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2014 DIGILAW 188 (CHH)

Mousu v. State of C. G.

2014-04-28

CHANDRA BHUSHAN BAJPAI, T.P.SHARMA

body2014
ORDER T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 15.06.2006 passed by Sessions Judge, Bastar at Jagdalpur (C.G.) in S.T. No. 161/2008 whereby & whereunder after holding the appellant guilty for causing homicidal death of deceased Daumuram, amounting to murder, convicted him under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 200/- in default to undergo additional R.I. for two months. Conviction is impugned on the ground that without being an iota of evidence the trial Court has convicted & sentenced the appellant as aforementioned, and thereby committed illegality. 2. As per case of the prosecution on the fateful morning of 24.09.2008 at about 5.30 a.m. unfortunate deceased Daumuram was present along with Nadgu (PW-1), they were enjoying the fire, the appellant came and asked deceased Daumuram, why he used to quarrel with his family members and thereafter he assaulted him by axe over his head which resulted into his instantaneous death. After causing homicidal death of Daumuram, the appellant fled from the spot leaving axe (Tangia). Nadgu (PW-1) informed the relatives of the deceased and went to police Station- Frazerpur and lodged FIR vide (Ex. P-12). Merg was recorded vide (Ex. P-2). The Investigating Officer left for scene of occurrence and after summoning the witnesses vide (Ex. P-9), inquest over the dead body of the deceased was prepared vide (Ex. P-10). Blood-stained soil and plain soil were recovered from the spot vide (Ex. P-3). Dead body was sent for autopsy to the Primary Health Centre, Nangur, where Dr. J.L. Dariyan (PW-6) conducted autopsy vide (Ex. P-6) and noticed following injuries:- I. One incised wound above right ear over the temporal bone size of 2 X 2 X 1 cm. with cut fracture of temporal bone. Injuries were anti mortem in nature and cause of death was shock. Clothing of deceased sealed by the doctor was taken into possession vide (Ex. P-16). Statements of witnesses were recorded under Section 161 of Cr.P.C. 3. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Bastar. In order to prove guilt of the appellant, the prosecution had examined as many as seven witnesses. P-16). Statements of witnesses were recorded under Section 161 of Cr.P.C. 3. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Bastar. In order to prove guilt of the appellant, the prosecution had examined as many as seven witnesses. Statement of the appellant was recorded under Section 313 of Cr.P.C. where he denied the circumstances appearing against him in the prosecution case and pleaded innocence & false implication. 4. The trial Court, after providing opportunity of hearing to the parties, convicted and sentenced the appellant as mentioned in paragraph-1 of this judgment. 5. We have heard learned counsel for the parties, perused the impugned judgment and record of the trial Court. 6. Learned counsel for the appellant vehemently argued that the evidence of Nadgu (PW-1) does not inspire confidence and trustworthy. Deceased was present with him, appellant was not seen by any other person except alleged Nadgu (PW-1), whose conduct is suspicious. His evidence may be sufficient for drawing suspicion that the appellant may have committed the offence but the same is not sufficient for drawing inference that, only appellant has committed cause death of the deceased which was homicidal. He further submits that even otherwise this is the case of single blow and on account of sudden quarrel by the deceased with family members of the appellant, he has caused single blow, but not intentionally, therefore, his act does not travel beyond the scope of Section 302 part II of the IPC. 7. On the other hand, learned State counsel opposed the appeal and submitted that evidence of Nadgu (PW-1) is sufficient for proving the guilt of the appellant that he has committed murder of the deceased and the Court below has rightly convicted and sentenced the appellant. 8. In order to appreciate arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 9. In the present case, homicidal death of the deceased as a result of fatal injuries found over the body of the deceased has not been substantially disputed on behalf of the appellant. Even otherwise, from the evidence of Nadgu (PW-1), Dr. J.L. Dariyan (PW-6) and autopsy report (Ex. P-6), it is established that death of the deceased was homicidal in nature. 10. Even otherwise, from the evidence of Nadgu (PW-1), Dr. J.L. Dariyan (PW-6) and autopsy report (Ex. P-6), it is established that death of the deceased was homicidal in nature. 10. As regards complicity of the appellant, as per evidence of eye witness Nadgu (PW-1), he has witnessed the incident. As per his evidence, they were enjoying the fire in the month of September at morning, appellant came and asked deceased Daumuram, why he used to assault his children, Domuram the same, then the appellant caused single blow by axe (Tangia) over the head of the deceased as a result he fell down and died. Nadgu (PW-1) informed other relatives. The defence examined this witness at length and he has denied the suggestion that he has caused homicidal death of the deceased. He was as specifically deposed that the appellant and caused single blow. His evidence well corroborated by the promptly lodged FIR (Ex. P-1) is sufficient for during the interference that the appellant has caused homicidal death of the deceased. 11. As regards the motive is concerned, the motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred only the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 12. In the present case, on account of family dispute and quarrel especially as per evidence of Nadgu (PW-1) the deceased used to assault children of the appellant, the incident took place and the appellant assaulted by axe over the head of deceased. This shows that the appellant had caused only single blow, and thereafter the appellant fled from the spot, which is suggestive of the fact that the appellant has not caused homicidal death of the deceased with intent to cause his death amounting to murder. Consequently, if the case of the prosecution and the act attributed to the accused is considered, then the act attributed to the appellant does not travel beyond Section 304 Part-II of the IPC for the reason that the appellant has not caused injury in an unusual manner or mercilessly or brutally. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC is altered into Section 304 Part II of IPC and he is sentenced to undergo R.I. for 8 years. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC is altered into Section 304 Part II of IPC and he is sentenced to undergo R.I. for 8 years. The appellant is in custody from 24.09.2004 and thereby he has completed more than 08 years therefore he be set at liberty forthwith if not required in other case. Appeal Partly Allowed.