lilli l-r!' HIGHCOURT OF CHHATTISGARH AT BILASPUR Division Bench -^- Coram: Hon'ble Shri T.P. Sharma & Hon'ble ShrLR.N. Chandrakar. JJ. CriminalADDealNo. 916 of 2006 Appellant Vs. Respondent ;.$amaru Singh Gond,s/o. Chaturpal .Ifeingh, aged about 22 years, occupation - Cultivator r/o. Rampur, P.S. Pasan, District Korba (CG). State of Chhattisgarh, through Police Station Pasan, District Korba (CG). (Criminal Appeal under Section 374 (2)afthe Cr.P.C.) Present: Mr. Prakash Tiwari, counsel for the appellant. Mr.J.A. Lohani, Panel Lawyer fortheState. JUDGMENT (Deliveredon 14-11-2011) PerT.P. Sharma. J. 1. Challengein this appeal is to the judgment of convictjon and order , t • • ofsentence dated 29-11-2006 passed by SessionsJudge, Korba, .i in Sessions Trial N6. 12/2006, whefeby and whereunder learned Sessions Judge after holding the appellantguilty forcommission of .culpable homicide amount to murder of his father Chaturpal Singh and also for causing injuries to Devsingh, convicted him under :tli: , 4'- f^ 'a> ^ s '•^5.^ .^ ^S M . K ... ^ M J' vi:r'y 'l*:('3EE^^! 'v.. Sections 302 and323 of the IPC and sentenced him to undergo imprisonment forlife and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.l. for six months and to undergo R.l. for one year and to pay fine of Rs.500/-,in default of payment of fine to further undergo R.l. for three months respectively. Both the sentences are directed to run concurrently. Conviction of the appellant is impugned on the ground thatwithout tit' ^ any iota ofevidence, the coirrt'below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prbsecution,on fateful day pf4-8-2005 at about 7.00 p.m., unfortunate Chaturpal Singh (deceased), father of appellant was present In his house. Appellant came to his house at about 7.00 p.m. Being asked by his father about coming late to the house, appellant abused his father and they quarreled with each other. Appellant took out burning fuel wood and caused injuries over head of the deceased as a result of which he fell down. When son-in-law of deceased and brother-in-law of appellant nameiy Devsingh (PW/2) tried to save his father-in-law Chaturpal Singh, then appellant also assaulted him. On second day i.e., 5-8-2005 when relatives of the injured ChaturpalSingh were trying to bring him to hospital, Chaturpal Singh died. Merg was intimated by PW/1 Itwar Singh vide Ex.P/1. First information report was lodged at Poli^ Station Pasan vide Ex.P/2. Aftersummoning thewitnesses vide Ex.P/12, inquestoverthe dead bodywas prepared vide Ex.P/3, dead body was sent for 'autopsy to Additional Primary Health Centre, Pasan vide Ex.P/9-A '! ••i.iy .,// J- \- where Dr. K.S. Pendro (PW/8) conducted autopsyvide Ex.P/9 and found the following injuries: i) one Igicerated wound of 1 "x 1/10" into bone deep over head; ii) one lac&rated wound of 1%" x 1/10" into bone deep near two inches away from first injuryand lateralto it; iii) clotted blood deposited under the scalp and skull bone was broken into nine pieces; V iv) brain mattercame out from the injury and opined that death was homicidal in nature. 5. Sealed clothes of deceased were seized vide Ex.P/5, Patwari prepared the spot map vide Ex. P/8, bloodstainedsoil and plain soil were seized from the spot vide Ex.P/14, spot map was prepared by Investigating Officervide Ex.P/13, burnt piece ofwood was seized from the appellant vide Ex.P/15. PW/2 Devsingh was also examined by Dr. K.S. Pendro (PW/8) who found three simple injuries vide Ex.P/11. Seized articles were sent for chemical examination to FSL Raipur and report thereof was received vide Ex.P/17. 6. Statements of witriesses were recorded under Section 161 of the Cr.P.C. Aftercompletion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Khatghora, who in turn committed the case to the Court of A Sessions Judge, Korba, who framecLcharges under Sections 302 and 323 ofthe IPC againstthe appellant. 7. Inorderto prove the guiltofthe appellant, prosecution examined as many as nine witnesses. Accused/appellant was examined 'tl; ;' -"..--"^' .ify' ';;^y 8. 9. 10. under Section 313 ofthe Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in fcrime in question is claimed. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the <?• • .11 ; ' judgment impugned and recp^ofthe trialGOurt. Mr. Prakash Tiwari, learned counsel for the appellant frankly admits and submifs that in the light of evidence of PW/2 Devsingh, he is not disputing the fact that appellant has not caused homicidal death of deceased but further submits as per evidence of prosecution, son and father quarreled and assaulted with eaeh other, then the appellant caused fatal injuries to his father which shows that the incidenttook place on a sudden provocation without pre-meditation and on a spur of moment, therefore, the act attributed to the appellant does not travel beyond the scope of 304 part1 ofthelPC.- On theother hand, Mr. J.A. Lohani, learned Panel Lawyer on behalf of the State opposed the appealand submitted that while causing such fatal injuries ovef head of deceased by dangerous weapon, the appellant was having d^finite knowledge that by his act, deceased may die. After appreciating the evidence available on record,the court below has rightly convicted and sentenced the appellant as aforementioned. :®->.> 12. In order to appreciate the arguments advanced by learned counsel forthe parties, we h^ve examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death as a result of fatal injuries found over the vital part of head of Chaturpal Sirrgh has not been disputed on behalfof the>appellant. Even otherwise, it isalso ft^ : . ; ^ established bythe evidence ofDr.K.S. Pendro (PW/8) and autopsy report vide Ex.P/9 that death of deceased was homicidal in nature. lltt 14. As regards the complicity of appellant in crime in quesfion, appellant has not disputed the fact that he has not caused homicidal death of deceased. Even otherwise, same is also established by the evidence of injured eye-witness PW/2 Devsingh son-in-law of deceased and brother-in-lawof presentappellant, who intervened the quarrel. As per his evidence, appellant assaulted his father (deceased) by burning fuel wood and when he tried to save'the deceased, the appellant also assaulted him. He was also examined by Dr. K.S. Pendro (PW/8) who noticedthree simple injuries vide Ex.P/11over his body. Defence has cross- examinedthis witness at length, but has not been able to elicit anything in his cross-examination to discredit his testimony. The evidence of this solitary eye-wi.tpess corroborated by first information report and medjcal report, is sufficient for drawing a definite conclusion that the appellant has caused homicidal death 'ofdeceasedChaturpalSingh. .^- LU>a->lSiiSiS .^-t 15. As regards question of motive is concerned, in case of direct evidence motive looses its importance, evenotherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part Qf the body effected and other similar circumstances. 16. In the present case, as per evidence of PW/2 Devsingh, appellant came late to his house. B^jng asked by his father i.e., deceased n Chaturpal Singh about late, appellant abused him, thereafter, deceased slapped appellant, then the appellant quarreled and caused injuries oyer the head of deceased. Appellant and deceased were son and father.even otherwise, there was no other propriety for causing such injuries. As per evidence of injured eye- witness PW/2 Devsingh, appellant and deceased quarreled with each other, deceased also assaulted the appellant during the course of quarrel and on such sudden provocation appellant has caused ihjuries by burning fuel wood present on the spot. This evidence clearly reveals that the act of the appellant squarely falls withih the ambit ofSection 304 Part 1 ofthelPC and notwithin the ambit of Section 302 ofthe IPC. The courtbelow.while convicting and sentencing the appellant, has not considered the aforesaid circumstancesand thereby committed illegality. .< 17 For the foregoing reasons, the app^al 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 Rl for eight years and to pay fine of Rs.2000/-, in default of payment of fine to further undergo Rl for ttiree months. Conviction and sentence of the appellant under Section 323 of the IPC is herebymaintained. Sd/- T.P.Shasgna Judge Raju ^ ^:?1 Sd/— R.N. Chandrakar Judge .•(