JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 24-4-2002 passed by the VIIth Additional Sessions Judge, Raipur, C.G., in Sessions Trial No. 209/2000 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for causing homicidal death not amounting to murder of Sugriv, convicted the appellant under Section 304 Part II of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine Rs. 5000/-, in default of payment of fine, to undergo additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that without there being any iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 2. As per case of the prosecution, on 22-4-2000 at about 4.00 p.m., Samaru, father of the deceased, Sugriv, reached to Police Station Arang and lodged the First Information Report (Ex.-P/3) and merg intimation (Ex.-P/4) wherein he stated that on 21-4-2000, at about 9.00 p.m. when he was present in his neighbour Mangla's house where marriage of her daughter was being held, the appellant came along with a stick and asked him where his son Sugriv is and told that Sugriv entered into his house, he will not leave, take care of him otherwise he will also beat him thereby he attempted to beat Samaru which was protested by Ramlal Rawat and others as to why he is beating a senior citizen. Thereafter, the appellant left the place. Initially Sugriv left his house without intimating anybody, when he returned at about 11.00 in the night, he kept him inside the house. At about 6.00 a.m. morning when Sugriv went to answer the call of nature, after 5 to 10 minutes, the appellant came and asked about Sugriv. He had not replied, then the appellant went to the same direction where his son went. At about 8.00 to 9.00 a.m., his son Sugriv returned home and the appellant also came behind Sugriv, he was having stick at the moment and said that today he made correction in Sugriv by assaulting him in a volume and thereafter he pushed Sugriv in the cot lying in the court yard of his house. Samaru and other family members noticed many injuries over body of Sugriv. Samaru and other family members noticed many injuries over body of Sugriv. Thereafter, Samaru went for making arrangement regarding treatment of Sugriv in some hospital, he returned back his home at about 12.00 noon after making arrangement, he found his son died. Thereafter, he along with Village Kotwar Jam Bai and Bhagat Dheemar reached to Police Station Arang and lodged the First Information Report and merg intimation accordingly. Police numbered the merg as 17/2000 under Section 174 of the Code of Criminal Procedure, 1973 (for short 'the Code') and registered the First Information Report vide crime No. 59/2000 under Section 302 of the IPC against the appellant. Assistant Sub-Inspector R.S. Pandey (PW-7) of Police Station Arang made over the case diary to In-charge, Police Station, Arang, S.L. Maravi (PW-12) who during the enquiry gave inquest notice to the witnesses vide Ex.-P/5, conducted the inquest vide Ex.-P/6. He also seized from Samaru, paint, shirt and heavy hand made mattress vide Ex.-P/9. The dead body of Sugriv was sent for autopsy by memo Ex.-P/14. Doctor Gyanesh Kumar Choubey (PW-11) conducted the autopsy and noticed multiple contusions antemortem, swelling present over neck and jaw and occipital region backside bluish and swelling present over neck area, neck was disfigured, one antemortem lacerated wound 5 c.ms. x 2 c.ms. on right jaw, blood clot present over right area canal and also on the ear canal, contusion 4 c.ms. x 2 c.ms. over back of chest, also contusion 6 c.ms. x 2 c.ms. over chest. He noticed on internal examination, swelling and inflation of right occipital scalp, hematoma present 8 c.ms. x 6 c.ms. of size, deposit of blood and swelling present. As per opinion, the death was occurred due to injuries possibly of neck and head injury and was homicidal in nature. The duration between the death and autopsy was opined to be 48 hours. He gave autopsy report vide Ex.-P/13. The appellant was taken into custody, he made disclosure statement of facts vide Ex.-P/8. One bamboo stick was seized at the instance of the appellant vide Ex.-P/7. Shirt and pant stained with blood were seized from the appellant vide Ex.-P/10. The appellant was arrested vide arrest memo Ex.-P/11 and Ex.-P/12. The seized articles were sent for chemical analysis to Forensic Science Laboratory (FSL), Raipur vide draft Ex.-P/15. One bamboo stick was seized at the instance of the appellant vide Ex.-P/7. Shirt and pant stained with blood were seized from the appellant vide Ex.-P/10. The appellant was arrested vide arrest memo Ex.-P/11 and Ex.-P/12. The seized articles were sent for chemical analysis to Forensic Science Laboratory (FSL), Raipur vide draft Ex.-P/15. The FSL, Raipur after necessary examination gave its report Ex.-P/16 wherein no blood stain is noticed in the clothes of the appellant. The statements of the witnesses were recorded under Section 161 of the Code. 3. After completion of the investigation, charge sheet was filed on 14-6-2000 before the Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Sessions, Raipur, the learned Additional Sessions Judge received the case on transfer and conducted the trial. The appellant was charged under Section 302 of the IPC which was denied by the appellant and he prayed for trial. 4. In order to prove the guilt of the appellants, the prosecution examined as many as 12 witnesses. The appellant was examined under Section 313 of the Code wherein he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question. The appellant examined one defence witness namely Bharatlal Chandrakar (DW-1) who deposed in Court that the appellant was mad and on the date of incident, he fell down as he slipped in the floor stone at about 12.00-12.30 in his house and her wife was applying oil, thereafter, he do not know about the other facts. 5. After providing opportunity of hearing to the parties, the learned Additional Sessions Judge held the appellant guilty for culpable homicide not amounting to murder and convicted the appellant under Section 304 Part II of the IPC; also held that offence of murder is not proved, but offence under Section 304 Part II of the IPC is proved and accordingly he sentenced the appellant as aforementioned. 6. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that Ramlal before whom a incident prior to one day to the incident happened wherein the appellant scolded the father of the deceased and prepared to assault him, is not examined. 6. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that Ramlal before whom a incident prior to one day to the incident happened wherein the appellant scolded the father of the deceased and prepared to assault him, is not examined. As per the FIR and merg intimation, the incident took place on 23-4-2000, hence, the FIR and the merg intimation is written antedated. He further argued that as per witnesses and the FIR, for some hours the deceased was alive, but, he had not stated anything regarding the incident. Khedabai (PW-9, mother of the deceased) deposed different facts as in the merg and the FIR. This witness denied that the deceased was mad; she improved her police statement Ex.-D/2 and deposed in the Court that the appellant took the deceased in his house, thereafter, the appellant assaulted twice by the stick, blood was oozing from the head, not found place at her police statement Ex.-D/2. It is admitted by the learned counsel for the appellant that the appellant had taken the deceased to his house, but that time, there was no injury, no blood was oozing; oozing of blood was even not reported in the FIR and merg intimation, hence, the deceased received injuries not by beating by the appellant. It is further argued that when the deceased again tried to run away from his house, he fell down and sustained injuries over his head; the deceased was mad, he used to enter into anybody's house, the accused/appellant belongs to the same community and the deceased was uncle of the appellant by relation. Indira Bai (PW-1, wife of the deceased) turned hostile, she admitted that she made a massage and applied red oil in the injuries. At her cross-examination, in para 4, she admits that the deceased was mad, he was being treated at Raipur, he used to run away from the house for 2 to 3 days. As argued, since the appellant was nephew of the deceased, he caught the deceased outside and took him in his house, he had not assaulted or beaten the deceased. Udayram (PW-3) also admitted that mental condition of the deceased was not good. As argued, since the appellant was nephew of the deceased, he caught the deceased outside and took him in his house, he had not assaulted or beaten the deceased. Udayram (PW-3) also admitted that mental condition of the deceased was not good. As submitted, it was intention of the appellant to leave the deceased in the house because he used to run away from the house. As per Heeralal (PW-4) who is eye-witness, the appellant assaulted twice or thrice in the leg of the deceased. As argued, the appellant only took the deceased upto his house and if he made assault on the head, then certainly this witness also deposed regarding the assault over the head. As per this witness, Dukhawa (PW-6) also followed Sugriv (the deceased). Heeralal (PW-4) deposed that the deceased was mad, he used to leave his house for 2-3 days; the appellant was relative of the deceased, he only took the deceased upto his house. This witness not stated anything regarding the injuries and oozing of blood, hence, it is possible that the deceased received the injuries after the appellant had taken the deceased in his house and left him in his house. As per para 5 of cross-examination of this witness i.e. Heeralal (PW-4), the deceased was uncle of the appellant and the appellant was telling the deceased to go to his house. Mangala (PW-5) not stated anything against the appellant for the incident. Dukhawa (PW-6) only deposed that the deceased was having injury over his hand and he was complaining pain in hand, as per para 1 and para 3 of his Court deposition. As per this witness, he had not followed Sugriv (the deceased) till his house. But, as per Heeralal (PW-4), this witness i.e. Dukhawa (PW-6) went to the house of Sugriv (the deceased) behind him. It is further argued that the deceased was not having injury over head and neck, when he attempted to again leave the house, then only he fell down and received the injuries over head and neck. As per Khedabai (PW-9, mother of the deceased), the appellant brought Sugriv (the deceased) by putting him over his back; but no blood stain was noticed in the shirt and the pant of the appellant, it goes to show that he had not taken the deceased over his back and took him to his house in that condition. As per Khedabai (PW-9, mother of the deceased), the appellant brought Sugriv (the deceased) by putting him over his back; but no blood stain was noticed in the shirt and the pant of the appellant, it goes to show that he had not taken the deceased over his back and took him to his house in that condition. This also goes to show that the deceased received the injuries in any other incident. As argued, the family members put water over the head of Sugriv (the deceased), they attempted to provide water, they applied oil massage; if there was blood in the injuries then massage was not possible, meaning thereby, the deceased was not injured at that time. As per Doctor Gyanesh Kumar Choubey (PW-11), there was no injury on the leg; thus, there are no corroboration between the eye-witness and the medical evidence. As per the Doctor, injuries of the head may be by falling on the floor and the Doctor admitted one possibility that if some persons hold somebody and if that person attempts to escape and if during this attempt his neck gets collided to a hard and blunt object, then injury No. (i) and (ii) may be possible. The wooden stick is not sent for FSL examination. There are contradiction in the statements; somebody said that the deceased was followed by the appellant and some witnesses said that the appellant took the deceased over his back and took him upto the house of the deceased. As submitted, the prosecution failed to prove the case under Section 304 Part II of the IPC. Therefore, the appellant may be acquitted from the charges levelled against him. Inter alia, it is also argued that at the most, the appellant's case may fall under the ambit of Section 323 or Section 324 of the IPC and as he served part of the sentence, he may be sufficiently punished if he is convicted under Section 323 or Section 324 of the IPC and sentenced for the period already undergone by him. 8. On the other hand, learned counsel appearing for the State/respondent supported the judgment of conviction and order of sentence passed by the trial Court against the appellant and opposed the argument advanced on behalf of the appellant and submitted that the judgment of the trial Court is well founded, there is no scope for any interference. 8. On the other hand, learned counsel appearing for the State/respondent supported the judgment of conviction and order of sentence passed by the trial Court against the appellant and opposed the argument advanced on behalf of the appellant and submitted that the judgment of the trial Court is well founded, there is no scope for any interference. Heeralal (PW-4) and other witnesses deposed regarding the incident. There was a motive as the deceased trespassed into the house of the appellant in the previous night and also the appellant had not been assigned or given the job to find out the whereabouts of the deceased and to take him upto his house. As per Heeralal (PW-4), he was not with the appellant or the deceased all the time, he only saw the appellant taking the deceased and assault by the appellant and taking of the deceased upto his house. Thereafter, he was out from the scene and this witness had not gone to see assault caused by the appellant to the deceased over the head. The injuries over the head and the neck may not be caused by falling on the floor, even otherwise, possibility may not take the place of proof. Motive is proved as prior to the incident, at night, the appellant reached the neighbour's house where a marriage was being held and he scolded and gave a threat to father of the deceased to take care of his son, these all are sufficient to be held as motive. Indira Bai (PW-1, wife of the deceased) deposed that the accused/appellant left her husband in the house and thereafter she saw the injuries over the head. As per Kheda Bai (PW-9, mother of the deceased), she also saw that the appellant reached her house along with the deceased, they applied water and oil, this is natural phenomenon as the deceased was injured. There is specific case that the deceased was taken by the appellant in the house in an injured condition, there is no suggestion that the deceased sustained injuries on account of falling on the floor; whereas, it is established that the homicidal death was due to injuries over head and neck. Therefore, the trial Court, in absence of any intention to cause death, rightly held the appellant guilty for the offence under Section 304 Part II of the IPC and moderately sentenced the appellant. Therefore, the trial Court, in absence of any intention to cause death, rightly held the appellant guilty for the offence under Section 304 Part II of the IPC and moderately sentenced the appellant. As such, there is no scope for any reduction or interference by this Court. Hence, the appeal may be dismissed. 9. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the parties. 10. In the present case, the deceased died on account of homicidal death possibly by head and neck injuries as stated by Doctor Gyanesh Kumar Choubey (PW-11). Homicidal death is not challenged or contradicted. Merely some possibility was suggested; possibility may not take place of probability and as per the report of Doctor Gyanesh Kumar Choubey (PW-11), the death was homicidal is sufficiently proved and the same has not been substantially disputed on behalf of the appellant; it is also established by the evidence of Doctor Gyanesh Kumar Choubey (PW-11), Indira Bai (PW-1), Heeralal (PW-4), Dukhawa (PW-6), Kheda Bai (PW-9) and autopsy report (Ex.-P/13) that the death was homicidal. 11. As regards the complicity of the appellant in crime in question, the conviction of the appellant is substantially based upon the evidence of Indira Bai (PW-1), Heeralal (PW-4), Dukhawa (PW-6) and Kheda Bai (PW-9). In the present case, nothing argued on behalf of the appellant regarding the incident happened one night prior to the present incident, upon minute examination, it goes to show that at previous night, the deceased entered into the house of the appellant which was deposed by Udayram (PW-3) that at about 8.00 p.m., wife of the appellant made a call that somebody entered into the house, thereafter, this witness went to the house of the appellant and he made Sugriv (the deceased) out from the house of the appellant. As per Mangala (PW-5) who was also not challenged in cross-examination like Udayram (PW-3), in whose house marriage was being held, father of Sugriv (the deceased)--Samaru was also present, the appellant started abusing to Samaru and told that his son is mentally ill and he does not take him in proper custody and he entered into his house. Also this fact found place in the FIR and merg intimation. Also this fact found place in the FIR and merg intimation. This Court is of the view that at previous night, the deceased entered into the house of the appellant which was objected by the appellant's wife and neighbours intervened and got him out from the appellant's house. Subsequently, in the same night, the appellant scolded, abused and gave threat to father of the deceased. 12. It is admitted on behalf of the appellant that the appellant had taken the deceased to his house. Even otherwise, by the evidence of Indira Bai (PW-1), Heeralal (PW-4), Dukhawa (PW-6), Kheda Bai (FW-9), it is proved that it was the appellant who came along with the deceased and went out from the house of the deceased. It is also important to note that both belong to the same community, but nobody instructed the appellant to search for the deceased and bring him back. The appellant was never entrusted with this job. It is admitted by the statement of the witnesses that the deceased was mentally ill, he was having treatment from Raipur, with his mental ailment, one cannot expect normal behavior if he used to enter into the house of the appellant. As per para 4 of statement of Indira Bai (PW-1), her husband never beat outsider people, it is not came in her examination-in-chief, this answer came in her cross-examination, it goes to show that the deceased was not violent. 13. It is argued that the FIR and the merg intimation are antedated. Upon entire reading of the FIR and the merg intimation and by statement of R.S. Pandey (PW-7), it is clear that R.S. Pandey (PW-7) had not been challenged or suggested that the FIR (Ex.-P/3) and the merg intimation (Ex.-P/4) are antedated; even upon perusal of the entire FIR and merg intimation, it goes to show that the incident took place in the morning at about 8.00 to 9.00 on 22-4-2000 and the deceased died at about 12.00 noon. The matter was reported to police of Police Station Arang at about 4.00 p.m. Village Mokhala is 10 kms. away from the police station. The dead body was sent for postmortem examination at about 12.00 noon on 23-4-2000. The dead body was received for postmortem at about 2.00 p.m. on 23-4-2000, these all go to show that the FIR and the merg intimation are not antedated. 14. away from the police station. The dead body was sent for postmortem examination at about 12.00 noon on 23-4-2000. The dead body was received for postmortem at about 2.00 p.m. on 23-4-2000, these all go to show that the FIR and the merg intimation are not antedated. 14. The deceased entered into the house of the appellant, the appellant had taken a serious objection, he scolded, abused and gave threat to the father of the deceased and next day morning, this incident happened, it goes to show that there was motive for the incident. It is argued that before the death, the deceased did not tell anything regarding the incident. For this, as he was mentally ill, both his wife and his mother saw the appellant taking the deceased upto the house in an injured condition, Heeralal (PW-4) and Dukhawa (PW-6) also saw at some point of time that the deceased was taken by the appellant, it all goes to show that these all persons since they know one or the other part of the incident and the deceased was mentally ill not in a position to state regarding the incident, non-disclosure of any fact by the deceased before his family members is not at all not expected from him in the present case and the same does not make any difference. 15. It is argued that there are different versions whether the appellant put the deceased over him or he followed the deceased. At about after 1 year of the incident, Court statements were recorded, the wife and the mother, both were labourer person, if at some point of time, the deceased was taken over by the appellant or followed by the appellant, may not make any difference and this is one and all admitted that it was the appellant who took the deceased to his house and thereafter he left the place. In presence of minor variations, prosecution's case not becomes false. Indira Bai (PW-1) noticed blood oozing from the bone of cheek. Heeralal (PW-4) has witnessed that before him the appellant assaulted twice or thrice on the leg and also told him to come home. This witness stopped in the pulliya (small bridge) for brushing the teeth, he only saw that the deceased was walking and the appellant was walking behind him taking a stick in his hand. Heeralal (PW-4) has witnessed that before him the appellant assaulted twice or thrice on the leg and also told him to come home. This witness stopped in the pulliya (small bridge) for brushing the teeth, he only saw that the deceased was walking and the appellant was walking behind him taking a stick in his hand. This witness also deposed that afterwards Dukhawa (PW-6) went to the village, this witness does saw that Dukhawa (PW-6) also followed the deceased till his house. During meantime, the deceased was in active control of the appellant; last night the deceased entered into the house of the appellant which was seriously objected and 2-3 assault by stick was already inflicted by the appellant as seen by Heeralal (PW-4). Now, it was for the appellant to explain from where the deceased sustained antemortem homicidal injuries over head and neck because the wife and the mother specifically denied the suggestion that afterwards the deceased sustained injuries in the process of attempt of further escape. Dukhawa (PW-6) also deposed that he and Heeralal (PW-4) met with Sugriv (the deceased) near the pulliya Chhano fall, he went to answer the call of nature by saying Heeralal (PW-4) to take Sugriv (the deceased) to his house, thereafter, when he reached in the house of Sugriv (the deceased), wife of the deceased informed him that the appellant came along with Sugriv (the deceased) and he left. This witness not saw the appellant, he only saw Sugriv (the deceased) in lying condition on cot having injuries over the hand and he was complaining pain, this also goes to show that as he had not followed Sugriv (the deceased), he may not know who assaulted Sugriv (the deceased). 16. It is argued much that the deceased received injuries when he attempted to run away again from the house. But, this suggestion is denied by the mother and the wife; there is no other evidence to support this suggestion and merely on the basis of suggestion, entire prosecution's story does not become false. On the other hand, the deceased was badly injured, he was not in a position to esc ape or walk from his house, thus, there was no possibility to sustain injury only because of fall. On the other hand, the deceased was badly injured, he was not in a position to esc ape or walk from his house, thus, there was no possibility to sustain injury only because of fall. The defence witness namely Bharatlal Chandrakar (DW-1) has stated on this line, but, looking to the entire evidence, this is afterthought and not admissible for leading to any conclusion that the deceased sustained injuries in attempt of escape. It is argued that being the nephew, the appellant had taken his uncle (the deceased) upto the house. This does not inspire confidence as the appellant on previous night made a dispute along with abuse with the father of the deceased and asked him to make control over his son, further it is not explained as to how after a few hours, without there being any instruction to the appellant, the appellant himself searched and took the deceased to his house; as per the evidence, it goes to show that when he saw the deceased who had entered into his house in his absence, because of this previous incident and anger, he beat the deceased. Initial part is seen by Heeralal (PW-4) that twice or thrice the appellant assaulted the deceased. It is argued that as per Dukhawa (PW-6), injuries were at hand and the deceased complained pain. This witness not stated that as to how he noticed the injuries over the 'hand because the Doctor noticed no any visible injury over the hand and as this witness was examined after 10 months of the incident, may be he is not in a position to recollect the part of the body where he saw the injury and also as per this witness, he reached to the house of the deceased afterwards, he had not followed the deceased by alibi, hence, he is not a witness of real incident. But, from the pulliya concerned, last seen and active control of the appellant was seen by Heeralal (PW-4); thereafter, the wife and the mother saw the appellant taking the deceased in an injured condition, meanwhile what happened, it is expected from the appellant to explain for which he failed to do so. It is argued that there was no blood stains over the shirt and pant of the appellant. It is argued that there was no blood stains over the shirt and pant of the appellant. As per evidence of Doctor Gyanesh Kumar Choubey (PW-11), there was no active bleeding, only abrasion over neck of 5 c.ms. x 2 c.ms. which was with stain of dried blood and dried blood stain over right ear, it goes to show that there was no active or profuse bleeding, therefore, there may not be a possibility for blood stains in the full-pant and shirt of the appellant. Since the deceased was mentally ill, he may not in a condition to assess and narrate the injuries and pain properly. It is argued that the stick was not sent for chemical analysis for the presence of blood. In the considered view of this Court, the prosecution proved its case on the basis of eye-witnesses and the circumstances, hence, this fact does not effect the case adversely. 17. As there was no intention to cause death and as the case of the appellant comes under Exception 4 of Section 300 of the IPC thereby the case against the appellant falls under the category of Section 299 of the IPC along with Exception 4 of Section 300 of the IPC and since there was no intention, the trial Court rightly convicted the appellant under Section 304 Part II of the IPC. There is no force in the argument that at the most act of the appellant comes under the ambit of Section 323 or Section 324 of the IPC as by sufficient medical evidence, death was homicidal, which was proved not as murder but as culpable homicide not amounting to murder without intention to cause death. 18. Upon considering the entire facts and in view of this Court that prosecution had proved its case against the appellant for the offence under Section 304 Part II of the IPC, there is no scope for any interference. So far as quantum of sentence awarded to the appellant is concerned, the trial Court awarded only 3 years' rigorous imprisonment with fine sentence which cannot be said as excessive or too harsh where a mentally challenged person was succumbed to death only on the ground that he entered into the house of his alleged nephew which was taken very seriously and the appellant assaulted many blows for that act of the deceased. Therefore, the order of sentence passed by the trial Court against the appellant also cannot be said as excessive, hence, even there is no scope for interference in the sentence awarded by the trial Court. Consequently, the appeal filed by the appellant is liable to be and is hereby dismissed. The judgment of conviction and order of sentence passed by the trial Court against the appellant under Section 304 Part II of the IPC are hereby affirmed. The appellant is reported to be on bail. His bail is cancelled. He is directed to surrender immediately before the trial Court. The trial Court is also directed to take appropriate steps for serving out the remainder of the sentence to the appellant imposed upon him. Appeal dismissed