t;"'ii^i^^^-ir ;i!i'^iri?l^; ^E;^'?.;:?' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BBNCH CORAM: HON'BLE MR. T.P. SHARMA & HON'SLE MR. R.L. JHANWAR. JJ. CRIMINAL APPEAL N0. 1190/2003 APPELLANT (IN JABL CUSTODY) VERSUS RESPONDBNT .iBharat Son of Bhikhu Ram Dhobi, aged about 30 years, resident of VUlage-Koudikasa, P.S. Ambagarh Chowki, Distt. - Rajnandgaon (Chhattisgarh). State of Chhattisgarh, fhrough: P.S. Ambagarh Chowki, Distt.- Rajnandgaon (Chhattisgarh). !^«=«<a CRIMINAL APPEAL UNDEai SECTION 374 (2t Cr.P.C. Present- Mr, V.P, Gupta, Advocate for the appeUant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent ORAL-JUDGEMENT (Passed on 21/09/2010) The following iudgment of (he Coiirt was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to fhe judgment of conyiction and order of sentence dated 30/9/03 passed by Ftrst Additional Sessions Judge, Rajnandgaon, C.G. in Sessions Trial No. 106/2002 whereby and where under after holding the appellant giiilty for the offence of commission of culpable homicide amounting to murder of his mofher Khorbahrin convicted the appellant under Section 302 of the Indian Penal Code •?3':! 1 J S Av •-^--^Bri^ and sentenced" imprisonment for life and fine of Rs. 100/- in default of payment of fine ainount additional rieorous imprisonment for 1 month. Conviction is unpugned on the ground fhat without any iota of evidence sufficient for conviction of fhe appellant, Coiirt beltfw has convicted and sentenced fhe •^. appellant as aforementioned and thereby committed an Ulegality. As per case of the prosecution, on accoiuit of some dispute of Khorbahrin (slnce deceased) mother of fhe appeUant wifh the wtfe of appellant, on fateful day 31/5/2002 at about 7-7.30 at eveiung present appellant assaulted his mother Khorbalirm. She shouted for help then PW1 Churaman Stngh, PW2 Bhagirathi 8s PW3 Tarachand and anofher person came to the house of appellant, door of room was closed from inside. They directed the appellant for opening the door but he did not open the door fhen villagers'broken the door and went inside the room where Khorbahrin was alive. Blood was coming out from her moufh and nose and sound was also coming from neck (<i.g<i^i6c). Appellant was hidme himself in first floor fqei?). They caught hold the appellant. They took the inji.ired Khorbahrin for treatment. She was examtned bv PW4 :aii;!:'.":';'^!".,!'i"!i': •Ar ^' Dr. R.S. Guf)ta vide Ex. P-10 and found followin^ injunes:- (i) Swelling of 6 x 4 c.m. over left side of forehead. (ii) Swelline of left cheek of 4 x 3 c.m. •'t- (iii) Swelling arbund both the eyes. (iv) Swellmg over the nose of3 x 2 c.m. (v) Swellmg of4 x 4 c.m. over right cheek. (vi) Swelling over bofh the lips. 4. Diiring course of ti-eatment she died. Death was intimated to Police vide Ex. P-11. On the basis of Ex. P- 11 Marg was recorded vide Ex. P-14. PW1 Chiiraman Smgh has lodged the Ftrst Information Report vide Ex. P-1. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-3 inquest over fhe dead body of deceased Khorbahrin was prepared vide Ex. P-4. Dead body was sent for autopsy to Govt. Hospital Ambagarh Chowki vide Ex. P- 12. PW4 Dr. R.S. Gupta conducted autopsy vide Ex. P- 12 and found aforesaid injuries includir^ fracture of upper jaw and nasal bone. Mode of death was shock and deafh was homicidal in nature. Spot map was prepared vide Exs. P-2 and P-8. Patwari also prepared spot map vide Ex. P-7. Sealed cloths of deceased was seized vide Ex. P-16. ^^^^•S^.Ktlfc- 9. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was flled before the Judicial Magistrate Fu-st Class, Ambagarh ChowM who in tLim committed the case to (he Cotut of Sessions Rajnandgoan from ••<,. where First Additional Sessions Judge, Rajnandgaon received fhe case on ta'ansfer for trial. In order to prove the guUt of the appellant/accused prosecution examined as many as 13 witnesses. Accused/appellant was examined under Section 313 of the Code where he denled the circumstances appeartni against htm, innocency and false implication is claitaed. After affordmg an opportunity of hearing to the parties leamed First Additional Sessions Judge, Rajnandgaon convicted and sentenced the appellant as aforementioned. Leamed counsel for the appellant Mr. V.P. Gupta and leamed Dy. G.A. for the State/respondent Mr. Sandeep Yadav are heard. Judgment impugned and record of Court below perused. Leamed coiinsel for fhe appellant vehemently argued fhat conviction is based on circum.stantial evidence but prosecution has not proved fhe chain of circumstances °B8BSS? 4^ K'&^,^ Ss:s^ B; a. suf&cient for vdrawing the hypothesis fhat only appellant has conunitted fhe offence and except appellant nobody has committed fhe offence and the appellant is not mnocent. 10. On fhe ofher hand, leamed Dy. Govt. Advocate for fhe •'t. State/respondent o^osed fhe appeal and submits fhat conviction is based on strong circumstances sufiirient for proving fhe fact fhat only appellant has committed the ofience and except appellant nobody has committed the ofience. 11. In order to appreciate the arguments advanced on behalf of the parties, we have exainined the evidence adduced on behalf of fhe prosecution. 12. In fhe present case, homicidal deafh as a result of fatal injury found over the body of Khorbahrin has not been substantiaUy disputed on behatf of the appeUant on fhe other hand, ofherwise also established by the evidence of PW4 Dr. R.S. Gupta and medical examination report E^x. P-10 and autopsy report Ex. P- 12. Death was homicidal in natnre. 13. As regard fhe complicity of appellant in atme in question, conviction is substantially based on fhe circumstantial evidence. At fhe time of iacident witnesses heard fhe soiind of Khorbahrin came out from her house. They went to the house of Khorbahrin B 1 Bli •^v'-:.^-^^ ;:^s i»KW^,,,....-.^S where door wa^s closed fi»mtnside. They directed the appellant for openine the room but he did not open fhe room (hen fhey broken the door and went inside the room where fhey saw the badly tnjured body of Khorbahrin and appeUant was hidlng Imnself in first •'•t. Qoor (vw) of saine'house, then fhey caught hold the appeUant and took to fhe Police Station. 14. In order to prove the aforesaid circumstances prosecution has exaoiined PW1 Churaman Slngh who has deposed in his evidence fhat he was called by Mangal, at fhe time of incident appeUant was beatmg his mother Khorbahrin in his house fhen he along with other persons went to the house of appeUant. House of appellant was closed from uiside. They directed fhe appeUant to open fhe door but he did not open fhe door then they broken the door and went inside the room where Khorbahrm was lying unconscious with injury. The sound prsirere?) was coiaing froin her neck. They searched fhe appeUant. He was not present in the rooin but he was present in first Qoor {w) whom they caught hold and went to the Police Station. They also took injured Khorbahrin to the Hospital. Duiing course of treatment she died. He has also deposed that appeUant has made extrajudicial confession fhat on account of 7. ^ :.^::.-.^:'.1^^$^^.^^ ^^SsSKi:'^^^- ^:.:- ';-^;£;S-=-?")®:' dispute wifh his wtfe he has assaulted his mother Khorbahrin. Evidence of PW1 Churaman Singh having substantially corroborated by the evidence of PW2 Bhagirathi & PW3 Tarachand, PW6 Dhurau and PW7 Domanlal. <i. 15. Defence has cross dkamined these witnesses at length but has not been able to illicit anythtng in fheir CTOSS exammation to discredit their testimonv. Thev have specifically deposed that house was closed from inside, mjiired body of Khorbahrin was lying in fhe room. Appellant was hldtng himself in the first Uoor (qero). Incident took place inside the room where injured and appeUant only two persons were present. Appellant has not offered any explanation that who has caused injiuy to his mofher Khorbahrin. 16. Definitely, her mother has received injury inside the room in secrecy. Appellant was under obligation to explain fhe injmy of his mofher but he has not explained fhe injiuy. If aforesald circumstances are considered together fhen only hypothesis woiild be possible that appellant has caused injLuy to hls raofher and except appeUant nobody has caused mjury to his niofher and appeUant is not tnnocent. AppeUaat has also made extrajudicial confession to PW1 Chiiraman Stngh, it is also corroborative piece of evidence. sisiaitah y /-"•« 15 :)^?!: 'iiia ...i^S J^-^^^Si^^i' 17. After appreciating the evidence available on record leamed First Additional Sessions Jud^, Rajnandgaon has arrived at a findmg that present appellant has caused injiiry to his mother Khorbahrin. Prosecution has not -adduced any evidence to show fhat what weapon appellant7has used. Injury found over the face of deceased Khorbahrin was grievous in nature but not fatal. AppeUant was having sufficient time to kUl his mother Khorbahrin but after causing aforesaid assault he was hiding himself. Absence of any weapon, considermg the nature of inji-iry and the fact that having sufficient time to kiU the Khorbahrin, appellant has not kiUed Khorbahrin and was hiding himself shows that appeUant has not caused any tnjuiy to his mother Khorbahrin with tntent to cause her deafti but at the time of causing such injury appeUant was having knowledge by his act she may die. Therefore fhe act of appeUant does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code. WhUe convicting the appellant under Section 302 of the Indian Penal Code leamed Ftrst Additional Sessions Judge, Rajnandgaon has not considered the aforesaid aspect of the case and fhereby committed an Ulegality. 18. For the foregoing reasons, crimtnal appeal is partly allowed. Conviction of the appeUant under Section 302 '•^. of fhe Indiafa Penal Code is altered into under Section 304 Part-I of the Indian Penal Code. Appellant is tn custody stnce 2/6/2002 and has completed more than 8 years. AppeUant is sentenced for unprisonment already undei^one by him Q-om. 2/6/2002 till today. He <!'. be released forfhWifh if not required tn any ofher case. Sd/- . T.P. Sharma Judge Sd/- R.L. Jhanwar Judge