.^'""'"""^s* %'^i^ fy\ iy :i HIGH CbURTOF CHHATTISGARH. BILASPUR Cnminal Appeal No.280/2005 APPELLANT (InJail) Hondo Ram s/o Doundge, age 23 years, R/o vlllage Koudenar, P.S. Koudsnar, 01.06.2002 Tahsil Jagdalpur, District Bastar (CG) v/s 86SPONDENT <j?-^ - _..... . _-. - _ -. ' ^IState of Chhattisgarh Through Poliee Station Koudenar, Tahsil Jagdalpur, District ' Bastar(CG) CR1MINAL APP6ALU/S 374(2)0F THECODE OF CRIMINAL ^>ROCUDERE Appearance: Shri <iA. Lohani, counsel for the appellant. Shri U.K.S.Chsndel, Panel Lawyw for flie State. DivisionBenchs- Hon'ble Shri T.P. Sharma & Hon'bleShrfR.L.Jhanwar.JJ Per T.P.Sharma,J. ORALJUDGMENT 0:>1.07.2611) Challenge in thisappeal is to th®judgment of conviction and order of sentence dated 10.022005, passed by the 4th AdditionatSessions Judge (FTC)Bastar, Jagdalpur (CG) inS.T.No.2&1S002,wherebyand whereunder the learned Additional Sessions Judge, after holding ttie appellant guilty for commission of culpable homicide amounting to murder of his mother- Nande Bai and causing simple injury to Budri Bai, convicted the appetlant under SeGtions 302and 323 of the IPC and sentenced tor life imprisonmenfand R.l. for 1 year. 2. The convictfon is impugned on the ground that w^thout there being any iota of evidence suffieient for convifltion of the appellant, the teai'rwd Additional Sessions Judge has convicted and sentenced the appeltent as aforesaid mentioned and thereby committed illegality. :1^1~V ^<i.3"—tj]...'\ •y'" ^ ''-^.'"••- '% •~SSS"S\ g '.'sff'a^ j, •^ ^ .^ .%: 'tt'isy!yi '^...S-sf^ -•tS'tS'^'' •1!:' -IU:S!3^'I'!:!;."?^'^?.E:" 3. As percase of prosecution, on 29.5.20(X2, ttie appellant, son of tha deceased Nande Bai and brottier of Budri Bai 93W-2) was inside the room, when Budri Bai (PW-2) went inside the hbuse for providing meat to the appellant, heget annoyed on thegreund that she is provldingthe nwal too late. He came out with axe and assaulted Ws mother and caused injury to her sister and fled frbm the spot. Nande Bai become unconsclous. In absence ofijFacilNy for her treatment,she dled gftersome time. Budri Bat (PW-2) w^nt to Police Station and lodged FIR vlde Ex; P/4> Merg intimation was recorded vide Ex. P/7, Aftw summonm& witnesses vide Ex. P/8, inquest over ttie dead body of the deceased was prepared vlde Ex. P/9. Dead body Was sent for autopsy to PHG Kitepat, whereDr. Tejsingh Nag(PW-1) conductedautopsy vide Ex. P/2 andfound following injury: i. laceratedwoundof1.5x1 x0.2"overrighteye ii. contusion over right side of the chest of 2 x 1.5" iii. contusionovemghtsideofthe^eofl x1" iv. contusion over right shoulder of 1 x 1" V. contusion over left ade of fte abdomen of 3 x 0.5" vi. fractuFeotrtghtmaxillaandfrontalregion. Cause of death was head injury and deatti was homieidat in nature. Thie Docfor has also examined Budri Bal (PW-2) vkle Ex. P(1 and tound abrasion 6f3x I" over left ttiigh. Two axes stained with blood wsre seized from the appeltant vide Ex.P/5. Btood stained soil and plain soil was recovered from the spot vide Ex. P/11. Spot map was prepared vide Ex. P/13. Statemente ofthe wtoesses were recorded under Section 161 oftheCodeofCriminalProcedure,1973(inshorttheCode). 4. After completion of inv^stlgation, cha^iesheet wasfiled bafore the Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Gourt of Sessions, Jagdalpur, ftom where the leamed Additional Sessions Judge recelved ttiejsaseon transfer for trial. 5. In order to provjethe guilt of the accused/appeyant, prosecuUon e)amined as many as 6 witnesses. Aecused was exainiiied under :i"s'-7'!gi ^: Sectlon 313 of theCode^in which, he denied the circumstances appearing againsthim, innocence and false implication in crime in question was ctaimed. 6. After affordlng opRprtunity of hearing to the parties, the learned AdditionalSessions Judge convicted and sentenced the appellant as aforesaid mentioned. '.s . . ^' 7. We have heard Shri Jj^.Lohani, toamed counset for the appellant and Shri U.K.S. Chandel, leamed P.L. for the State, pemsed the judgment impugned and record ofthetrial Court. 8. Leamed counsel for the appeltant vehemently argued that in the light of evldence of injured witness Budri Bai 03W-2), he is not disputing the factthat the appellant hasnot caused homicidal death ofhis mother- Nande Bai and has not caused simpte injury to Budri Bai (PW-2). He submitted that theclrcumstances leading forcausing such injuryandthe incident, suggests ttiat present appellant has not committed culpable homicide amounting to murder of his moftier by using blunt (»rtof Uie axe. He has caused the injury on sudden provocaUon when he was not provided meal in proper time. He furttier argued that the appellant is mentally III and was confined in a room of the house \y/ his family members, including his mother 9. On theofter hand.learned counsel for the State vehemently opposed these arguments and submitted that fte teamed MdiUonal Sessions Judge has rightly convicted and ssntenced th®appeltent as aforesaid raentioned. 10. In order to appreciate the arguments advanced on behaff of the partles, we have examined ^ie evidence adduced on behalf of the prosecution. 11. In the present case, homicidal 'deatti as a result <rf fatal injuiy found over the body of the deeeased- Nande Bai and simpte injury to Buctri Bal (PW-2) has not been substantolly disputed on behalf of tti®appetlant, on :'•' ':'-.'7l--":'.-'"'~I77T^Egj^^!^ 4 •<]; ^t,^.r^. the other hand, it is establishad by the evidence of Dr. Tejsingh Nag (PW- 1) and autopsy report Ex. PQ, injury report Ex. P/1 and death was homicidat in nature. 12. As regards complicity otthe accused/appellant in crime in questton is coneemed, although same has not been disputed on behalf of the appellant and it is establlshed by the evidence of Budrt Bai (PW-2), who has promptly todged FIR vide Ex.<P/4 and death of the deceased was homicidal in nature. Slmpte injury tia^ been causedto Budri Bai (PW-2). 13. As regards motive for commission ofthe offence is concemed.as per para 10 of judgment, Courtbelow Nself has recorded a finding that during the course of trial appellant was mentally ill and he was sent for mental treatment. Even otherwise, autopsy report cleariy revealed that the appellant, who was holding the axe has not used e sharp part of the axe and has caused injury by bluht part that too on trhnal ground for not providing meal in time.It shows that the appellant has caused the aforesaid injury on sucklen provocation by the axe and he was not having knowledge that by his act his mottier may die. The aforesaid cireumstances cleariy revealed that the appellant has not caused homicidaldeath amounting to murder of his mother and his act squarely falls within the ambltof SecUon 304 Part 1 of the IPC. WhHe convicting and sentencing the appellant under SecBon 302 of the IPC, the leamed Additional Sessions Judge has not considered the aforesaid aspect of the case and thereby commltted illegality. 14. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 323 of the IPC is hereby maintained and convicUon ofthe appellant under SecUon 302 ofthe IPC is altered intoSection 304 Part 1 offte IPC and he te sentenced for the custodial period i.e. from 1.6.2002 till today for about 9 years. He be released forthwtth, if not requlred in any other case. Sd/- T\P.Shar?na Judge Sd/- R.L. Jhanwar Judge