€ c -\ ..D- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. AppellanV (in jail) Respondent Criminal Appeal No. 359 of 2007 Shiv Kumar alias Nanki, aged about 33 years, son of Late Laxman Singh, resident of Badebanka, P.S. katghora, Distt. Korba (C.G.) Versus State of Chhattisgarh Through : the P.S. Katghora Distt. Korba (C.G.) (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Naresh Kumar Singh, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocate forthe State/respondent. JUDGMENT (Delivered on 12th December, 2011) PerT.P.Sharma.J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 02.03.2007 passed by the Additional Sessions Judge, Korba in Sessions Trial No.20/2006, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his father Laxman Singh (since deceased), convicted under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine further to undergo R.l. for one year. ^sr t. -^ ^^::^:^ ^sy 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on 22.10.2005 at 6:00 pm, appellant after consuming liquor assaulted his father Laxman by stick, hands & fists and caused injuries. hle was badly injured. Samar Singh (PW/1), brother of Laxman called villagers and informed them that appellant has badly assaulted his father Laxman. Laxman had also told to villagers that appellant has caused injuries to him. On 25.10.2005 Laxman died as a result of injuries. Samar Singh (PW/1) went to police station, Katghora and lodged FIR vide Ex.P/2. Merg was recorded vide Ex.P/1. Investigating officer left for scene of occurrence, after summoning the witnessed vide Ex.P/3, inquest over the dead body of deceased was prepared vide Ex.P/4. Bloodstained soil and plain soil were seized from the spot vide Ex.P/7. Spot map was prepared by investigating officer vide Ex.P/9. Dead body of deceased was sent for autopsy to Govt. Hospital, Katghora vide Ex.P/17. Dr. H.D.Dahire (PW/13) conducted autopsy vide Ex.P/15 and found following injuries: i) Abrasion of 3" x 2" over right side of knee. ii) Lacerated wound of 2" x W over back side of left ear. iii) Lacerated wound of 1 x1^" over left side of lip. iv) Abrasion of 2" x 1" over left side of forehead. v) Abrasion of 1" x1/^" on nose. vi) Abrasion of 2" x 1/^" over right side of wrist. vii) Abrasion of 3" x 1" over right side of gluteal region. viii) Lacerated wound of 1" x1/^ " on penis. ix) Abrasion of 3" x 1" over right knee. x) 5th, 6th and 7th ribs were fractured. xi) Ruptured of right lung. Blood found in thoracic cavity. ..•;..^;^—--;^^ 6. Mode of death was shock. During the course of investigation, appellant was taken into custody. He made disclosure statement of stick vide Ex.P/5, same was recovered at his instance vide Ex.P/6. Spot map was also prepared Ex.P/8. 7. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Katghora, who in turn committed the case to the Court of Sessions, Korba, from where the learned Additional Sessions Judge, Katghora received the case on transfer for trial. 4. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 5. After providing opportunity of hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as aforementioned. 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 vehemently argued that although conviction is based on evidence of Samar Singh (PW/1), brother of deceased, Hari Singh (PW/2), Dhankunwar (PW/3), Chandrabhan Singh (PW/4), Ramdas (PW/8), Satyanarayan Singh (PW/9) and Dilharan Singh (PW/12) before whom appellant has made extra judicial ^ ^ ^ '-:":^^ (- (9 confession but conviction onlyon the basis of extra judicial confession is not safe to rely in absence of any corroboration from the independent source. He further argued that evidences of aforesaid witnesses are self contradictory and improper. There was no occasion for making such extra judicial confession before them by the appellant, even otherwise after having knowledge that father of the appellant is badly injured; -, Samar Singh (PW/1), brother of deceased and other villagers have not tried to provide medical assistance to deceased. He also argued that even otherwise appellant has not caused homicidal death of deceased with intent to cause his death. 8. On the other hand, learned Govt. Advocate for the State opposed the appeal and submits that in the present case appellant has caused homicidal death of his father by causing injury mercilessly and brutally. After appreciating evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. / 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 10.1n the present case, homicidal death as a result of fatal injuries found over the body of deceased Laxman has not been substantially disputed on behalf of the appellant; even otherwise same is also established by the evidence of Dr. H.D.Dahire (PW/13) and autopsy report Ex.P/15 that death of deceased was homicidal in nature as a result of ruptured of right lung. 11.As regard the complicity of the appellant in the crime in question is \/ concerned, conviction is substantially based on extra judicial confession ^- made by the appellant before Samar Singh (PW/1), brother of deceased, Hari Singh (PW/2), Dhankunwar (PW/3), Chandrabhan Singh (PW/4), Ramdas (PW/8), Satyanarayan Singh (PW/9) and Dilharan Singh (PW/12). As per the evidence of aforesaid witnesses, appellant made extra judicial confession before them that he has caused injuries to his father Laxman on 22.10.2005, and on 25.10.2005 his father died. As per evidence of Manharan (PW/5), appellant quarreled with his father andon second day morning he came to know that appellant has caused injuries to his father. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony the extent that appellant has not caused injuries to his father Laxman. Extra judicial confession is one kind of evidence and if it is proved to be true, the same would be sufficient for conviction of the accused/appellant. Evidence of Samar Singh (PW/1), brother of deceased, Hari Singh (PW/2), Dhankunwar (PW/3), Chandrabhan Singh (PW/4), Ramdas (PW/8), Satyanarayan Singh (PW/9) and Dilharan . Singh (PW/12) inspire confidence and trustworthy relating to extra judicial confession made by the appellant to them and same are sufficient for drawing inference that appellant has caused homicidal death ofdeceased. 12.As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind ofweapon used, part ofthe body effected and other similar circumstances. 13.1n the present case, as per case of prosecution, appellant after consuming liquor has caused injuries to his father on the ground that he ^?^ y^'"^ / ^ i ^'A:.^ il. 'e^ ^..^.^: A 9 \..w-y "T~ Vijay has not done anything for him and not performed his marriage. Injuries found over the body of deceased were simple in nature. Further, autopsy report reveals that deceased was alive for two days and cause of death was probably ruptured of lung and fracture of piece of bone of ribs. At the time of causing such injuries in merciless manner he was having knowledge that deceased Laxman, whose age was 60 years at the time of incident, may die. Evidence adduced on behalf prosecution clearly reveals that act of the appellant squarely falls within the ambit of Section 304 Part 1 ofthe IPC. 14.While convicting and sentencing the appellant under Section 302 of the IPC, Court below hasnot considered the aforesaid fact especially that after receiving injuries deceased was alive for two days and thereby committed illegality. 15.For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 302 of the IPC is altered into Section 304 Part 1 of the IPC and he is sentenced to undergo R.l. for eight years and to pay fine of Rs.3,000/-, in default of payment of fine amount to further undergo R.l. for six months. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge