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2011 DIGILAW 153 (CHH)

BANSI RAM VARMA v. STATE OF C. G.

2011-04-19

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 20-12-2006 passed by the Sessions Judge, Rajnandgaon in Sessions Trial No.59/2006, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Maniklal Varma, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs. 500/-, in default of payment of fine to further undergo SI for two months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 6-3-2006 at about 7 p.m., on account of dispute with Maniklal Varma (since deceased) in the market, the appellant stopped Maniklal Verma while he was coming from market by motorcycle along with Hemial (PW-4) and assaulted Maniklal by bamboo stick over his head & face as a result of which Maniklal fell down and thereafter, the appellant fled away from the spot. Bahoran (PW-3) brought injured Maniklal to the house and after some time, Maniklal succumbed to the injuries sustained by him. FIR was lodged vide Ex.P-2 and merg was recorded vide EX.P-3. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-4, prepared inquest over the dead body of the deceased vide EX.P-5. Spot map was prepared by the Patwari vide EX.P-l. Bloodstained and plain soil were recovered from the spot vide EX.P-8. Spot map was also prepared by the Investigating Officer vide Ex.P10. Dead body was sent for autopsy to Government Hospital, Dongargarh vide Ex.P-13A. Dr. Vipin Jain (PW-8) conducted autopsy vide Ex.P- 13 and found swelling over right temporal region, right cheek and head, brain membrane was found ruptured and part of brain came out from the brain membrane. Cause of death was trauma to vital part and haemorrhagic shock. During the course of investigation, the accused was taken into custody, he made disclosure statement of bamboo stick vide Ex.P-6 and same was recovered at the instance of the accused vide Ex.P-7. Seized articles were sent for chemical examination vide Ex.P- 16. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. During the course of investigation, the accused was taken into custody, he made disclosure statement of bamboo stick vide Ex.P-6 and same was recovered at the instance of the accused vide Ex.P-7. Seized articles were sent for chemical examination vide Ex.P- 16. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Dongargarh who committed the case to the Court of Sessions, Rajnandgaon where trial of the case was conducted. 5. In order to prove the guilt of the accused, the prosecution has examined as many as ten witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against hip, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant submits that in the light of evidence of Bahoran (PW-3), Hemlal (PW-4) & Fagguram (PW-5) - eyewitnesses~ he is not disputing the fact that the appellant has caused injuries to the deceased, but he further submits that as per evidence of these witnesses, on account of immediate quarrel in the market, the appellant has caused aforesaid injuries to the deceased on provocation, he was not holding any dangerous weapon, but has caused injuries by bamboo stick which was very common object which the villagers use for all purposes. After causing three injuries, the appellant fled away from the spot, he has not caused further injuries resulting in death of the deceased which shows that the appellant has not caused homicidal death with intent to cause death of Maniklal Varma. Therefore, act of the appellant does not travel beyond the scope of Section 304 Part-II of the IPC. 9. On the other hand, learned State counsel opposes the appeal and submits that on account of dispute in the market, the appellant stopped the deceased and caused repeated injuries over head resulting in his death which shows grave intention of the appellant, of causing death of the deceased. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant. 10. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellant. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death of deceased Maniklal Varma as a result of fatal injuries found over head has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr.Vipin Jain (PW -8) and autopsy report Ex.P-13 that death of deceased Maniklal Varma was homicidal in nature. 12. As regards complicity of the appellant in the crime in question, conviction of the appellant is substantially based on the evidence of Bahoran (PW-3), Hemlal (PW-4) & Fagguram (PW-5) who have witnessed the incident. 13. As per evidence of Hemlal (PW-4), on the fateful day he was coming on motorcycle with Maniklal Varma (since deceased), Maniklal Varma was driving the vehicle, the appellant stopped the motorcycle and asked Maniklal Verma as to why he has quarrelled with him in the market, thereafter, the appellant caused injuries over head of Maniklal and then fled away from he spot. Bahoran (PW-3) & Fagguram (PW-5) have substantially corroborated the evidence of Hemlal (PW-4). 14. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony to the extent that the appellant has not stopped the deceased and has not asked why he has quarrelled with him in the market, and has not caused injuries to the deceased. This evidence is sufficient to establish the fact that the appellant has caused homicidal death of the deceased. 15. As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred, on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 16. 15. As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can 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 initial case of the prosecution and evidence of Sahoran (PW-3), Hemlal (PW-4) & Fagguram (PW-5), some quarrel took place between the appellant & the deceased in the market, the appellant was present near his shop, he was holding bamboo stick, he stopped the deceased and asked as to why he has quarrelled with him in the market, thereafter, the appellant has caused three injuries on the person of the deceased. As per autopsy report, no fracture has been caused, swelling was found over head and internal brain membrane was found ruptured. After causing three injuries, the appellant fled away from the spot. These facts show that at the time of causing injuries, the appellant was having knowledge that by his act, especially by making assault over head of the deceased, the deceased may die, but he has caused injuries on account of immediate dispute took place in the market which was the cause of provocation to the appellant. In these circumstances, act of the appellant does not travel beyond the scope of Section 304 Part-II of the IPC. 17. While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the circumstances and nature of injuries and thereby committed illegality. 18. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-II of the IPC and the appellant is hereby sentenced to undergo RI for six years and pay fine of Rs.5,000/-, in default of payment of fine to further undergo RI for one year. The appellant is in custody since 8-3-2006, he is entitled for set off for the aforesaid period of detention. Appeal Partly Allowed.