HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. N.K. AGARWAL, JJ. CRIMINAL APPEAL NO. 288 OF 2007 APPELLANT (In jail) Joidaram S/o Karru Rathiya, aged about 55 years) Occupation Agriculture, resident of Bilaskhar, Police Station Gharghora, District Raigarh (C.G.) VERSUS RESPONDENT State of Chhattisgarh Acting through Police Station Gharghora, District Raigarh (C.G.) CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE. Present:— Ms. Hamida Siddiqui, Advocate for the appellant. \x. Mr. J.A. Lohani, P.L. for the State/respondent. JUDGEMENT (Passed on 11/11/2011) The following judgment of the Court was passed bV T.P. Sharma, J:— 1, Challenge in this appeal is to the judgment of conviction' and order of sentence dated 12/12/2006 passed by 4th Additional Sessions Judge (F.T.C.), Raigarh (C.G.) in Sessions Trial N0.‘ 104/2006 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his son Phoolsingh, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 500/—, in default of payment of fine amount additional rigorous imprisonment for 1 month. \ 7.2L . i UU'V’UTWT: ' wwwawwm 2. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. b). As per case of the prosecution, on fateful day of 19/7/2006 at about 2:30 P.M‘ appellant demanded money from his son Phoolsingh (since deceased) for purchasing rice, he denied and abused the appellant thereafter Phoolsingh tried to assault his father i.e. appellant then appellant also assaulted his son Phoolsingh by stick attached with nails, commonly used for controlling the cattle then Phoolsingh fell down and died. Appellantgsk; made extrajudicial confession before his second son PWI Sukhram then Sukhram went to the Police Station and lodged Marg intimation Vide EX. P—l 86 First Information Report vide Ex. P—2. Investigating Officer left for scene of occurrence and after summoning the Witnesses vide EX. P~ 12, inquest over the dead body of Phoolsingh was prepared vide EX. P—3. Spot map was prepared vide EX. P—4. Blood stained and plain soil were recovered from the spot vide Ex. P-7. One axe was recovered from the spot vide EX. P937 r Dead body of Phoolsingh .was sent for autopsy to Community Health Center, Gharghora vide EX. P—13A. PW9 Dr. Prem Bodalkar conducted autopsy vide EX. P—l3 and found following injuries:— 1) Stab wound of lc.m. X lc.m. X lc.m. overjaw. ii) Stab wound of 1" X l” X 1” over right cheek. ( ( ( (iii) Stab wound of l” X 1" x l” over rightjaw, iv) Lacerated wound of 5" X 21/2” x 21/2” over perms 81, scrotum. Death was homicidal in nature. During course of investigation, appellant was taken into Custody, he made discloser statement of stick attached with nails Vide Ex. P—ll, same was recovered at his instance Vide EX. P—8. Sealed cloths of deceased Phoolsingh was seized Vide Ex. P—lO. Seized articles were sent for chemical examination and presence of blood over axe found near the place of incident was confirmed Vide Ex. P— 19. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Raigarh who in turn committed the case to the Court of Sessions, Raigarh from where learned 4th Additional Sessions Judge (F.T.C.), Raigarh (C.G.) has received the case on transfer for trial. In order to prove the guilt of the appellant prosecution examined as many as 15 witnesses. Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. After affording an opportunity of hearing to the parties learned 4th Additional Sessions Judge (F.T.C.), Raigarh (C.G.) has convicted and sentenced the‘appellant as aforementioned. Ms. Hamida Siddiqui, Advocate for the appellant and Mr. J.A. Lohani, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant frankly admits 81, submits that in the light of evidence of PWI Sukhram, son of appellant; she is not disputing the fact that appellant has not made extrajudicial confession before PWI Sukhram that he has not caused death of Phoolsingh. x X Learned counsel for the appellant further submits that as per initial case of the prosecution, First Information Report Ex. P—2 and Marg intimation Ex. P—l, firstly Phoolsingh has caused injury to appellant then appellant has caused injury by stick attached with nails to Phoolsingh therefore, act attributed to appellant does not travel beyond the scope of Section 304 Part—II of the Indian Penal Code. On the other hand, learned Panel Lawyer for the respondent/State opposed the appeal and submits that extrajudicial confession made by appellant befOre PWI Sukhram and injury found over the body of Phoolsingh are sufficient for drawing an inference that appellant has caused homicidal death with intent to cause the death of Phoolsingh. After appreciating the evidence learned 4th Additional Sessions Judge (F.T.C.), Raigarh (C.G.) has rightly convicted and sentenced the appellant as aforementioned. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. In the present case, homicidal death as a result of fatal injury found over the body of Phoolsingh has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW9 Dr. Prem Bodalkar 85 autopsy report Ex. P—l3 and death was homicidal in nature. As per Para—9 of the evidence of PWI Sukhram, injury may have caused by stick attached with nails and not by axe. As regards the complicity of the appellant in crime in question, convictionis substantially based on the evidence of PWI Sukhram before whom appellant has made extrajudicial confession. As per evidence of PWI Sukhram, he'was called by Bedram from his inalaws house, when he \ came to his house then appellant has made extrajudicial confession before him that he has killed his son Phoolsingh by stick attached with nails then he went to the Police Station and lodged Marg intimation EX. P-l 85 First Information Report Ex. P—2. Defence has cross—examined this Witness at length but has not been able t0 elicit anything in his cross-examination to discredit his testimony that appellant has not made extrajudicial confession before this Witness. Extrajudicial confession is a kind of evidence and once it is proved to be true then same may be sufficient for conviction of the accused. In the present case, evidence of PWI Sukhram is sufficient for drawing an inference that appellant has caused homicidal death of his son Phoolsingh. As regard the motive for commission of offence is concerned, motive is only aid in criminality and looses its importance. In case of direct evidence, even otherwise motive can be inferred on the basis of nature of injury, part of the body where injury was caused, weapon used and other like circumstances, As per initial case of the prosecution and the information given by appellant to his son i‘e. PWI Sukhram which he informed t0 Police and First Information Report EX. 13—2, appellant demanded money from his son Phoolsingh for purchasing rice, Phoolsingh denied such demand and instead of giving money, Phoolsingh who was son of appellant abused and assaulted his father i.e. appellant then appellant assaulted his son Phoolsingh by stick attached with nails, commonly used for controlling the cattle and caused his death. Contents of First Information Report are sufficient for drawing an inference that how incident took place, there l6. p was no propriety for appellant to kill his youngest son who was residing with him Without any cause. As per First Information Report EX. P-2, when Phoolsingh youngest son assaulted his father then his father i.e. appellant has caused homicidal death of his son Phoolsingh. This shows that incident took place on spur of moment on sudden provocation without premeditation and on sudden quarrel but at the time of causing such injury, appellant was having knowledge that by his act Phoolsingh may diet Evidence adduced on behalf of the prosecution shows that act attributed to appellant squarely falls within the ambit of Section 304 Part—I of the Indian Penal Code and not Section 304 Part—ll of the Indian Penal Code. While convicting and sentencing the appellant under Section 302 of the Indian Penal Code, Court below has not considered the aforesaid circumstances in which incident took place and thereby committed an illegality. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 of the Indian Penal Code is altered into Under Section 304 Part—I of the Indian Penal Code and sentenced rigorgus imprisonment for 8 years and fine of Rs. 2000/—, in default Judge of payment of fine amount, additional rigorous imprisonment for 6 months. Sd/- " :L Sd/_ 11 N. K.Agarwal i T.P Sharma Judge