WW,W,W WW. “i 200 ‘ 311%?! mm (W) ‘ . x . hmmn xd": mWiWW g I Crimin ' A eal No.1012 2001 APPELLANT S at Kumar S/o Jagdish Nai, aged ab ut 35 years, R/o Village Champamn, P. . Gobara - Nawapara, District Raipur . .) ; JV ‘ ‘ § - Versus RESPOND‘ENT e of Chhattisgarh CRIMINAL APPEAL ulg 37412! OF THECODE OF CRIMINAL > PROCEDURE D.B.: HON’BLE SH L.C. BHADOO, J, 85 HON’BLE SH SUNIL KUMAR SINHA J. 9_RAL JUDGMENT (17.08.2097) L.C. Bhadoog J:- Shri Sanjeev Kumar Agrawal, Advocate appears on behalf of Shri Akh1'l Agrawal, counsel fof the appcllant. Smt. Anju Ahuja, Dy] Govt. Advocate for the State. Hoanl. t;W ‘ 1. This appeal 1's directed against the judgment ofconviction and order of sentence dated 20.07.2001 passed by the Special Judge (Atrocities) and Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No.367/2000, whereby the learned Special WW, §W Ell—65,W lwmw I. G'L/OQE 20 Wm @ 0 Wm‘am v-z — WW WW $§mm Judge (Atrocities) and Add] Sessions Judge, after holding the accusedfappellant guilty i‘br the oEence» punishable under nmitting murder of his son namely undergo imprisonment for life and in default of 'payment of hue to month. brief is'that the accused/appellant [ahesh, a boy aged about 13 years. a.m., Jagdish (PW—4), who is the iranglodged a report in the Police .gainst acoused-Sanat Kumar to the Sarpanch - Shakunbai (PW-9) m that on Sunday it is the last ld tell about it to every villagers. when he was telling about the a Bai (PW -8) informed- him that ,er of his son by beating him. He Sadhuram, informed him about the vent to the house of Sanat Kumar. persons including Shambhu Sahu 2) standing. On enquiry fmni Sanat has died, he did not reply, he was 2d to put oh‘ the shirt of Mahesh, he ereafter, he himself put off the shirt s were found on his chest, stomach \"‘Q.000f Seciion 302 of I.P.C., for 001 Mahesh, sentenced him to to pay a mm of Rs.500/-, further undergo R.I. for one ‘Case of the Pmsecution in is father of the deceased -1V On 27.8.2000 at about 11 Kotwar of village — Champ; Station— Gobra Nawapara a enect that on 26/8/2000, called him and said to h festival, therefore, he shou Therefore, at about 6 a.m. festival to the villagers, Lil Sanat has committed murc went to his fellow Kotwar — incident and both of them V There they saw number of (PW-10) and Rikhimm (PW- Kumar as to how Mahesh mum. When Sanat was ask‘ did not put OE the shirt. ’l‘h of Mahesh and many injurir \ \\ WW (13W) @ V ; ......ax /J..... ‘ ..... f ....... .I e435 200 mm (W) WW,W,W Q-H- — ,olz/O/ WW (W) Wm m 200 WW WW éwfcmm Code of Criminal Procedum, in which, he dsnicd thc material appearing against him in the prosecution evidence and stated that somebody has attacked his son. Ultimately, the accused stated that he is innocent and has been falsely implicated in the crime. . The learned Special Judge ‘(Atmcities) and Additional Sessions Judge, after hearing the alguments pf lealned counsel for the respective parties, icted and sentenced the accused] appellant as afore entioned. 6. At the very outset, learne counsel for the appellant has not disputed the homicidal de th of Mahesh. Moreover, PW-7 — deceased and daughter of accused] appellant, aged ab ut 9 yeais, has categorically stated that her father attacked th deceased with a piece of wood and her giandfather ~Jagdish o assaulted him with a piece of wood. 7. The above ocular evidenc ' Maheshwari, sister of is corroborated by the medical evidence of Dr. N.K. Samb kar, who has stated on 28.8.2000 that he was working as Assistant Surgeon in the Primary At that time, he conducted Health Centre, Champ postmortem on the body of Mahesh and he noticed as many as 1 1 injuries on various parts of the body of the deceased. There was a linear hacture on the right pan'etal bone of skull, contusion on the right lung and cause of death was shock, c v e s mmw WWW r WW WW WWW énifdnm excessive internal injuries, multiple conmsions on the lungs. The Doctor opined that the death was homicidal in nature. ‘ Q1 In View of the above ocular and medical evidence, it is 5 established that the death of Mahesh was homicidal in natule. As far as involvement of accused/appellant in crime in question is concerned, PW—7 - Maheshwari, who is the daughter i of the accused and sister of the deceased, aged about 9 years, has categorically stated that her brother — Mahesh had stolen paddy weighing 1—2 kg and sold it at a shop. When her father came to know about the s e, he called Mahesh from the hotel of Santu and thereafter, fl er father/accused — Sanat and grandfather - Jagdish, both assaulted him with a piece of wood, as a result of which, Mahesh sustained many injuries. Mahesh’s voice was choked, therefore, her father went to call the Doctor, but the Doctor denied coming. In theamorning, when the villagers came, his father said that Mahesh has died on account of vomiting and loose motion. In the cross- examination of this witness the defence has not been able to elicit any circumstance, w ch discredits the evidence of this child witness. Moreover, PW—Z — Rikhiram Nishad has categorically stated that the fateful day, Lilabai W/o Sadhuram- Kotwar came to his house and informed him that Sanat has committed m der of his son, therefore, he alongwith Kotwar went to th house of Sanat, where number of . persons were, standing, ac used/appellant was also present \ 4“, ‘=<0,000. .5; WW,W,W Xx[ u;c lO. Learned counsel for the a pellant submits that the deceased was the son of accused] ap ellant. As the deceased committed theft of paddy) gig prior to that he‘ ran away to Bombay where he stayed for some time an returned back h‘om there one-two days prior to the date of in ident, it enraged his father, who on account of bad habits of s son, in order to correct him and W m Q ARM/0 .{FL 200 W m (W) m‘emfaa‘w mmmm WWI§WW awnm m mm é % aff‘mm there Whcn they went msi e the courtyard of the house, body of Mahesh was lying. Fathe of Sanat said that accused — Sanat has murdered h1s grand-s They saw many injuries on the j body of Mahesh, clofted b1 0d was also present. Thereafter, he 1 enquired n‘mn Sanat ab t the incident, on which, he ; a ‘ disclosed that his son —- ahesh committed theft of paddy, therefore, he scolded and ave beating to him, on account of which, he has died. In the cross-examination of this Witness, r defence has not been able t bring on record any circumstance, which discredits the eviden e of this witness also. 9. As far a‘s truthfulness of " judicial confession is concerned, the same stands corrob ated by the evidence of PW-7- Maheshwari, Even the we pon of offence, which was used in attacking the deceased, as recovered at the instance of accused/appellant. There re, in View of the above, the complicity ofthe accused ' attacking and assaulting his son — Mahesh with a piece ofwo d is established and to that extent, we do not hnd any illegali or infirmity in the judgment of the trial Court. XIIHC—78 mm (W) (Mi fwm’far- F i WW%%¢§W 9,; mtm amst the accused/appellant does not travel beyond Secuo 304 Part-II of IPC 011 the other hand, 1 arned counsel for the State supported the judgment of the trial Court. She argued that the accused gave 7 beating to Mahesh teach him a lesson so that Mahesh should not continue with the bad habits, gave beating to hjm’azd @re was no intention of the accused/ appellant to commit the munier of his own son Therefore oEence 911a him with a rope and even thereafter When the Doctor a ked the accused to brmg h1s son for treatment he d1d no take the deceased to the Doctor In order to apprec1at the arguments of leatned counsel for the respecu’ve parties, y ‘ 12. have perused the evidence of PW-7 — Maheshwari, who w s present in the house at the time of incident. She has ca gorically stated that his brother left his studies, ran away to Bombay and he returned from there 1—2 days prior to the d of incident. Thereafter, he Committed theft of paddy weighihg 1-2 kg and sold the same at a shop. When this fact came to the notice of his father — Sanat, he brought Mahesh hem the hotel of Santu and thereafter, her father and grandfather gave beating to Mahesh, on this, Mahesh ran away adid entered into a room and closed the door. On scrutiny of thbove evidence of this witness, it reveals that at the first mstai‘ice Mahesh left his studies and ran away to Bombay. After retuumg from Bombay, he committed theft of \\P\addy and sold the same at a shop. When this fact came to the . mC/tA M..’a 3&0 'g ' g a e Wm WW,W,W & ‘/—) f )012 o 200 amt m (W) a§g¢§$ll mmm y wmmwgm / bone, lungs sus ed contus1on which proved fatal and i u s ultlmatsly, Mahesh led from the above fatal mjmy It cannot be inferred that the accused assamted the deceased with the A intention to cause his death. Moreover, not only the accusedzappellant, ut grand father of the deceased also. attacked Mahesh, w o has not been made accused in this case. It is not known that out of the two said persons, who caused the fatal injury, w 'ch was responsible for the death of Mahesh, but fmm th above evidence and fact it may certainly be inferred that the anner in which the accused assaulted his son he had knowled e that he may likely to cause his death Therefore the mtentt n part of causing death 1s missmg 1n this case Moreover, the octor has not opined that the injuries sustained by Mahes were su$cient in the ordinary course of nature to cause dea . In view of the above, the offence against the accused does not vel beyond Section 304 Part-II of IPC. 13. For the foregoing re sons, conviction and sentence imposed upon accused] appell I t under Section 302 of IPC cannot be \ x \ 14. succeeds. a mm; ' ILHC—7s X WW,WWW ‘1 " &~A ‘ m I‘L/faL “i 230 mvm (W) . E83“mwm m “I ‘ ' WM$i§2°tm§ i 7 WQEE‘aW , . L qasi‘mwmk . ‘ 15. Accused/éppellant 's acquittsd of the said charge under Section 302 of IP Instead themof, he is convicted undsr 3 Sech‘on 804 Part-II f } IPC and sentenced to undergo R.I. for 7 ; years. It is stated ,that the appellant isin detention since 29/8/2000 till toda , therefore, the accused/appellant shall be ’ ‘ 1 cf entitled for the set if for the above detention period against 1‘ the sentence impose upon him. Sdf" _ i Sd" # ""’ J L.C.BHADoo ' sunil Kumar Sm . ha i > Judge‘ Judge K - Shyna - “v