section 302 ofthe IPC. 10, In order to appreciate the ai^gumexits ajdvaaced on beh^fof the parties, we have exammed the evidence aidduced on behalf of fhe prosecution. 11, In fhe present case, hoxiiicidal death as a result offetal iojiuy found to fhe deceased, has not been substaatially disputed on behalfofftie appeUant, on the ofher hand, it is estabUshed by fhe evidence of Dr. Virendra Thakur (PW-1) and autopsy report Ex. P/1 and deafh was homicidal in naturc. 12. As regards coinpUcity offhe accused/appellaat ia crixiie iii questipn is concemed, conviction ofthe appellant is substaatiatty based on the evidence of Subti (PW-2), Mita (PW-3) aad Hunga (PW-4). In fhe Ught of presence of tixe accused on fhe spot, it is sufiicient for drawing aa iaference that fhe appellaiit has caused aforesaid injury and homicidal death ofthe deceased. 13. As regards motive isconcenied, motive only aids ia criminality, in case of direct evidence it losses its importanee- Motive caa be iaferred only on fhe basis ofweapon used, part of the body eflTected, nature of mjury aiid ofher sixmlar circunistaGices, 14. In fhe prcsent case, as the iaitial case of prosecution, bofh fhe persons were having land dispute and they were quaraeliag on account of previous laad dispute. Rneviously^ deceased ^^%2y^?^^- ^:a^ ":m^ flN5«ial ^—':-'y assaulted the appellaat and he was arrested and detafaied ia jail. At fhe tiine of ia.cident both were quarreUng and Qn sudden provocatlon, titie appeUant pick up a stone lyiag near fhe place of iacident and pelted it on fhe deceased. This shows ftiat the appellaat was not haviag aiiy weapon aad he has caused iajiMy on sudden quarrel wifhout pre laeditation, la fhese circuiastaiices, the act of fhe appeUaiit does not travel beyond the scope of Section of 304 Part II of the IPC While convictiag aad seiitencmg the appellant, the leanxed Sessions Judge has not considered fhis aspect of fhe case, especiaUy ia ffae light of assault niade dziring fhe quarrel aiid fhereby coxxunitted iUegality. 15. Consequentiy, the appeal is parfly aUowed. Conviction of fhe appeUant under Section 302 ofthe IPG is altercd iato Section 304 Part II ofthe IPC and he is sentenced for the period already undergone i.e. jfrom 12,10.2004 tUl today for more thaa 6 years. The appellaiit is in custody. He be released forthwifti^ if Qot required ia aay other case. — sunita Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge F.