..'-"^ j ^ ff (^^' 3f^. l HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon^bleShrLT.P. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 962 of 2004 Appellant (in jail) Vs. Respondent. Melan Singh s/o. Vidur Ram, aged 19 years, r/o. village Kedma, P.S. & Tahsil- Lakhanpur and Ambikapur, District Surguja (CG). State of Chhattisgarh through District Magistrate Surguja (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. Vivek Kumar Pandey, counsel for the appellant. Mr. Akhil Mishra, Panel Lawyer for the State. Mr. Arun Kumar Shukla, counsel for the objector. ORAL JUDGMENT (Delivered on 29-7-2011) Per T.P. Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30-9-2004 passed by IV Additional Sessions Judge (FTC) Ambikapur, Surguj'a (CG), in Sessions Trial No. 61 of 2004, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide death amounting to murder of Manoj, convicted the appellant under Section 302 of the IPC and sentenced him to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine to undergo further Rl for 6 months. ^. Conviction of the appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, unfortunate deceased Majoj was having illicit relation with the unmarried sister of appellant namely Hema Singh (PW/2). On fateful intervening night of 28-11-2003 at about 1.00 a.m., when appellant came back to his house after watehing TV, he saw the room of his unmarried sister Hema Singh (PW/2) locked from outside. On suspicion he entered into house by jumping the wall where he saw from window that deceased Manoj and sister of appellant Hema Singh (PW/2) were sleeping together. On seeing the incident appellant annoyed, after breaking the lock of room of Hema Singh (PW/2)appellant picked up a crowbar and caused fatal injuries over the head of deceased as a result of which deceased fell down in his verandah and became unconscious. Thereafter, appellant went to the house of deceased and informed his parents that deceased Manoj was lying unconscious in his verandah. The parents of deceased came there, took Manoj to Police Station, Lakhanpur where Nanhuram Agrawal (PW/14), father of deceased lodged first information report videEx.P/17. Deceased Manoj was examined by Doctor Premsingh Marko (PW/9) vide Ex.P/8 and found the following injuries; i) lacerated wound over right parietal bone of4x 1x.5 cm, ii) lacerated wound over occipital region of7 x 2x2 cm and iii) lacerated wound over 5. right ear of 1 x.5 x.5 cm and advised for x-ray. During the course of treatment Manoj died. Merg was intimated by Doctor Premsingh Marko (PW/9) vide Ex.P/9 and merg was recorded by Police vide Ex.P/10. After summoning the witnesses vide Ex.P/11, inquest over the dead body of deceased was prepared vide Ex.P/12, spot map was prepared vide Ex.P/13, dead body of deceased was sent for autopsy to Government Hospital, Ambikapur vide Ex.P/14 where Doctor J.K. Jain (PW/20) conducted postmortem vide Ex.P/20 and found the aforesaid injuries mentioned in Ex.P/8 and opined that mode of death was coma. During the course of investigation, spot map was prepared by Patwari vide Ex.P/12. Accused/appellant was taken into custody and he made a disclosure statement of crowbar vide Ex.P/4 and same was recovered at his instance vide Ex.P/5. Blood stained soil and plain soii were recovered from the verandah of the appellant and one piece of shoe of deceased was recovered from the room of Ku. Hema Singh (PW/2) vide Ex.P/6, spot map was also prepared vide Ex.P/7and sealed clothes of deceased were seized vide Ex.P/16. Ku. Hema Singh (PW/2) was also examined by Doctor I.D. Bhatnagar (PW/12) vide Ex.P/15 who found one contusion over head and merg was also recoded vide Ex.P/25. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge, ^ "^ 8. 9. received the case on transfer for trial, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. In order to prove the guilt of the appellant, prosecution examined as many as twentythree witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocenceand false implication. Accused examined defence witnesses namely Tilak Singh (DW/1), Bhojpal (DW/2) and took defence that deceased was in a habit of liquor. After affording opportunity of hearing to the parties, learned Additional Sessions Judgeconvicted and sentenced the appellant as aforementioned. During pendency of the appeal additional evidence relating to FSL report has been taken and additional examination ofthe appellant has been recorded. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial court. Mr. Vivek Kumar Pandey, learned counsel appearing for the appellant vehemently argued that although prosecution has not collected direct and conclusive evidence against th^ appellant to connect the appellant with the crime in question, but from the evidence of PW/1 - Dulari Devi, PW/2 - Ku. Hema Singh, PW/3 - Vidur Ram, PW/4 - Devamniya, PW/5- Indrapal, PW/6-Raj'esh Agrawal, PW/7 - Jitendra Kumar Paikra and PW/14- Nanhuram, prosecution has established the fact that the present appellantwas the person who has caused fatal injuries to deceased, therefore, he 10. is not disputing the fact that the present appellant has not caused homicidal death of deceased. He further submits that as per initial case of prosecution deceased was sleeping with unmarried sister of appellant in the room of his sister at night. When the appellant came to his house after watching TV and saw the deceased sleeping with his sister, he lost his temper and after breaking the lock of room of his sister, he caused such injuries to the deceased but after causing such injuries he also informed the parents of the deceased about the jncident. This shows that without pre- meditation and on a sudden provocation, when the appellant saw the deceased sleeping with his unmarried sister in the room of his sister, he caused the aforesaid injuries to the deceased, therefore, the act attributed to the appellant does not travel beyond the scope ofSection 304 Part II ofthe IPC. On the other hand, Mr. Akhil Mishra, learned Panel Lawyer for the State appearing on behalf of the State opposed the appeal and submitted that as per case of prosecution, on account of aforesaid motive and after seeing the deceased sleeping with his unmarried sister, present appellant caused the aforesaid injuries to the deceased, but the evidence adduced on behalf of the prosecution clearly reveals that the appellant took out the crowbar, broke the lock of the room of his sister and thereafter he caused injuries to the deceased which shows his grave intention and causing such injuries resulting into his death and the court below has rightly convicted and sentenced the appellant as aforementioned. 11. Mr. Ashok Kumar Shukla, learned counsel appearing for the objector has supported the submissions of learned counsel for the State. 12. In order to appreciate the arguments advanced by iearned counsel forthe parties, we have examined the evidence adduced on behalf ofthe prosecution. 13. In the present case, homicidal death as a result offatal injuries over the body of deceased Manoj, has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor Premsingh Marko (PW/9), injury report vide Ex.P/8, Doctor J.K. (PW/20) and autopsy report (Ex.P/20), death of Manoj was homicidal in nature. 14. As regards complicity of the appellant in the crime in question, conviction is substantially based on a piece of the evidence and chain of evidence. As per evidence of Ku. Hema Singh (PW/2) - sister of appellant, deceased was lying in her verandah in injured condition, thereafter appellant along with Indrapal went to the house of parents of deceased and informed his parents about the incident. As per evidence of PW/1 Dulari Bai and PW/14 Nanhuram, parents of the deceased, at about 3.00 a.m. at night they were informed by the appellant that their son Manoj was lying injured in unconscious condition in the verandah of the appellant. Likewise, the evidence of other witnesses also corroborate the aforesaid facts. As per evidence of PW/7 Jitendra Kumar Paikra, appellant returned to his house after watehing TV at about 12.30 night. The evidence of these witnesses are sufficient to establish w 15. the fact that injured body of deceased was lying in the verandah of the appellant. As per evidence of PW/6 - Rajesh Agrawal, Investigating Officer and PW/23 Mohisin Khan, one piece of shoe of deceased was recovered from the room of Ku. Hema Singh (PW/2). The appellant made a disclosure statement of crow-bar which was in a hidden position vide Ex.P/4 and same was recovered at the instance of appellant vide Ex.P/5. As per evidence of PW/2 Ku. Hema Singh, she was having love affair with deceased who used to visit her house frequently. If the aforesaid circumstances are considered together, then only inference would be possible that on account of aforesaid love affair, appellant was not happy with his unmarried sister and deceased. On the date of incident deceased was found sleeping with his umarried sister Ku.Hema Singh (PW/2) in her room, which finds support from the seizure of a piece of shoe of deceased in the house of appellant. After seeing the deceased sleeping with his sister, the present appellant caused injuries to the deceased at about 12.30 at night when he came back from the house of Jitendra Kumar Paikra (PW/7) after watching TV. This evidence is sufficient to establish that the present appellant was the person who had caused homicidal death of deceased. As regards question of motive and intention is concerned, as per evidence of Ku. Hema Singh (PW/2), she was having love affairs with deceased long time and her family members were also not happy with their relation, therefore, it was not motive for commission of homicidal death of deceased but when the appellant SAi 16. saw the deceased sleeping with his unmarried sister in her room, he lost his temper and mental balance and caused aforesaid injuries. This shows that on a sudden provocation, which was natural, the appellant caused aforesaid injuries to the deceased and definitely the act attributed to the appellant does not travel beyond the scope of Section 304 Part II of the IPC. While convicting and sentencing the appellant, the court below has not considered the circumstances in which the incident took place and thereby committed illegality. 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 sentenced to undergo to the period already undergone. The appellant is in custody since 29-11-2003 till today for about more than seven years and eight months. He shall be released forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge