"Wll.'iKftlSS I^G»SG@URT^ReMHAl^SS^H^BrLASPU APPELLANT: GriminalAEii>ealNo.313of 1992 Dilcharid S/Q Ghadul Satnami aged about 25 years occupation agriculturist, r/o village Bhalumar thana Gharghoda distt. Raigarh. (In Jail) Versus RESPONDENT: State of M.P..(now C.G.) through Station House Officer Gharghoda {Appeal under Section 374 of the Code of Criminal Procedure, 1973} Present: Mrs. Indira Tripathi, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. sasisB Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr.R.L. Jhanwar, 33 ORALJUDGMENT (29-4-2010) T.P, Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 11-2-92 passed by the Sessions Judge, Raigarh in Sessions Tria! No.110/91, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his grand-father Ramcharan, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that the appellant, who is grand- son of Ramcharan (since deceased), is residing adjoining to the house of Ramcharan and three days prior to the incident the appellant was playing tape recorder in full sound even at night on which Phulchand, son of Ramcharan objected. On 12-5-91 at about 4 p.m. the appellant was again playing tape recorder in full sound to 2 which Phulchand objected, at that time, Ramcharan came out from house and he also objected, whereupon the appellant took betel axe and inflicted one injury over the neck of his grand-father as of result, his grand-father Ramcharan fell down and died. Phulchand (PW-5) went to the Police Station and lodged merg vide Ex.P-16 & F.I.R. vide Ex.P-5. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of Ramcharan vide Ex.P-4. Dead body was sent for autopsy of Block Medical Offlcer, Gharghoda vide Ex.P-8. Dr. B.R. Banjare (PW-7) conducted autopsy vide Ex.P-9 and found one incised wound of 5" x 0.3" x 2" over left side of neck of the deceased. Internal organs of neck were found cut and mode of death was shock. During the course of investigation, tape recorder and cassettes were seized vide Ex.P-1. Bloodstained & plain soil were recovered from the spot vide Ex.P-6. Betel axe was seized from the accused vide Ex.P-7. Sealed clothes of the deceased were seized vide Ex.P-11. Seized articles were sent for chemical examination vide Ex.P-12. Patwari prepared spot map vide Ex.P-20. Presence of blood was found over the betel axe. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. 4. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Gharghoda who in turn, committed the case to the Court of Sessions, Raigarh. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. 6. After affording opportunity of hearing to the parties, learned Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that except Guruwari Bai (PW-1) - daughter-in-law of the deceased, no witness has supported the case of the prosecution, her evidence does not ^.irispire Gonfidence, it is not trustworthy and safe to rely. Learned counsel further argued that even as per the case of the prosecution, sihgle injury was inflicted upon the deceased after altercation and quarrel, therefore, the act of the appellant does not travel beyond fhe scope of Section 304 Part-II of the I.P.C. Learned counsel placed reliance in the matter of Brij Lal v. State in which Lucknow Bench ofAllahabad High Court has held that in case ofsingle injury, death of person is not culpable homicide amounting to murder, but the offence squarely falls within the ambit of Section 304 Part-II of the I.P.C. Learned counsel further placed reliance in the matter of Ravi Kumar v. State of Punjab in which the Apex Court has held that in case of two blows after quarrel, the act of the accused is punishable under Section 304 Part-II of the I.P.C. Learned counsel also placed reliance in the matter of Krishna Tiwary and another v. State of Bihar in which the Apex Court has held that injury caused after sudden quarrel, offence is punishable under Section 304 Part-I of the I.P.C. Learned counsel relied upon the matter of Hem Raj v. The State (Delhi Administration) in which the Apex Court has held that single knife blow inflicted on chest of the deceased on the spur of the moment upon a sudden quarrel, resulting in death, conviction of the appellant would be under Section 304 Part-II of the I.P.C. Learned counsel further relied upon the matter of Ram Prakash Singh v. State of Bihar in which the Apex Court has held that accused inflicting single knife injury to deceased is liable to be convicted under Section 304 Part-II of the I.P.C. 9. On the other hand, learned State counsel opposed the appeal and submitted that although the accused has caused single injury over the neck of the deceased, but he has caused injury over vital part . knowing the result of injury. The prosecution has proved its case beyond all reasonable doubts and the trial Court has rightly convicted & sentenced the appellant. l0.in order to appreciate the arguments advanced on behalf of the parties, we have examined the material available on record. ' 2004 Cri. L.J. 1873 2 2005 Cri. L. J. 1742 3 2001 AIRSCW 2402 , 41990(Supp) SCC 291 x 5 1998 Cri. L. J.1622 'Ci K:, 1 "^ s jf sf •^"'^ •^y^ ll.In the present case, homicidal death of deceased Ramcharan as a result of ante-mortem fatal injury has not been substantially disputed on behalf of the appellant, otherwise also it is established by the evidence of Dr. B.R. Banjare.(PW-7) and autopsy report Ex.P- 9 that the death of the deceased was homicidal in nature. 12.In order to connect the appellant with the crime in question, the prosecution has examined eyewitness Guruwari Bai (PW-1) - daughter-in-law of the deceased, who has specifically deposed that the appellant was playing tape recorder for last 2-3 days which was objected by her mother-in-law and on the date of incident it was again objected by his brother-in-law Munnu Babu, but the appellant refused on which Ramcharan (since deceased) came out from house and he also objected whereupon the appellant abused & assaulted Ramcharan with betel axe as of result, Ramcharan fell down and died. After commission of murder, the appellant was moving the betel axe. Defence has cross-examined this witness in detail, but has not been able to elicit anything in her cross-examination to discredit her testimony. Her evidence is corroborated by the evidence of her husband Rameshwar Kumar (PW-2) and Phulchand (PW-5). Evidence of these witnesses is sufficient for drawing inference that the appellant has assaulted his grand-father with betel axe and caused single injury. l3.As regards motive, evidence of Guruwari Bai (PW-1) & Rameshwar Kumar (PW-2) clearly reveals that the appellant was using tape recorder in full sound and when it was objected by his grand-father some altercation took place and the appellant caused single blow on the neck of his grand-father Ramcharan as a result of which Ramcharan fell down and died. There was no previous enmity, no premeditation of mind and without premeditation, on the spur of the moment when it was objected by the deceased, the appellant assaulted the deceased which shows that the appellant has not caused any injury with intent to commit the murder of his grand- father. 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