H1GH COURT OFCHHATTISGARH. BILASPUR Criminal Appeal No.540 of 2005 lA'. APPELLANT: (In Jail) RESPONDENT: APPELLANTS/: (Accused)/ (Convicts in jail) RESPONDENT/: (Prosecution) Rambaran @ Ghuran S/o Bhaiya Lat Khairwar, aged about 21 years, Labourer, R/o Village Charcha, Shivpur, P.S. Baikunthpur, District Korea (C.G.) Versus State of Chhattisgarh Through S.H.O., P.S. Baikunthpur, Distt. Korea (C.G.) AND Criminal Appeal No.542 of 2005 1. ' Devidayal @ Chandra S/o Bandhan Unraw, aged about 24 years, occupation Driver 2. Laxman S/o Bandhan Unraw, aged about 31 years, occupation Labour. Both R/o village Characha (Shivpur) P.S. Baikunthpur, District Korea (C.G.) Versus State bf Chhattisgarh Through Station House Officer, Police Station Baikunthpur, District Korea (C.G.) {Criminal appeals under Section 374 of Criminal Procedure Code} Present: Mrs. Meena Shastri, counsel for the appellant in Cr.A.No.540/2005. Mr. Vishnu Koshta, counsel forthe appellants in Cr.A.No.542/2005. Mr. S.R.J. Jaiswal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORALJUDGMENT (21-1-2011) T.P. Sharma, J: - 1. Since the aforesaid two criminal appeals are arising out of the same judgment of conviction & order of sentence dated 21-6-2005 passed by the Additional Sessions Judge, Baikunthpur, in Sessions Trial No.498/2004, they are being dispo?ed of by this common judgment. 2. Challenge in these appeals is to the judgment of conviction & order of sentence dated 21-6-2005 passed by the Additional Sessions Judge, Baikunthpur, in Sessions Trial No.498/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Butan and sharingcommon intention, convicted the appellantsunder Section 302 read with Section 34 ofthe IPC and sentenced each ofthem to undergo jmprisonment for life & pay fine of Rs.1,000/- each, in default of payment of fine to further undergo Rl for six months. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 4. As per case of the prosecution, on the fateful day of 29-9-2004 atabout 9 p.m. the appellants ajong with another accused person chased Butan (since deceased) andassaulted him in his vegetable garden, thereafter they dragged him from vegetable garden and again assaulted hjm, and as a result of such injuries Butan died at about 12 mid night. On second day FIR was lodged by Raj Kumari (PW-3) vide Ex.P-14 and merg was recorded vide Ex.P-15. Finally, numbered FIR was registered vide Ex.P- 13. The Investigating Officer left for the scene of occurrenceand after summoning 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 Assistant Surgeon, Goverhment Hospital, Baikunthpur. Dr. S.K. Gupta (PW-5) conducted autopsy vide Ex.P-1 1 and found following injuries: - (1) Six contusions over back and left thigh of 11 c.m. x 2 c.m. to 21 c.m. x3c.m.. (2)Abrasion overright knee of2c.m. x 2 c.m.. (3) Abrasion over left knee of 2 c.m. x 2 c.m.. (4) Abrasion over left leg of 2 c.m. x 1 c.m.. (5) Abrasion over right buttock of 3 c.m. x 2 c.m.. (6) Internal haematoma of 6 c.m. x 3 c.m. in subdural region. (7) Mode of death was coma. 5. During the course of investigation, accused/appellant Devidayal was taken into custody, he made discloser statement of stick vide Ex.P-1 and ,1 @ same was recovered at his instance vide Ex.P-2. Accused/appellant Laxman was taken into custody, he made discloser statement of stick vide Ex.P-3 and same was recovered at his instance vide Ex.P-4. Accused/appellant Rambaran was also taken into custody, he made discloser statement of stick vide Ex.P-5 and same was recovered at his instance vide Ex.P-6. Do6uments were seized from Raj Kumari vide Ex.P-9. Patwari prepared spot map vide Ex.P-10. The Investigating Officer also prepared spot map vide Ex.P-16. ^ 6. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Baikunthpur who committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. 7. In orderto prove the guilt of the accused, the prosecution has examined as many as ten witnesses. Theaccused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 1 ' ~ 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting accused Rama, convicted & sentenced theappellants as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 10.Mrs. Meena Shastri & Mr. Vishnu Koshta, learned counsel for the appellants, vehemently argued that in the light of evidence of Raj Kumari (PW-3) - wife of the deceased, child witnesses Babu Singh (PW-6) & Sanjay Kumar (PW-7) - sons of the deceased, they are not disputing the fact that the appellants have caused injuries to the deceased, but they submit that the appellants have not caused any injury with intent to cause death of Butan. Learned counsel further submit that after consuming liquor when deceased Butan was abusing lady members of the family of the appellants, the appellants resisted and only with a view to teach him lesson, they have caused some simple injuries to the deceased. No injury was found fatal and the appellants have not caused injuries over head of the deceased resulting in his death. 4 S^ 11.0n the other hand, learned State counsel opposes the appeals and submits that the appellants have caused homicidal death of the deceased with intent to cause his death. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants. 12.1norder to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13.1n the present case, homicidal death of deceased Butan as a result of injuries found over head hasnot been substantially disputed onbehalfof the appellants, otherwise also it is established by the evidence of Dr. S.K. Gupta (PW-5) and autopsy report Ex.P-11 that death of Butan is homicidal in nature. 14.Although the appellants have not disputed the fact that they have caused injuries to Butan, but same is also established by the evidence of Raj Kumari (PW-3), child witnesses Babu Singh (PW-6) & Sanjay Kumar (PW-7). This evidence is sufficient to establish the fact that the appellants havecaused homicidal death ofthe deceased. 15.As regards the question of motive, motive only aids in criminality and in caseofdirect evidence it loses its importance. Motivecan be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 16. In the present case, as per evidence of Raj Kumari (PW-3), the appellants have assaulted her husband at 4 p.m., thereafter they again assaulted at 9 p.m. and then they dragged him in the village and caused repeated injuries. As per autopsy report, subdural haematoma was found on head of the deceased in the size of 6 c.m. x 3 c.m.. Other injuries found over the person of the deceased are simple in nature and they are not even on vital parts of the body. This supports case of defence that the appellants have not caused any fatal injury over vital part of body of the deceased, but whjle causing multiple injuries, they were having knowledge that by their act, the deceased may die. Circumstances in which the appellants have caused injuries and nature of injuries reveal that they have not caused any injury with intent to cause death of the deceased. The act attributed to the appellants in sharing common intention does not travel beyond the scope of Section 304Part-llofthelPC. fl^Aa—^ ^2'.^ ^ "t'/ s^^^^;"' Soma 17.While convicting & sentencing the appellants, the trial Court has not considered the aforesaid aspects ofthe case, circumstances and nature ofinjuries, and thereby committed illegality. 18.Consequently, both the appeals are partly allowed. Conviction of the appellants under Section 302 read with Seption 34 of the IPC is altered to Section 304 Part-11 read with Section 34 of the IPC. Considering number and nature of injuries, the appellants are hereby sentericed to undergo Rl for seven years & pay fine of Rs.1,000/- each, in default of payment of fine to further undergo Rl for six months. They are in custody since 1-10-2004. They are entitled for set off for the period alrea^lyundergone by them. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge k-