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2012 DIGILAW 280 (CHH)

VINOD KUMAR @ NAVRANG v. STATE OF C. G.

2012-10-19

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 30th of September, 2008 passed in Sessions Trial No. 38/2006 by the Sessions Judge, Korba, District Korba (C.G.). By the impugned judgment, the appellant has been convicted U/S 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- with default sentence of R.I. for 6 months. 2. The facts, briefly stated, are as under:- Deceased- Samrit Singh was father of the appellant. The appellant, deceased and mother of the appellant namely- Rammati (PW-7) were residing together in village Bagbuda. The case of the prosecution is that on 15.1.2006, in the morning, on account of some dispute, the appellant gave single blow by lathi (danda) to the deceased. The Autopsy Surgeon Dr. Deepak Singh Raj (PW-10), found a lacerated wound over the left temporal region beneath which there was fracture of 5 x 4 cm. He opined that the cause of death was coma due to head injury and the death was homicidal in nature. The post-mortem report is EX.-P/22 (A). The incident was witnessed by Rammati (PW-7) and Budhwara Bai (PW-4). Both the eye-witnesses turned hostile. However, Rammati (PW-7) admitted to witness the incident in her cross-examination. She admitted that a quarrel was going on between her husband (deceased) and her son (appellant) and the son (appellant) assaulted the deceased on his head by using a danda. The learned Sessions Judge relied on the testimony of Rammati (PW-7) and convicted & sentenced the appellant as above. 3. Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in the incident. He has argued that in the above facts and circumstances of the case, when in a sudden quarrel, the appellant gave single blow to the deceased by lathi, an offence U/S 302 IPC would not be made out and the act of the appellant would be punishable under some lesser Section preferably Part-II of Section 304 IPC. He cited the judgment of Gurmukh Singh Vs. State of Haryana (2009) 15 SCC 635 . 4. On the other hand, Mr. Vinay Harit, learned Dy. Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. He cited the judgment of Gurmukh Singh Vs. State of Haryana (2009) 15 SCC 635 . 4. On the other hand, Mr. Vinay Harit, learned Dy. Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. We have gone through the evidence of Rammati (PW-7). She is wife of the deceased. Though in her examination-in-chief, she deposed in clear words that she had not seen the incident, but, in her cross-examination by the Public Prosecutor, she categorically admitted that she had seen the incident; the appellant and the deceased were quarrelling; and in quarrel, the appellant assaulted the deceased by a danda. The Autopsy Surgeon also found above injury on the head of the deceased which could have been caused by danda. Therefore, we do not find any infirmity in the finding recorded by the Sessions Court that it was the appellant who assaulted the deceased by a danda due to which the deceased received above injury and succumbed to the said injury. 7. Now we shall consider the main argument advanced by Mr. Sharma. 8. The incident took place inside the house of the deceased in which the appellant, deceased- Samrit Singh and mother of the appellant, Rarnmati, (PW-7), were residing together. The incident took place in the morning. Rammati; (PW -7) deposed that she was present in her house at the time of the incident. She deposed in clear words that in the morning her husband (deceased) and her son (appellant) were quarreling inside the house. At that time she was cooking vegetable. She deposed that during the quarrel, she had said to the appellant not to assault the deceased, but even after that the appellant assaulted the deceased by a danda. The above evidence of Rammati (PW-7) makes it clear that a quarrel has preceded the incident. She doesn't depose that the appellant was armed with a danda. That means, during the quarrel, the appellant picked-up a danda and gave single blow to the head of the deceased which proved fatal. This shows that there was no preparation or premeditation on the part of the appellant to commit murder of his father (deceased). The appellant gave solitary blow. The appellant did not repeat the blow. That means, during the quarrel, the appellant picked-up a danda and gave single blow to the head of the deceased which proved fatal. This shows that there was no preparation or premeditation on the part of the appellant to commit murder of his father (deceased). The appellant gave solitary blow. The appellant did not repeat the blow. All this make it clear that the appellant had no intention to commit murder of his father (deceased). It appears that in a sudden quarrel between father (deceased) and the son (appellant), the son (appellant) became enraged and in heat of passion, he picked-up a danda and gave single blow to the skull of the deceased. We are of the view that in the above facts and circumstances of the case, intention of the appellant cannot be inferred, but knowledge can well be inferred that his such act was likely to cause death of his father. 9. In Gurmukh Singh (supra), the Supreme Court discussed some factors which are required to be taken into consideration before awarding appropriate sentence to the accused in such cases with a caution that these factors are only illustrative in character and not exhaustive : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or Injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (t) The age and general health condition of the accused; (g) Whether the injury was caused without pre-meditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; g) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (1) Incident occurred within the family members or close relations; & (m) The conduct and behaviour of the accused after the incident. 10. We have examined the instant case in light of the above factors and also in light of the provisions of Sections 302 vis-a-vis 304 IPC. 10. We have examined the instant case in light of the above factors and also in light of the provisions of Sections 302 vis-a-vis 304 IPC. We are of the view that in the above facts and circumstances of the case, where the intention of the appellant was lacking, the act of the appellant would not be punishable U/S 302 IPC and the appellant would be liable for punishment under Part-II of Section 304 IPC. 11. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellant U/S 302 IPC are set-aside. Instead thereof, the appellant is convicted U/S 304 Part-II IPC and sentenced to undergo R.I. for 7 years. The appellant is in jail since 15.1.2006. He shall be entitled to set-off the period already undergone. Appeal Partly Allowed.