y HSGH COURT OF CHHATTSSGARH AT BiLASPUR CriminalAppeai No.220 of 2095 x Division Beneh: CORAM: HON'Bj-E MR.T.P.SHARMA& HON'BLE MR.R.L.JHANWAR, JJ. Appeitant (In Jail) Respondent Mahar Singh Gond Son of Baitu Ram Gond, Aged 30 years, ResidenS of Viliage-Lalutoia, P.S. Dongargaon, Dislilct Rajnandgaon (C.G.) X Versus State of Chhattisgarh (APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Present:- . Mr.Rakesh Sahu, counsei for the appeiiant. Mrs.Madhunisha Sihgh, Panet Lawyer forthe State. (Passed on 18'" January, 2011 T.P.Sharma, J.:- Chalienge in this appsai is to the judgment of conviction and order of sentencedated 17.1.2005 passed by the First Additionai Sessions Judge, Rajnandgaon in Sessions Triai No.143/2004, whereby and whersunder tearned First Additiohai Sessions Judge after hoiding the appeiiant guiity for commission of cuipable homicide of his mother Sitabai amouhting to murder convicted him under Section 302 of the !.P.C. and sentenced to undergo imprisonment for iifeand to pay fine of Rs.2000/'-, in default of payment of fine to further undergo R.l. for six months. <.. 2. Conviction te impugned on the ground that without there being any iota of evidence, the iriai Court has convicted and senteneed the appeliantas forementioned andthereby.committed. afoi 3. As per case of the prosecufion, the appeilant and ths deceased, son and mother, wers residing in thesame prsmises at village Lalutoia. At the time of commission of such offence, the appeliant demanded tobacco from his mother Sitabai aged aboutSS years. On being her refusai, the appellant suddenly assadited her by fist upon herchest and aiso pressed her neck, as a rssuit such injuries, the deeeased died on the spot. Manisha (PW-4), 6 years ^edchiid was present on the spof, who has seen the incideRt and she narrated the incident to others. Chherku (n>fV-2) also came to the house of the appeilant where the appellant wss pressnt and has made extra-judiclai confession before him that he has caused such injuries, thereafte^ he iodged dehati naiishi vide Ex.P/9 and on the basis of dehati naiishi'F.I.R. vide Ex.P/10 v/as registered. Merg was recorded vide Ex.P/8. After summoning the witnesses Vide Ex.P/2, inquest over dead body of the deceased wasprepared vide Ex.P/3. Bioodstained soii, piain soii;maia and tobacco v/ere seized from t'ne spot vide Ex.P/4. Spot map was prepared by investigating offteervide Ex.P/5. Dead body was sent for autopsy to Community Heaiih Centre, Dongargaon vide Ex.P/1A where Dr.S.S.Devdas (PW-1) conducted autopsyvide Ex.P/1 and found foltowing injuries:- (i) Abrasion over right side of cheek and chin. (ii) Abrasion over left side of cheek and chin. (iii) Abrasion in front of neck. (iv) Abrasion upon chest. (v) Abrasion on back of neck. (vi) Fraeture of 2nd rib. (vii) Fracture of thyroid cartilage and rupture of right lung. Cause of death was as s rssult of throtliing. Death was homteidal in nature. Seaied ciothes ofthe deceased viscera wers seizedvide Ex.P/7. 4. Statements of the witnesses were rscorded underSection 161 of the Cr.P.C. and after completion^f investigation charge sheet was fiied before the Court of Chief Judiciai Magistrate, Rajnandgaon who in turn committed the case to the Court of Sessrons, Rajnandgaon, from where tearned First Additiona! Sesstons Judge, Rajnandgaon received the case on transfer for triai. .5. in order to prove the guiit of the accused/appellant, the prosecution exam'ined. as many as nine witnesses. Statement of the "\*'. \ ^' ^t.,^1.^"^^ ^ ;A,.,. ^•^/ accused/appeilant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearlng against him and ciaimed innocence and falss ImplisSation in the crime in question. 6. After affording an opportunlty of hearing to the parties, ieamed First Addittonal Sessions Judge, Rajnandgaon convicted and sentenced the appeilant as aforementioneGi. 7. We have heard Mr.Rakesh Sahu.counsei for the appeilant and Mrs.Madhunisha Singh, Panej, Lawyer for the State, perused the judgment impugned and record>'6fthetrial Court. 8. Learned counsel for the appeliant submits that in the iight of evldence of Chherku (P/V-2), Shatru (PW-3) and Manisha (PW-4), he is not disputing ihe fact that the appeliant has not caused injuries to deceased Sitabai but submits that the circumstances in which he has caused such injuries as proved by the prosecution reveals that he has not caused any injur/ to his mother with intent to causing her homicidai death but has caused 'iRjuries to hte mother on sudden provocation and spur of moment without premeditation, therefore, the act attributed to the appeliantdoes not travei bsyond the ambit of Section 304 Part-i of the I.P.C. Learned counseifurther submits that the applicant is in custody since 27.5.2004 and has compieted more than six years wh'ich is sufficieni sentence under Section 304 Part-1 ofthe i.P.C. 9. On the other hand, ieamed State counsel supported the judgment impugnedand submrts that the present appellant has caused injuries overchest and neck of his mother aged about 65 years having weli knowiedge of ihe fact ihat by his act he may cause death of his old aged mothsr and has caused such jnjuries shows his grave intention of causing homlcidal death of hig^mother Sitabai amounting to murder. After apprsciating the evidence avaiiable on record, learned triat Court has conwcted and sentenced the appsliant as aforemenlioned. 10. in order to appreciate the arguments advanced on behaif of the parties, we haveexamined theevidence adduced on behaif of the prosecution. 11.1n the presentcase, homicidal death ofasa resuii offatai 'injuriesfound over the body-of deceased Sitabar has not been substaniiaiiy disputed t< :s°° B;aSlMHI31MIBIffllBI;UmRB: 1 ^lffil!Ni, ;'!"' .^' ' • ~'' .' '. "^ .^.-rf^;..^.^ ^- t'^wyi h •'^'•y '!<:5|>LL3;-^' Hlii I Ifflfi . on behaif of the appeltant, on the other hand, aiso estabiished by the evidence of Dr.S.S.Devdas (PW-1) and suiopsy report Ex.P/1 which reveals that thyroid cartiiage and 2"1' rib were found fracture and right lung was found rupture. Death was homicidai in nature. 12.As regards the compiicity of the appeiiant in the crime in question, conviction is based on the evidence of Manisha (PVV-4), 6 years aged chiid and evidence of Chherku (PW-4). Manisha (PVtf-4) is chiid witness. At the time of examination of child witness, the Court is required to satisfy itself whether the chljl| isundsrstand to speak truth and able to answer the quesiions rationaily. The evidence reveais that after satistying itsetf the Court has examined Manisha (PW-4) who has rationaily answered the questions put to her by prosecutton and aiso by defence. She has catsgorteaiiy deposed that her father has pressed the neck of her grandmother Sitabai and caused her death. She has aiso deposed that when deceased Sitabai refused for giving tobacco, then the appeiiant has caused such snjuries. Chherku (FW-2) has deposed in his evidence that at the time of inciderrt Manisha (PW-4) was weeping, being asked she toid hum that her father has kiiisd her grandmother, at that time, the appeiiant was going towards fieid, thereafter, the appeilant came from field, beingasked,he made extra-judtoiai confesston that he dsmanded tobacco from his mother, when she refused for giving tobacco then he pushed his mother and assauited her. Defence has cross-examined these witnesses at length, but has not abie to elicit anything in their cross-examination to discard their testimony. Evldence of the aforesaid -A'itnesses are suffteient for drawlng inferenee that the present appeliant has caused homicidal death of his mother Sitabai. 13.As regards the question of motive, in case of direct evidence motive iosses its importance, even otherwise, motive only alds in criminality and can be inferred on the basis of nature of injury, kirid ofweapon used,part ofthe body effected and other similarcircumstances. 14.in the present case, as per case ofthe prosecution and evidence ofthe aforesaid witnesses, the appeltant, son of deceased Sitabai, demanded tobacco from her mother, same was refused by her mottier, then the, appellant has caused the aforesaid injuries, that too by hands, he hais' not used any weapon, her moither was aged about 65 years and otd aged woman. li appears that normal assautt made by the appeiiant was sufficient for causing fr^cture of rib.thyroid cartilage and rupture of iung but at the time of causing such injuries, t'nat too to woman aged about 65 years, the appeitant was-having knowiedge that by his act his mother may die. This fact shows that the appeliant has not caused any cuipabte homicide with intent to cause her death but has caused homicidai death onsudden provocation and spur of moment without premeditation, therefore, the act atSributed tg the appeliant does not travei beyond the scope of Sectton 304 Part-1 dt^the i.P C. 15.White convlcting the appellant under Section 302 of the I.P.C., the triai Court has not consia'ered the aforssaid aspect and thereby committed iiiegality. 16.For the foregoing reasons, the appeal is partly aliowed. instead of convicting the appeiiant under Section 302 of the I.P.C. he is hereby convlcied under Ssction 304 Part-1 of the I.P.C. Consldering the injuries over chestand neck of the deceassd aged about 65 years, the appsliant is hereby sentenced to undergo R.l. for 10years. He is entitied for set off ofthe detention period already undergone. Sd/- T.P.'Shdi-ma Judge ; Sd/- R.L. Jhanwar Judge ^ /