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2012 DIGILAW 323 (CHH)

PHOOLCHAND v. STATE OF C. G.

2012-12-06

R.N.CHANDRAKAR, T.P.SHARMA

body2012
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 12.08.2004 passed by Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No. 67/2004, whereby & where under after holding the appellant guilty for causing homicidal death amounting to murder of his father Shiv Ram (since deceased), convicted him under Section 302 of the IPC and sentenced to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on fateful day of 13.12.2003 between 5.00 to 6.00 p.m., some altercation and quarrel took place between appellant and PW/4-Adbari, mother of appellant. Appellant assaulted his mother PW/4-Adbari, whom deceased Shiv Ram intervened then appellant also pushed him, he fell down and appellant pelted stone over the head of deceased and he received injury. Deceased Shiv-Ram was not immediately treated by doctor but on 23.12.2003 he was brought to Maharani Hospital, Jagdalpur for treatment, he was having head injury & tetanus and he died on same day. Death was intimated to S.O., City Kotwali, Jagdalpur by doctor vide Ex. P/9 and merg was recorded vide Ex. P/8, FIR was registered vide EX.P/5. After summoning the witnesses vide Ex.P/1, inquest over dead body of deceased was prepared vide Ex.P/2. Stone was seized vide Ex.P/3. Dead body was sent for autopsy to Maharani Hospital, where PW/3-Dr. R.B.P. Gupta conducted autopsy vide Ex.P/3 and found following injuries:- (i) Old injury of 4 x 4 cm over left parietal region with depressed fracture. Cause of death was head injury and its complication. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Jagdalpur, who in turn, committed the case to the Court of Sessions, Jagdalpur. Learned Sessions Judge, Bastar at Jagdalpur received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 8 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication in the crime in question is claimed. 6. 5. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 8 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication in the crime in question is claimed. 6. After providing 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. Mr. Ashok Verma, learned counsel for the appellant vehemently argued that as per the case of prosecution, one injury over the left parietal region of 4 x 4 cm coupled with depressed fracture has been noticed. Injury has been caused on 13.12.2003 but he was not treated by any doctor and he denied for treatment. On 23.12.2003, deceased died as a result of tetanus, head injury and its complication, which reveals that cause of death was not along injury, if he was treated in time then deceased would not have died. Therefore, if the case of prosecution is considered in its face value, even then the act attributed to the appellant does not travel beyond the scope of Section 304 Part-II of the IPC. 9. On the other hand, Mr. Ashish Gupta, learned Panel Lawyer for the State opposed the appeal and submitted that appellant has caused homicidal death of deceased and evidence adduced on behalf of prosecution is sufficient to prove its case. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 11. In the present case, homicidal death of deceased as a result of head injury and its complication has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of PW/3 Dr. R.B.P. Gupta and autopsy report Ex.P/3 that death of deceased was homicidal in nature as a result of head injury and its complication. 12. As regards complicity of the appellant in crime in question, conviction is substantially based on evidence of PW/4-Adbari and PW/5- Tularam. As per evidence of PW/4-Adbari, appellant was quarreling with her, thereafter he assaulted her. When deceased tried to save her then appellant pushed the deceased, he fell down thereafter appellant pelted stone over his head. 12. As regards complicity of the appellant in crime in question, conviction is substantially based on evidence of PW/4-Adbari and PW/5- Tularam. As per evidence of PW/4-Adbari, appellant was quarreling with her, thereafter he assaulted her. When deceased tried to save her then appellant pushed the deceased, he fell down thereafter appellant pelted stone over his head. In para 6 of her cross-examination, she has admitted that deceased fell down over the stone and received head injury. The fact remains that deceased has received head injury either by pelting stone by appellant or by pushing the deceased over stone for causing head injury. Undisputedly, deceased was not treated about 10 days and he died as a result of head injury and its complication but injury reveals that it was 4 x 4 cm in size over left parietal region along with depressed fracture of skull bone. At the time of pelting such stones or pushing his father upon stone, appellant was having knowledge that by his act deceased may die, even after causing such injury he has denied for treatment of his father. These circumstances are sufficient for drawing inference that appellant has caused homicidal death of deceased and at the time of causing injury he at least was having knowledge that by this act deceased may die but he has not caused homicidal death of deceased with intent to cause his death. Therefore, the act attributed to the appellant squarely covers within the ambit of Section 304 Part-II of the IPC. 13. While convicting and sentencing the appellant under Section 302 of the IPC, Trial Court has not considered the circumstances in which the incident took place, nature of injury and absence of treatment and thereby committed illegality. 14. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered into Section 304 Part-II of the IPC and he is sentenced to undergo RI for the period already undergone by him. Appellant is in custody since 10.01.2003 i.e. for more than 8 years. He be set at liberty at once and be released forthwith, if not required in any other case. Appeal Partly Allowed.