HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CGRAM: HON'BLE MR. T.P. SHARMA 8& HON'BLE MR. R.L. JHANWAR. JJ. CRIMINAL APPEAL N0. 306/2005 Ramdhan son of Ram Roop aged about 22 years, resident of village Injani Chowki, Police Chowki, Raghunat Nagar, P.S. Ramkola, Distt. Surguja (Chhattisgarh). APPSLLANT In Jail VERSUS RESPONDENT The State of Chhattisgarh Through Police Chowki Raghunath Nagar, Police Station-Ramkola, Distt. Surguja (C.G.). CRIMINAL APPEAL UNDER SECTIQN 374(21 OF THE CODE OF CRIMINAL PROCEDURE. 1973. Pr,esent:- Shri A.N. Bhakta, Advocate for the appellant. ShriAshish Shukla, G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 24/09/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28/2/2005 passed by 3rd Additional Sessions Judge, (F.T.C.) Surajpur District Surguja in Sessions Trial No. 452/2004 whereby and where under after holding the appellant guilty for the offence of commission of culpable homicide amounting to murder of his brother ^sy ~^! 2 W) 1 Ramdev convicted the appellant under Section 302 of the Indian Penal Code and sentenced rigorous imprisonment for life with fine of Rs. 5000/- in default of payment of fine amount additional imprisonment for 2 months. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. Case of the prosecution in brief, deceased Ramdev was quarreling and assaulting his mother Dhankunwar. On fateful day of 29/5/2004 at about 10 P.M. his father Ramroop and brother Ramdhan came and they caught hold Ramdev and pushed him, he fell down on the floor. They assaulted by hands and fits thereafter, Ramdhan went inside the house and came with burning piece of wood and assaulted Ramdev then Ramdev died on the spot. PW1 Banshroop went to the Police Station and lodged First Information Report vide Ex. P-1. Marg intimation was recorded vide Ex. P-2. Investigating Officer left for scene of occurrence. After summoning the witnesses vide Ex. P-6, inquest over the dead body of Ramdev was prepared vide Ex. P-5. Spot map was prepared vide Ex. P-4. Blood stained and plain soil along with burning piece of wood were ^ i ^^./ %*< recovered from the spot vide Ex. P-7. Dead body was sent for autopsy to Govt. Hospital Pratappur vide Ex. P- 15. PW7 Dr. Narendra Pratap Singh conducted autopsy vide Ex. P-14 and found following injuries:- (i) One contusion of 10 c.m. over right eyebrow. (ii) One lacerated wound of 4 c.m. near fracture of occipital bone. (iii) Abrasion of 3 c.m. over right side of the chest. Cause of death was respiratory failure and death was homicidal in nature. 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 filed before the Judicial Magistrate First Class, Pratappur who in turn committed the case to the Court of Sessions, Ambikapur from where learned 3rd Additional Sessions Judge (F.T.C.) Surajpur District Surguja received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 8 witnesses. Accused/Appellant along with Ramroop were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication is claimed. ^ r^. After affording an opportunity of hearing to the parties learned 3rd Additional Sessions Judge (F.T.C.) Surajpur District Surguja has convicted and sentenced the appellant as aforementioned. Shri A.N. Bhakta, learned counsel for the appellant and Shri Ashish Shukla, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellant vehemently argued that in the light of evidence of PW2 Devgan, who was present at the time of incident and has seen the incident, he is not disputing the fact that present appellant has caused injury to Ramdev but he is disputing the conviction. Learned counsel for the appellant further argued that as per First Information Report, Ramdev was assaulting his mother Dhankunwar on account of partition of the land then present appellant and his father Ram Roop intervened on account of annoyance they assaulted Ranidev by hands and fits and they also pushed him thereafter, appellant assaulted Ramdev by burning piece of wood which shows that present appellant has assaulted his brother Ramdev on spur of moment and on sudden provocation when he was assaulting his mother that too at 10 p.m., present appellant was not intent to kill Ramdev. There was no occasion to kill Ramdev but when Ramdev assaulted his mother then incident took place, which shows that present appellant has not caused any injury to Ramdev with intent to cause his death but at the time of causing such injury, there was possibility that as a result of injury Ramdev may die therefore, if the case of the prosecution is considered as true then even the act of appellant will not travel beyond the scope of under Section 304 Part-II of the Indian Penal Code. The only single injury was grievous and not fatal. 10. On the other hand, learned Govt. Advocate for the respondent/State opposed the appeal and submits that it is true that firstly Ramdev was assaulted his mother then appellant and his father intervened and on account of annoyance they assaulted but thereafter present appellant went inside and came with burning piece of wood and has assaulted his brother Ramdev, which shows grave intention of causing death. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of head injury of Ramdev has not been substantially disputed on behalf of the appellant on the other hand, othenvise ^^Mm^^ ^:^!^^^isfS!!w'::'s'r- riF'^. /^":%.\ ^•''•^••...^^••.^^: ."?••• ys r~""^i,? also established by the evidence of PW7 Dr. Narendra Pratap Singh and autopsy report Ex. P-14. Death was homicidal in nature. 13. Evidence of PW2 Devgan sole eyewitness is sufficient for drawing an inference that present appellant has caused injury on the head of deceased Ramdev by burning piece of wood. 14. As regard the motive for commission of offence is concerned, motive is only aid in criminality and loses its importance. In case of direct evidence even othenvise motive can be inferred on the basis of the nature of injury, part of the body where injury was / caused, weapon used and other like circumstances. 15. In the present case, as per First Information Report and Marg Exs. P-1 & P-2, at 10 P.M. Ramdev was assaulting his mother Dhankunwar on account of partition then the present appellant Ramdhan son of Dhankunwar and brother of Ramdev and his father Ram Roop intervened, they caught hold Ramdev and they assaulted by hands and fits and also they pushed him. He fell down thereafter, present appellant went inside the house and came with burning piece of wood and assaulted by such object over his head and substantially one fracture of occipital bone coupled with two simply injures were found over the head and ii"UVM '% ' .7""si^& chest of Ramdev. This is a case of previous enmity or conimission ofoffence after premeditation. 16. Definitely, when deceased Ramdev, who was aged about 30 years assaulted his mother Dhankunwar then present appellant is also son of Dhankunwar annoyed and assaulted the Ramdev. This incident is not unnatural and one should not be sit as an in spectator when his mother was in danger in case she has beaten by other member especially by his son. In these circumstances, the normal person may also loose his passion andcaused injury to that person. Considering the aforesaid facts, definitely present appellant has not caused any injury to Ramdev with intent to cause his death but at the time of causing such injury, he was having knowledge by his act death may cause therefore, the act of appellant in the present case does not travel beyond the scope of under Section 304 Part-II of the Indian Penal Code. While convicting the appellant under Section 302 of the Indian Penal Code learned 3rd Additional Sessions Judge, (F.T.C.) Surajpur District Surguja has not considered the question of motive and circumstances in which incident took place and thereby committed an illegality. 17. For the foregoing reasons, criminal appeal is partly allowed. Conviction of the appellant under Section 302 •^ ss»; i^a 1 <\ > of the Indian Penal Code is altered to Section 304-Part- II of the Indian Penal Code and instead of sentence of rigorous imprisonment for life and fine of Rs. 5,000/-, the appellant is hereby sentenced to undergo rigorous imprisonment for 6 years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge