c a' T.P. S HOH'BLE 5SR. RSSQN'ATK CHAiIDR&KAa. JJ. ttnl HNJAIU Jaiprakash S/o Vikukam, Aged ycsrs, Occupotlou a 26 ARribulture, Resident of Village KaKaiya., Police oLauon Baikujifhpur, District Korea T3 {C.G.t. State of Chhattisgarh. Present: Mr. Mahendra Dubey, Advocate for the appellant. Ms. Madhu NishaSmgh, P.L. forthe State/respondent. JUBGBMEI (Passed on 33/11/2011) T'he foUowinR tudgment of the Coiirt was passed bv ^.^ ChaUenge in this appeal is to fhe judgment of conviction and order of sentence dated 30/6/2005 passed by Additional Sessions Judge, Baikuritlipui- District Koriya (C.G.) in Sessions Trial No. 499/2004 whereby and where under after holding the appeUant ;uilty for the commis^sion of offence of culpable homicide amountine to murder of Manglu, wbjle acquitting co-accused REuesh, convicted ttie''&.ppeUant under Section' 302 of fhe Indian Penal Code and sentenced miorisonm.ent for life and fine of Rs. 1000/-, 2 '^ in default of payment of fine auiount, additional rigorous imprisonmeitt for 3 iiionttis. Conviction is impugned on the ground fhat without any iota of evidence sufficient for connction of appellant Court below has convicted. and sentenced the appellant as aforementioned and therebv comiaitted an illeeallty. 3. As per case of the prosecution, in fhe inten/entng night of 4/10/2005 & 5/10/209.5, appeUant who. consumed liquor along with co-accused Rajesh assaiilted Manglu (stnce deceased) who was also in drunken stage by cable rod, Rajesh caused injun7 by axe and causecl instantaneous deafh of Manelu thereafter they dragged body of Manglu into kitchen garden of PW8 Jagguram at village Rakaiya, Police Station Baikunthpur. On second day Marg intunation was recorded vide Ex. P- 15. Investigating Ofllcer left for scene of occurrence and after suinmoning the wttaesses vide Ex. -2, inquest over Uie dead body of Ma-iiglu was prepared mde Ex. P- 3. Blood stained & plain soil were recovered from fhe spot vide Ex. P-4. Broken piece of botfle was seized from fhe spot vide Ex. P-5. Dead body of Manglu was sent for autopsy to Assistant Surgeon Govt. Hospital, Baikunthpur where PW5 Dr. D.K. Chikeniuri conducted autops}? vide Ex. P-12 and found followtn^ injunes:- (i) Abrasion over head of 3" x 2". (ii) Abrasion over left eye'of 3.5" x 3". (iiil Incised wound over left side of chin of 3.5" x 1A" Q, mandible bone was visible; (iv) Hole on neck of 7 x 4.05". Mode of 'deatli was asuhvxia and death was homicidal m. nature. '^ Durmg course of mvestigation, appeUant Jaiprakash was taken into custodv, he raade discloser statement of cable rod vide Ex. P-8, same was recovered at his instance vide Ex. P-9. Co-accused Rajesh made discloser stateraent-of axe vide Ex. P-6, saine was recovered at his instance i.'lde Ex. P-7 along with blood stained cloths 8s stick. Patwari prepared spot map vide Ex. P-14 on the basis.'/pf Marg uitimation Ex. P-15, Dehatinalishi \VSLS recorded vide Ex. P-16. Finsilv, Ftrst Information Report was registered vide Ex. P-21. Spot map was prepared vide Ex, P-17. Seized articles were sent for chemical exainination and presence of blood over stick, axe and cloths seized from Raiesh has been confirmed vide Ex. P-22. Statements of the witnesses were recorded under Section 161 of the Code of Crimuial Procedure, 1973 (in short fhe Code^. After completion of fhe iiivestigation charge sheet was filed before fhe Chief Judicial Magistrate, Baikunfhpur who in tum com.mitted fhe case to the Court of Sessions, Koriya from where leamed AdditioTial Sessions Judge, Baikunttipur District Koriya (C.G.) has received the case on transfer for trial. In order to orove the guilt of the appellant and co- accused, prosecution examined as many as 12 witoesses. Accused persons were examined rmder \. Section 313 of the Code where they denied fhe circumstances aopearine against them and pleaded innocence and false im.plication m fhe criine in question. After at'fording an opportunity of hearing to the parties, leamed Additional Sessions Judge, Balkunfhpiir District Koriya (C.G.) while acquitting co-accused % i^ Rajesh, con\ricted and sentenced the appeUant as aforementioned. 8. Mr. Mahendra Dubey, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for fhe State/respondent are heard. Judgment-impugned and record offhe Court below perused. 9. Leamed counsel for fhe appeUant vehemently argued fhat conviction of fhe,i:appellant is based on tfae evidence of PW1 Jaipal, PW8 Jagguram & PW9 Laganbai but their stateraent under Section 161 of the Code has not been recorded immediately even ihey were present at fhe time of recording of Marg tntfanation Ex. P-15 but they had not stated anything to Police. Their evldence is full of suspicion and does not inspire confidence & trust'.vorthv. 10. Learaed counsel for the appellant further argued that even if fhe evidence of aforesaid witnesses is considered then only inference would be possible that present appeUant has caused injun^ to Manglu by cable rod when both were under stage of mtoxication but co- accused Rajesh has caused fatal injury by axe over the head aad neck which were fatal and sufficient for causing deafh of Manglu therefore, if fhe evidence of aforesaid witnesses are considered in its face value then fhe act of appeUant does not travel beyond fhe scope of Section 304 Part-II of the Indian Penal Code. V; 11. On the other hand, leamed P.L. for tiie respondent/State opposed the crimtnal appeal and areued that evidence adduced on behalf of prosecution is sufilcient for conviction and sentence of fhe appeUant and Court below has riehflv convicted and sentenced the appellant as aforeinenttoned. 1-> 13. 15. In order to appreciate the aj~guments advanced on behatf of the parties, we have exam.ined the eiddence adduced on behalf of fhe prosecution. In fhe present case, homicidal deafh as a result offatal inji-ir\r found over the body of Manglu has not been substantially disputed on behalf of the appellant on the other hand. otherwise also estabUshed bv the evidence of PW5 Dr. D.K. Chikeno'uri & autopsy report Ex. P-12 and deafh of Manglu was homicidal in nature. As regards tlie complici^ of appellant in crinie in question is concerned, as per initial case of the prosecution, fatal injui-;? has been caused by Rajesh ancl not by Jaiprakah. Prosecution has exauiined PW1 Jaipal, PW8 Jagguram & PW9 Laganbai as eye-sntnesses who has deposed tbat appellant has caused mjury by cable rod to Manglu Ull his deafh thereafter they dragged ttie dead body in fhe kitchen ;arden. Statement under Section 161 of the Code of these witnesses only recorded on 5/10/2004 i.e. second dav of the incident, thev have deposed tn detail about fhe incident. Defence has cross-examined these witnesses at length but has not been able to elicit anvthing in fhetr cross-exaraination to discredit fheir testimonv to the extent that appeUant has not caused repeated uijury to Manglu, although, insufiiciency of evidence, Court below has acquitted co-accused Rajesh V; but UabUity cannot be fastened upon present appeUant in absence of any cogent ei./idence relattng to injur\' caused by axe and Manglu died on the spot As per initial case of the prosecution, two accused persons have caused iniurv to Manslu till his death and firsfly appellant has caused injur^' by cable rod, a kind of dangerous weapon. Considering the injurv?, & tnitial ^ :': i!igi A 'ai»!iffl»i^ act of alleged Rajesh, evidence adduced on behalf of the prosecution is not ^.sutlicient to prove the fact that appeUant has caused hoiaicidal deafh with intent to cause deafh of Manglu but evldence adduced on behalf of the prosecution is sufficient to prove the fact that at the time of caustng such injui^', appellant was havui^ knowledge fhat by his act, Manglu m.ay die therefore, act attributed to appell^pt squarely falls withtn fhe .,(; am.bit of under Section 304 Part-II of the Indian Penal Code. While convictmg and sentencing the appeUant under Section .302 of fhe Indian Penal Code, Court below has not considered aforesaid circmnstances and therebv committed an Ulegalitv. For the foregoing reasons, crimmal appeal is parfly allowed. Conviction aiid sentence of fhe appellant iiader Section 302 of fhe Indian Penal Code is altered uito under Section 304 Part-II of fhe Indian Penal Code and is sentenced rigorous imprisonment for custodial period. AppeUajit is tn custody stnce 6/10/2004 tUl today and has completed more than 7 years, he be released forthwith. if not reaulred in anv other case. Sd/- Sharma Judge Sd/- . R.N. Chandrakar Judge ^•ii '.^1 IBflB III 88