,\''! ^!-6" ^ HIGH COUKT OF CHHAmSOARH AT BILASPUR !8 1111;^ Crimlnal Aptieal No.523/2005 APPBLLANT (InjaU) RESSPONDENT Ramlu Qond, age 45 yeara s/o Chaiau Ram Occupation Labour R/o Keramiuida, PS Sihawa, District Dhamtari, CG State of Chhattisgarh Through S.H.O. P.S. Sihawa, District Dhamtari(CQ) CRIMINAL APPEAL U/S 374 (31 OF THB CODE OF CRIMINAL PROCUDERE Appearaace: Shri R.K. Shanna, counsel for ttie appeUaat. Shri Ashish Shukla, Govenunent Advocate for the State. Division Beach:- Hon'bleShri T.P. Sliarma & Hoa'ble Shri R.L.Jhaawar.JJ ORAL JUDGMEiST Per T.P.Sharma, J. (12.11.2010) Challenge ia fhis appeal is to ttie judgiaeat of conviction aad order of sentence dated 29.4.2005, passed by fhe Additional Sessions Judge, Dhanitari, Sessions Division, Raipur (CG) in S.T.No.383/2004, whereby and whereiinder tbe lcanied Additional Sessions oudge, after holding ftie appeUaat giiilly for coimnission of culpable homicide aiaouatmg to murder pf Kaashiram, i.e. son ofthe appeflant and step son of Dasban Bai, wlule acquittiag Dashaa Bai, convicted the appeUaat under Section 302 of fhe IPC and sentenced for Ufe imprisoiuaent aad fineofRs.100/-. M! lillll: ^.^^E^i ISBa 2. The conviction is unpugned on tbe ground that wifhout fh.ere benig any iota of evidence siifBcient for coaviction of ftie appeUaat, fhe learued Additional Sessions Judge has convicted aad sentenced fhe appellaat as aforeinentioned aad fhereby couuiuttEd fflcga&ly. 3. As per case of piosecution, Kanshiiam (siace deceased), son of appeUaut- Ramlu was residiag ia saine house, where appeUaat was residing. On fateful day of 23.9.2004, at about 1,30 pm, Kaasluram was stealiag inaize from fhe kitchen garden of the appeUaat. On accouat of such, a dispute arose and appeUaat along with his second wife - Dashan Bai, with whoru appeUaut was residmg iu a separate room, caused injury to Kansluram by axe and kudaU aad fhcreby caused his iu.staatan.eous death. Mother of Kanshiram i.e. Dayavati (PW-1) lodged Dehati NaUsbi vide Ex. P/13 and Merg intiinafion vide Ex. P/14. After sumiaoiung witaesses vide Ex. P/1, inquest over fhe dead body of fhe deceased was prepared vide Ex. P/2. 5 Nos. Biaize were seized vide Ex. P/4. Dead body was aeat for Autopsy to Goverument Hospital, Sibawavide Ex. P/ll-A, where Dr. R.K. Thakur (PW-9) conducted autopsy vide Ex. P/11 and found followiag uijuries: i. Lacerated cut injury over left side ofthe head of 9 x 2.5 x 1 cm ii. Sharp cut injury over chia of5 x .5 x .5 cm ui. Lacerated wound over forehead of2x .5 x .5 cui iv. Incised wound beside moufh of .5 x .5 x.5 cm v. Contusion over fhe chest of 18 x 10 cm vi. Fracture ofhead below injury No.l i.e. fl-ontalboae was found Mode of death was optaed to be shock aad deafh was houiicidal ia nature. Plaia soU, blood stamed sofl. aud broken ...-.L. pieces of baagles were recovered froni the spot vidc Ex. P/6. Accused Raaalu was taken iiito custody. He made disclosure statement of axe, kudaU and wooden plaiik vide Ex. P/5; same was recovered at his instaace vide Ex.P/7. Baagles aflter reinoving ironi fhe hands of co-accused Dasban Bai were seized vide Ex. P/8. Patwari prepared spot map vide Ex. P/9. Seized ardcles were sent for examination aad Doctor examined fhe articles vide Ex. P/12. FIR was lodged vide Ex. P/17. Statements of fhe witnesses were recorded under Section 161 of the Code of Crimiaal Procedure, 1973 (ia short the Code). 4, After completion of iuvestigation, charge sheet was filed befbre fhe Judicial Magistrate First Class, Dhamtari, who in tum, committed fhe case to fhe Coiirt of Sessions, Raipur fi'oia where, the leamed Additional Sessions Judge received the case on transfer for trial. 5. In order to prove fhe guUt of the accused/appeBaat, prosecution examined as niany as 11 witoesses. Accused werc examined under Section 313 ofthe Code, where they denied the circuiastaiices appearing against tfaein, ianocence and false implication in crinie in question was claimed. 6. After affordiag opportunity of heariug to fhc partiies, leamed Additional Sessions Judge, white acquitting co-accused Dashaa Bai, convfcted and sentenced Ae appellaat as aforementioned. 7. We have heard Shri R.K. Sharma, leamed counsel for the appellant and Shri Ashish Shukla, leamed Goverameat Advocate for the State, judgment impugned and record of fhe Court below perused. 9/ 8. Leamed coiuisel for fhe appeUant veheiaentty argued that in. fhe light of evidence of Ramshila Bai (PW-2) and Kamitala Bai (PW-3), daughters of fhe appeUant and sisters of Kausbiram, he is not disputmg the fact that present appeUaat has caused homicidal death of his son, but pi'osecution has not proved fhe fact that fhe appeUant has caused such mjuiy with intent to cause death of his son. The iacident took place at a spur of nioinent, on account of stealing of inaize from fhe kitehen garden of the appeUaut; a quarrel took place aad ftie appellant took out fhe object lyuig ou the spot and has caused iajury to Kanshirain, fherefore, the act of the appellaat does not travel beyond the scope of Section 304 Part I of the IPC. He further submitted that present appellau.t is the fafher of fhe deceased, who is in custody siace 25.9.2004 and has coiapleted more than 6 years of unprisonttieiit aad tbe same would be the suf&cient sentence for fh.e appeUant for conunission ofthe aforesaid ofifence. 9. On the other haad, learaed counsel for fhe State opposed these arguiaents aud subnutted fhat evidence of Ramshila Bai (PW-2) aud Kamitala Bai (PW-3), daughters of the appellant and sisters of Kaiishiram is sufficient for drawiag aa mference fhat the appeUaut has caused hoinicidal deafh of the deceased witfa iatent to cause his death, therefore, Court below has righfly convicted and sentenced fhe appeUant as aforesaid mentioned. 10. In order to appreciate the ai^uiuents advaaced on behalfof ffae parties, we have examiaed fhe evidenee adduced on bebalf of the prosecution. 11. In fhe present case, hoinicidal death as a result of fatal injuiy found over fhe head of the deceased - Kaashiraia has not beea substantiatly disputed on behalf of fhe appeUaat, on fhe ofher hand, has been estabUshed by the evidence of Dr. R.K. Thakur (PW-9) and autopsy report Ex.P/11 and death was homicidal in. nature. 12. As regards compUcity of fhe accused/appeBant ia cnme in question is concemed, alfhough "fhe appeUant has not disputed the fact fhat he has caused honucidal deafh offhe deceased, but evidence of Ramslula Bal (PW-2) and Kamitala Bai (PW-3), sisters of the deceased and daughters of fhe appeUant is sufficient for drawing an mference that the appeflaat has caused fatal iajuries to fheir brother Kanshiram. aad thereby caused his death. 13. As regards the questiou ofmotive is concenied, ia case of direct evidence, ruotive looses its uaportance, even otherwise niotive only aids in criminality and it caa be iiiferred fiTOia ttie use of weapons, parts of fhe body affected and other sijuular circiimstauces. 14. In fhe present case, as per evidence of Ramshita Bai (PW-2) aad Kamitala Bai (PW-3), deceased Kanshiraia, son of the appeUant was stealing inaize fix>m the kitohen gardcn of fhe appellaat, situated besidcs their house. The sanae was objected by the appeUant. The appeUant also used to scold his son that he is not working aud assisting him in ^ricultural works and he is steaBng the inaize and tiiereafter, he took out the wooden plank, kudali aud axe and assaiilted bis son. His sou died iastaataneously. Autopsy report Ex. P/11 aad evidence of Dr. R.K. Thakiu- (PW-9) revealed that the injury found over fhe head coupled with fi-acture of frontal bone was onty fatal ia nature and rest of the iujuries •were sniall in size and were not fatal or grievous ta nature. n : • 15. Considermg the cause of dispute and relation of tbe appeUant with fhe deceased and ftie fact that at a spur of inoment, on sudden provocation while the deceased was steaUng maize from the kitehen garden, the appeUaat took out fhe object lyiug on the spot and assaulted his son and caused oue fatal injury atong with other siniple injuries. It cau be safely iaferred that at fhe tuue of causiag injury, appcUant was haviag kuowledge that by lils act, fhe deceased may die, but the appellant has uot caused any injuiy with uitent to cause death of the deceased, fherefore, fhe act of the appeUant does not travel beyond section 304 Part I of ftie IPC. While convictmg and sentencing (he appeUant, Court below has not considered fhe circuxiistaaces, iu which, the iucident took pkice and appeBant has caused uijuiy to his son, aad fhereby committed iUegalily. ,^ ^ 16. For fhe foregoing reasons, the appeal is partly atlowed. Considemig the nature ofinjuries caused by fhe father to his son on a petty grou&d, conviction ofthe appeUant under Section 302 offhe IPC is altered into Section 304 Part- I IPC and the sentence for life unprisonm.ent ofthe appeUant is reduced to 10 years R.I. Sd/- [-K Sharma Judge Sd/- R.L. Jhanwar Judge