%3 @z HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No;865 of 2002 {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. K.K. Singh, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma & Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (9-12-2009) T.P. Sharma, J: — 1. Challenge in this appea. is to the judgment of conviction & order of sentence dated 5—7-2002 passed by the 2nd Additional Sessions Judge (F.T.C.), Janjgir in Sessions Trial No.41/2002, whereby learned Additional Sessions Judge after holding the appellant guilty for commission of murder, convicted him under Section 302 of the l.P.C. and sentenced to undergo imprisonment fOr life. t 2. Judgment is impugned on the ground that without any evidence of commission of murder, the trial Court has convicted and sentenced the appellant in the aforesaid manner and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 18-11—2001 at about 9 a.m. deceased Santoshi Bai, daughter of the accused/ appellant, was present in the house of the accused, the accused assaulted her on the gro‘und that she has not gone for milling the paddy 0 APPELLANT: Sukhnandan Singh, S/o Parsadi Lal, ' aged about 56 years, R/o Village Podidalha, P.S. Akaltara, Distt. Janjgir J Champa (C.G.) Versus 1; RESPONDENT: State of Chhattisgarh Through D.M. ,v Janjgir Champa P.S. Akaltara. appearing against him, pleaded innocence and false implication. i 5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellant submits that this is the case in which father has assaulted his daughter‘bn the ground that she had not gone N awn mW and as a result even they have not taken meals. Deceased Santoshi Bai fell down on which the accused immediately rushed to Dr. Ghanshyam Dixit (PW-1) and narrated the incident to him. Dr. Ghanshyam Dixit immediately came and examined the deceased, and advised to take her t to Primary Health Centre, Akaltara. After some time, Santoshi Bai died. l Kotwar Ramdas Manikpuri (PW-4) lodged the F.l.R. vide Ex.P-5 and I merg intimation vide Ex.P-6. After summoning the witnesses vide Ex;P- l 7, inquest over the dead body‘of the deceased was prepared vide Ex.P- 8. The dead body was sent for autopsy to Primary Health Centre, .1 Akaltara, vide Ex.P-10 and autopsy was conducted by Dr. Smt. "Lalita Toppo (PW-10) who found congestion of internal parts and simple injury over external parts. Cause of death was asphyxia as a result of assault. o Statements of the witnesses were recorded under Section 161 of the Cr.P.C: and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Janjgir, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the 2nd Additional Sessions Judge (F.T.C.), Janjgir received the case on transfer for trial. *4. In order to prove the guilt of the appellant, the prosecution has examined as many as thirteen witnesses. The accused was examined under f Section 313 of the Cr.P.C. in which he denied the circumstances (Q? for milling the paddy for their food and as a result, they were hungry in the night and not in a position to take meals, but unfortunately daughter of the appellant died, father has not caused injury with intent to cause the f homicidal death of his daughter amounting to murder. The accused has not~used any weapon. It was not expected that as a result of some slaps W to teach his daughter a lesson, she wili die. Learned counsel further submits that father has frankly admitted his act before Dr. Ghanshyam I Dixit (PW-1). The material collected on behalf of the prosecution is sufficient for drawing inference that in this case, the father was reckless .l and recklessly assaulted his daughter, at the most, his act may be the offence punishable under Section 323 of the l.P.C. Learned counsel also submits that the appellant is in custody since 19-11-2001 and has r”) completed more than eight years of imprisonment. 8. On the other hand, learned State counsel opposed the appeal and supported the judgment impugned. 9. In order to appreciate the arguments, we have examined the evidence available on record. Death of the deceased as a result of injury is not disputed by the appellant, on the other hand, it is proved by the evidence r of Dr. Smt. Lalita Toppo (PW~10) and the autopsy report (Ex.P-11) in which she has deposed that cause of death was asphyxia as a resUlt of assault. i 10.As regards the complicity of the appellant in the crime in question, the extra judicial confession made by the appellant before Dr. Ghanshyam Dixit (PW-1) reveals that after the incident the appellant immediately went to the doctor for treatment of the deceased and told him that he has slapped his daughter and requested him to provide immediate treatment to her. This evidence is unchallenged and sufficient for drawing 4 inference that the appellant has made extna judicial confession that he has assaulted the deceased. Ex.P—5, the F.l.R., clearly reveals that the appellant has assaulted his daughter in the stage of annoyance that the ' entire family had not taken meals as a result of some mistake committed by‘the deceased. Purely, this is a family matter and such annoyance. even such slap by a father was not unnatural. But the F.l.R. reveals that the appellant has assaulted the deceased 15-20 fists on which the deceased fell down and became 'unconscious. 11.The entire evidence, cumulative effect of injury and knowledge of such excess assault are sufficient for drawing inference that the appellant has assaulted/the deceased knowing well that she may die. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the appellant has caused homicidal death of the deceased amounting to murder, but sufficient for drawing inference that the appellant has caused repeated fists/slaps to his daughter having knowledge that she may die. The act Of the appellant squarely falls within the ambit of Section 304 Part—ll of the l.P.C. The trial Court has appreciated the evidence of the prosecution, but has not considered the most material aspect of the case that the appellant has caused injury without any intention of causing. homicidal death ’of the deceased amounting to murder and thereby committed illegality. 12.For the foregoing reasons, the appeal is partly allowed. Conviction & sentence of the appellant under Section 302 of the l.P.C. are hereby set aside, instead thereof, the appellant is convicted under Section 304 Part- ll of the l.P.C. and sentenced to the custodial period already undergone by him from 19-1 1-2001 till date.i.e. about more than eight years. He be released forthwith, if not required in any other/case.’ Sd/l R.L. Jhanwar Judge i V k Sdi. lg T. P. Sharma , “T "f Judge wu Wt t .lw .«wfi W t w;