'ivC^ ' l-!':L\ I'-^'^y' w^ APPELLANT: (InJail) HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.539 of 2006 Tijuram, aged about 62 years, Son of Shri Shivcharan, Resident of Village Teligundra, P'blice Station Patan, District Durg (C.G.). RESPONDENT: Versus Stafe of Chhattisgarh, Through the Police Station Patan, District Durg (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: , Mr. P.P. Sahu, counsel fortheeippellant. Mr. Akhil Mishra, Deputy Govt. -Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and HonLbleJVIr^R.lsLCJiandrakar, JJ ORAL JUDGMENT (23-8-2011) T.P. Sharma, J: - 8. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24-5-2006 passed by the Sessions Judge, Durg, in Sessions Trial No. 103/2005, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his son Basant and concealing the evidence of criminal case along with co-accused Maniram & Purushottam, convicted the appellant under Sections 302 & 201 read with Section 34 ofthelPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for six months and to undergo Rl for three years & pay fine of Rs.500/-, in defgult of payment of fine to further undergo Rl for one month, respectively. The trial Court has also convicted co-accused Maniram & Purushottam under Section 2fi1 read with Section 34 of the IPC and sentenced each of them to undergo Rl for three years & pay fine of Rs.500/-, in default of payment of fine to further undergo Rl for one month. I- :l:y .Efc-:^' f^ Si:3i 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, Basant (since deceased) was having criminal antecedents. He used to quarrel & fight with his father Tijuram, the appellant herein. In the intervening night of 25 & 26th April, 2005, Basant came to his house and caught hold of the neck ofthe appellant herein, he was pressing the neck ofthe appellant and threatening him for his third marriage on which the appellant roped Basant to a pillar and assaulted him by crow bar over his head resulting in his death. Thereafter, the appellant alongi'with other co-accused persons buried the dead body of Basant inside his house. Kunwar Singh (PW-1 ), next-door neighbour of the appellant, has seen the incident and on second day he lodged FIR vide E)t.P-1. The Investigating Officer left for the scene of occurrence, accused/appellant Tijuram was taken into custody, he made discloser statement of dead body & other articles vide Ex.P-2 and dead body was recovered at the instance of the appellant. After summoning the witnesses vide Ex.P-4, inquest over the dead body of the deceased was prepared vide Ex.P-5. Spot map was prepared vide Ex.P-3. Dead body was sent for autopsy to Community Health Centre, Patan vide Ex.P-20. Dr. Sanjeev Meshram (PW-6) conducted autopsy vide Ex.P-14 and found following injuries: - (1) Lacerated wound of 3 c.m. x 2 c.m. x 3 c.m. over temporal and parietal bonesofskull. (2) Lacerated wound of 3 c.m. x 1 c.m. near first injury. (3) Compound fracture of temporal and parietal bones and also of frontal bone. Mode of death was coma and death was homicidal in nature. Crow bar stained with blood was recovered at the instance of the appellant vide Ex.P-7. Rope was recovered at the instance of the appellant vide Ex.P- 8. Blood stained and plain soil were ^ecovered from the spot vide Ex.P- 9. BloodstainedclothoftheappellantwasseizedvideEx.P-10. Spade, basket made-up of bamboo and small hoe were recovered at the instance of the appellant vide Ex.P-11. Seized articles were sent for chemical examination vide Ex. P-12 and presence of blood over crow bar and rope recovered from the appellantwas confirmed vide Ex.P-22. ^ 'iStl 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, Durg who committed th6 case to the Court of Sessions, Durg where the trial was conducted. \ 5. In order to prove the guilt of the accused persons, the prosecution has examined as many as nine witnesses. The accused persons 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. They have also examined Vishwanath Dheevar (DW-1) who has deposed that the appellant has not made any discloserstatement of.fhe dead body. 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 frankly admits and submits that in the light of evidence of Kunwar Singh (PW-1) corroborated by evidence of other witnesses, he is not disputing the fact that the appellant has not caused homicidal death of the deceased, but evidence of Kunwar Singh (PW-1), Ram Swaroop Dewangan (PW-2) & memorandum of the appellant Ex.P-2 are self-explanatory and are sufficient for drawing inference that the deceased was having criminal antecedents, even at the time of incident.the deceased was trying to kill the appellant and was pressing.his neck. Therefore, with a view to save himself from the criminal activity of the deceased i.e. his son Basant, the appellant has caused homicidal death of his son Basant. In the circumstances, the act of the appellant does not travel beyond the scope of Section 304 Part-11 ofthelPC. \ 9. On the other hand, learned State counsel opposes the appeal and submits that the appellant has commifted homicidal death of his son Basanf and has hidden the dead body. After appreciating the evidence available on the record, the trial Court has rightly convicted & sentenced the appellant. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11.1n the present case, homicidal death of the deceased as a result of fatal injuries found over vital part of his body i.e. head, has not been substantially disputed on behalf of the appellant. Even otherwise, it is established by evidence of Dr. Sanjeev Meshram (PW-6) and autopsy report Ex.P-14 that deathsofthe deceased was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, though learned counsel for the appellant has not disputed homicidal death of the deceased caused by the appellant, even otherwise, same is established by evidence of Kunwar Singh (PW-1) who has specifically deposed that the appellant has caused injury upon the head of the deceased by crow bar resulting in death of the delseased, it is sufficient to establish the fact that the appellant has caused homicidal death of his son Basant. 13.As regards, intention of the appellant for causing homicidal death amounting to murder of Basant, intention can be gathered from the weapons used, nature of injuries, party of the body effected and like other circumstances. 14.1n the present case, Kunwar Singh (PW-1) himself has admitted in para 6 of his cross-examination that just before 10-12 years of the incident the deceased has kidnapped his son. Ram Swaroop Dewangan (PW-2) has also admitted in para 4 of his cross-examination that the deceased threatened him to kill him just 8-10 days prior to the incident. 15.Although confessional part of the statement recorded under Section 27 of the Indian Evidence Act, of the accused/appellant is not admissible to prove case of the prosecution, but the appellant can use such confessional part in support of his defence. Confessional part of the statement recorded under Section 27 of the Indian Evidence Act, of the appellant as Ex.P-2 reveals that on the fateful day, the deceased caught hold of the neck of the appellant and was pressing his neck for killing him and was also threatening him for third marriage on which the appellant was compelled to commit homicidal death ofthe deceased. 16.AII these circumstances are sufficient to establish the fact that the deceased was having criminal antecedents and at the time of incident even he was trying to kill his father i.e. the appellant herein and, therefore, the appellant has caused homicidal death of his son Basant (since deceased). The appellant was not having any intent to cause the S;ma death of the deceased, but on the spur of moment on sudden quarrel, he has committed the aforesaid offence. Therefore, definitely, the act of the appellant does not travel beyond the scope of Section 304 Part-1 of the IPC along with Section 201 read with Section 34 ofthe IPC. 17.While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid circumstances and thereby committed illegality. 18.For the foregoing reasons, the appeal is partly allowed. Conviction & sentences imposed upon the appellant under Section 201 read with Section 34 of the IPC are hereby.maintained. However, instead of convicting & sentencing the appellant under Section 302 of the IPC, the appellant is hereby convicted under Section 304 Part-1 of the IPC and sentenced to undergo Rl for eight years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo Rl for six months. The appellant is in custody since 29-4-2005. He shall be entitled for set off for the aforesaid period of detention already undergone by him. Sd/- T.P.Sharma Judge Sd/- R.N. Chandrakar Judge BSr"--3'