HIGH COURT dF CHHATTISGARH BILASPUR @ Criminal Apgeal No.869 of 2005 Santosh Kumar, aged about 30 years S/o Deepchand Kuwar, R/o Village Pipriya, Thana Dongargarh, Distt. Rajnandgaon (C.G.) ‘ Versus The State of Chhattisgarh, Through Police Station Dongargarh, Distt. Rajnandgaon ' {Appeal under Section 374 (2) Code ofCriminal Procedure 1973} APPELLANT: (In jan) RESPONDENT : / \ Present: Mr. Parag Kotecha, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMEN (1 2-1-201 1) ‘ T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated '16-11-2005 passed by the Sessions Judge, 5, whereby & whereunder Rajnandgaon in Sessions Trial No.2/200 learned Sessions Judge after holding the appellant guilty for commission nting to murder of his maternal grand—mother of culpable homicide amou Sukhbati Kanwar, convicted the appellant under Section 302 of the IPC tenced him to undergo imprisonment for life & pay fine of dergo Sl for six Vand sen Rs.1,000/-, in default of payment of fine to further un months. 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, on the fateful day of 25-9—2004 before 1 nt in the house along with Sukhbati Kanwar p.m. the appellant was prese (since deceased), aged about 70 years, who was scolding him on which ed her by kick over her face and caused her death. The Sagar (PW-1), he assault appellant made extra judicial confession before Ram T ® _ Ram Sar (1) w to the poce stati nd lodged FIR i E.P-1 and mer E.2. Th nvesigatig Officer left for e scen of occurnc and ftr summonin the itnesses vide ExP-4, preared inques over t ded dy of t eceased, ide E—5.- ne pannama was prepared vide Ex.P—. Patwari prepared spot map ve Ex.P—. lood stained cothe, bloo stained soil ad pi soil ere rovrd rom the spot vide EXP-'. ad dy as sent fo autp o Prima H t onga D S. oy P—1) onducte autosy vid Ex.P— 1A and fd e ush njury ov le mandiuar rgion, lft‘andible bone was isibl d caus f deah ws due aemorrhaic shk. ot ma was are b the Invtiating fficer .ide Ex.P-19. Seized articles we sent r heil xamion vie E.P-17 a pren of loo cofirmed on clothes of te eaed ve Ex.P—ZOA. . tatemnts o the witses wre recoed unde Section 161 o t CrPC. fter completion o investigion, charg sheet was fil before the Court of Additiol hief Judicl Magistrate, Donargarh wh committed the cas to t Co of sions, jnandon hee t tr was conducte. . l orde to prove t guilt of t aued t prosecutio as amd as any as telve wnes. h accused was exaied uder Section 313 o the in whic he denied e ciumstances- perig gait hi, eaed ionce and flse implicon in he crie in questi. . fter afforing opportuniy of hearing to the parties, learne Sssins A d t d eo Jud convicted & senteced e appellnt as foremenioned. . a ea larne ounsl for te parties, perud the jdment ipu an ror f te tria Court. Leare unel fo t appellant submits t evidence of e prosecuton witness reting to extra udicial confession es nt inspire confidence ad i is ot trustworthy. A per medical vidence, in n o t t b ce y k O e nt d fr l e ln e ct pl ene q rned uth it of t csd o t lal (PW2), Dhanesh Ra PW-3) ad Mahav (PW-4). ga PW- ent li on a vde x g vide xP- e itn th e ree ae g w . p t he a bo he d v x.P O ch 6 id 7 B ls d n lan w ecee f 8 De bo w r osy t ry ealth Cenre, Drgarh vide Ex.P—11. r. Chudhar (W1 cd p e 1 oun on cr i er ft bl e em ve an e o t a to hg oc Sp p prepd y esg O v re fo cmca einat d x nd sece bd was , v _ n h dces, id Se f nes e rd r f he A f at e ed na C ia g o e he urt Ses Raga wr he ial d n r he he ccs, he n h exine m w itess Te mn n f CrPC h th rc .v apan ans m pld nnce a ati t m on jury found on the perso f he deceased could no e ausd b ick. cular evidenc does o fins support om medica evidnce. thse ircumsances, the apelant is titld for acuittal. Lea counsel frer subms that if case he prosecution is onidere t be rue, Nand - m ( n de ge n th a at We hve hrd ed ce h se ug mgned d ecd o h l . nd cos r he tha th i es la j do o n t n s e even then, considering one injury that too on sudden provocation, act of the appellant does not travel beyond the scope of Section 304 Part-ll of the IPC. . On the other hand, learned State counsel opposes the appeal and submits that knowing the fact that the deceased is aged about TO years, the appellant has caused injury over her face in cruel manner and thereby committed the offence of culpable homicide amounting to murder of his maternal grand-mother. After appreciating the evidence available‘ on record, the trial Court has rightly convicted & sentenced the appellant. 10.ln order toappreciate the arguments advanced on behalf of the parties, we have, examined the evidence adduced on behalf of the prosecution. 11. ln the present case, homicidal death of the deceased as a result of injury has not been substantially disputed on behalf of the appellant, otherwise also it is established by the evidence of Dr. S. Choudhary (PW—11) and autopsy reportvEx.P-11A that death of the deceased was homicidal in nature. i 12.As regards complicity of the appellant in the crime in question, conviction is substantially based on the extra judicial confession made by the appellant before Ram Sagar (PW-1), Nandlal (PW—2‘), Dhanesh Ram (PW-3) and Mahadev (PW-4). These witnesses have categorically deposed that on the fateful day, the appellant came to Nandlal (PW-2) and made extra judicial confession before him that he has killed his maternal grand—mother, thereafter, the appellant & Nandlal (PW—2) went to the house of Ram Sagar (PW—1) — Patel before whom and other 'witnesses namely, Dhanesh Ram (PW—3) & Mahadev (PW-4), the appellant has made extra judicial confession that he has killed his“ . maternal grand—mother. ln their cross-examination they have denied the suggestion that the appellant has not made extra judicial confession. 1 3.The factum of extra judicial confession is well cOrroborated by the promptly lodged FIR Ex.P—1 and merg Ex.P—2. Evidence of extra judicial confession made before the aforesaid witnesses inspires confidence and is trustworthy, same is sufficient for drawing inferenCe that the appellant has committed culpable homicide amounting to murder of his maternal g rand—mother Sukhbati Kanwar by causing injury. 14.As regards the question of motive, moive only aids in criminaty an in t ii d case of direct evidence it Ioses its importance. Motive can be inferred on i the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 15. in the present case, as per evidence of Ram Sagar (PW-1), the appeiiant has made extra judicial confession and also told him that on account of repeated scold made by deceased Sukhbati Kanwar to him which was intolerable to him, he has caused such injury to her. Age of the deceased was 70 years. 'One injury was found over face of the deceased and no fracture was found. This shows that the deceased scolded the appellant on which on account‘of sudden provocation, the appellant has lost his temper and caused single injury to her which the‘ appellant has immediately realized and made extra judicial confession before the witnesses. 16.Considering the aforesaid facts, we are of the view that the act attributed to the appellant does not travel beyondthe scope of Section 304 Part-ll of the IPC. While convicting the appellant under Section 302v of the IPC, the trial Court has not considered the aforesaid aspect of the case and thereby committed illegality. 17.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part—ll of the IPC' c and the appellant hereby sentenced to imprisonment for the period already undergone by him i.e. since 28-9-2004 till date i.e. about more than six years three months. He be released forthwith, if not required in j. any other case. Sd/- *7 saw ‘ ' 'T.P. SHARMA‘ Ih E R.L. Jhanwar Judgc Soma\‘ :7 :g‘ @Jndge