HIGH COURT OF CHHATTISGARH^AT BILASPUR DIVISION BENCH CORAM: HON3LE MR. T.P. SHARMA & HQN'BLE MR. R.N. CHANDRAKAR, JJ, IIS^BiS-IB CRIMINAL.APPEAL N0. 632/2005 Kriparam son of Jailal Mehar aged about 35 years R/o Pendravan (C^hatria) P.S. Dhamdha Distt. Difrg C.G. APPELLANT (IN JAILl RESPONDENT VERSUS State of Chhattisgarh Through P.S. Dhamdha Distt. Durg (C.G.). APPEAL UUDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. 1973. Present:- Mr. Suryakant Mishra, Advocate for the appellant. Ms. Sar-jeev Kumar Agrawal, P.L./Additional Public Prosecutor for the State/respondent. ORAL-JUDGEMENT (Passedon 04/02/2011) The following iudgment of the Court was passed by T.P^Sharma, J:- 1. Challenge in this appeal is to the judgnient of conviction and order of sentpncs dated 28/4/2005 passed by 7th Additional Sessions Judge (F.T.C.) Durg (C.G.) in Sessions Trial No. 166/2004 whereby and where under after holding the appellant guilty for the commission of offence of ^ culpable homicide amounting to murder of his minor son Chandan Mehar and attempt to commit murder of his second minor son Suraj Mehar convicted the appellant under Sections 302 L 307 of the Indian Penal Code and sentenced imprisonment for life with fine of Rs. 1000/-, in <fc Et!t default of payment of fine amount additional rigorous imprisonment for 6 months and rigorous imprisonment for 10 years with fine of Rs. 500/- in default of payment of fine amount additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Courts below has convict^d and sentenced the appellant as aforementioned and thereby comraitted an illegality. As per case of the prosecution, on intervening night of 11/5/04 & 12/5/04 at about 1:00 A.M., appellant was sleeping in his house along with his minor sons Chandan Mehar, aged about 4 years and Suraj Mehar, aged about 7 years along with other witnesses Birajhabai SE Arjun. Appellant assaulted his 4 years minor child Chandan Mehar by hamnier (Ghan) and caused his instantaneously death and also assaulted his second son Suraj Mehar and caused fatal injury to him, Suraj Mehar shouted then PW1 Arjun & PW2 Birjhabai woke up and they saw that appellant was not present in his house finally, he was caught hold by the villagers. PW2 Birjha Bai lodged Marg intimation vide Ex. P-6 §s also lodged First Information Report vide Ex. P-5. Investigating Officer left for scene of occurrence and after sumraoning the witnesses vide Ex. P- 8-A, inquest oyer the dead body of deceased Chandan Mehar was prepared vide Ex. P-8. Plain and blood stained soil were recovered from the spot vide Ex. P-9. Spot map t was prepared vide Ex. P-3. Blood stained Petticoat of Birjhabai was seized vide Ex. P-4. Injured Suraj Mehar was V, sent for medical examination who was examined by PW10 Dr. S.K. Jamgade -vide Ex. P-12 and found following injunes:- (i) One lacerated wound over middle of head in right parietal region of 2" x V^" x bone deep 85 blood was coming out. 4. Dead body of Chandah Mehar was sent for autopsy to Community Health Center, Dhamdha, District Durg vide Ex. P-14. PW10 Dr. S.K. Jamgade conducted autopsy vide Ex. P-11 and found following injuries:- (i) One abrasion below left eye of 1" x l". (ii) Abrasion below left eye of 1" x 1/2". (iii) Incised wound over right ear of 1" x W. (iv) Swelling over right temporal region of 3" x 3 underlying injury was found fracture which was in round shape. (v) Incised wound over back of the head of 1" x 1/2". (vi) Abrasion over right shoulder of 4" x 4". (vii) Abrasion over right shoulder of 3" x 1" round shape. (viii) Abrasion over back of 2" x 3". (ix) Contusion from tiuttock to shoulder. Mode of death was shock and death was homicidal in nature. 5. Patwari prepared spot map vide Ex. P-1. Sealed cloths of deceased Chandan Mehar was seized vide Ex. P-15. One hammer [Ghan] was seized from the accused/appellant / l/ :.<;''.(.i' vide Ex. P-16. Seized articles were sent for chemical examination and presence of blood over hammer was confirmed vide Ex. P-19. Statements of the witnesses were recorded under Section 161 of the Code of Griminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judacial Magistrate First Class, Durg who in turn committed-the case to the Court of Sessions, Durg from where learned 7th Additional Sessions Judge (F.T.C.), Durg (C.G.) has received the case on transfer for trial. In order to prove fhe guilt of the accused/appellant prosecution examined as many as 17 witnesses. Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. After affording an opportunity of hearing to the parties, learned 7te Additional Sessions Judge (F.T.C.), Durg (C.G.) has convicted and sentenced the appellant as aforementioned. ^ Mr. Suiyakant Mishra, learned counsel for the appellant and Mr. Sanjeev Kumar Agrawal, P.L./Additional Public Prosecutor for the State/respondent are heard. Judgment impugned and record of the Court below perused. /. '''?&"..r'" ' .-.-^ ^'-^iS^'"' 10. Learned counsel for the appellant vehemently argued that in the present case, prosecution has not proved the case V, beyond all shadow of doubts. Appellant was mentally disturbed, he was present in his house at night and he was not having any cause for causing brutally murder of his 4 years aged child Chandan Mehar or causing dangerous injury to his 7 years aged child Suraj Mehar. He has not caused any injury to his children, he was sleeping in Baranda along with other persons only on the ground that injury has caused to his one son he has been falsely implicated in crime in question. 11. On the other hand, learned P.L./Additional Public Prosecutor for the State/respondent opposed the appeal and submits that appellant was present in his house along with injured Suraj Mehar and deceased Chandan Mehar and other persons except present appellant other persons have offered their explanation that how Chandan Mehar died and who has caused injuiy but present appellant was not offered any explanation although he was under obligation to offer explanation in terms of Section 106 of the Indian Evidence Act. Evidence adduced on behalf of the prosecution is sufficient for drawing an inference that only appellant has caused homicidal death of his son Chandan Mehar and attempt to commit murder of his second son Suraj Mehar. '../ 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case-, homicidal death as a result of fatal injury found over the body of 4 years aged child Chandan Mehar has not been substantially disputed on behalf of the appellant on the other Uand, otherwise also established by the evidence of PW10 Dr. S.K. Jamgade and autopsy report Ex. P-11 and death of Chandan Mehar was homicidal in nature. 14. As regard the injury of Suraj Mehar and its nature is concerned, one lacerated wound of 2 x 1/4 x bone deep was found over middle of head in right parietal region of Suraj Mehar, no bony injuiy was noticed by the Doctor as per evidence of PW10 Dr. S.K. Jamgade. Prosecution has not proved the fact that injury has been caused by which weapon. In these circumstances, considering the depth of injury over head i.e. vital part of 7 years child Suraj Mehar it cannot be safely inferred that injury was grievous in nature. 15. As regard the complicity of appellant in crime in question, . as per evidence of PW1 Arjun 85 PW2 Birjhabai 8s PW3 injured witness Suraj Mehar; they were sleeping in the house of appellant, appellant was also sleeping. Chandan Mehar died in the intervening night. Suraj Mehar also received injury. As per para-8 of his cross-examination, / r llllllillUIIN"— present appellant has caused injury to Chandan Mehar, Chandan Mehar has not died as a result of normal death. V, After hearing the sound when PW2 Birjha Bai woke up then she saw that appellant was not present in his house, earlier he was present and sleeping near her and children, she immediately came out from the house and shouted then neighbours came'/and they caught hold the appellant and tied by rope thereafter on second day, she lodged report. 16. Defence has cross examined these witnesses at length but has not been illicit anything in their cross-examination to discredit their testimony to the extent that Chandan Mehar has not received any injury on the intervening night of 11/5/04 & 12/5/04. Chandan Mehar has not died as a result of such injury. Suraj Mehar has not received any injury. Appellant was not present and was not sleeping in the same house in the intervening night of 11/5/04 & 12/5/04 and after incident, appellant was not found in the same house but he was caught hold by the villagers in the village. Other witnesses and persons have offered explanation relating to i.njury of Chandan Mehar and Suraj Mehar , but present appellant, father of Chandan Mehar and Suraj Mehar who has not offered any explanation that how incident took place, who has caused injury to Chandan Mehar and Suraj Mehar and why he has left his house that too at odd time at about 1:00 A.M. at night. If inia these circumstances are considered together then only inference would be possible that present appellant was a person who has caused honiicidal death of his son Chandan Mehar artd has caused grievous injury to his second son Suraj Mehar. 17. After appreciating the evidence available on record, learned 7to Additional Sessiqhs Judge (F.T.C.) Durg (C.G.) convicted the appellant under Section 302 of the Indian Penal Code for commission of culpable homicide amounting to murder of his son Chandan Mehar and under Section 307 of the Indian Penal Code for attempt to conimit murder of his second son Suraj Mehar. The injury found over the body of Suraj Mehar was grievous but prosecution has not collected any evidence to show that injury was dangerous to life and appellant has comraitted attempt to commit murder of his second son Suraj Mehar therefore, in absence of any credible, clinching and legal evidence relating to commission of offence punishable under Section 307 of the Indian Penal Code, conviction of the appellant under Section 307 of the Indian Penal Code relating to injury caused to Suraj Mehar is not sustainable under the law. 18. For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellant under Section 307 of the Indian Penal Code is hereby set-aside g^ and he is convicted under Section 305 of the Indian Penal tStgsS'! 's'ss'1 Code and is sentenced rigorous imprisonment for 2 years. His conviction and sentence under Section 302 of the \, Indian Penal Code relating to murder of his son Chandan Mehar is hereby maintained. _. Sd/- T.P. Sharrna Judge Sd/- R.N. Chandrakar Judge !a«!S