HIGH COURT OF CHHATTISGARH AT BILASPU Cr. A. . 577/2007 APPELLANT Rajuram ACCUSED (In Jan) RESPONDENT VERSUS State of Chhattisgarh Post for pronouncement of order on 31 /8/2009. dl- T.P.SharmaJ Judge E k 17w200§ R No S l; 5# HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ Cr. A. No. 577/2007 ‘ ‘ ,RIMINAL APPEAL UNDER SECTION 374 12! OF THE CODE OF RIMINAL PROCEDURE ' (SB Hon’ble Mr T P Sharma, J) Presontz- Shri Ravindra Kumar Agrawal, Advocate f0: the appellant. Shri Sanjeev Kumar Agrawal, P.L. for the State/respondent. JUDGMENT ‘ (Passed on 31 /8/2009) r Th1s Crlmlnal Appeal 1s drrected agamst the Judgment of convrctron and order of sentence dated 13 06 2007 passed by the Learned Sess1ons Judge RaJnandgaon 1n Sessmns trral No 24/2007 whereby and where under leamed Sess1ons Judge after holdlng the appellant gu1lty for the offence punlshable under Sectlon 304 Part—II of the Indlan Penal Code sentenced the appellant rrgorous 1mprlsonment for 7 years and flne of Rs. 500/— in default simple imprlsonment for 3 months. Judgment of conviction and order of sentence is challenged on the ground that W1thout any reliable and clinchlng ev1dence learned Sessrons Judge has conv1cted and sentenced the appellant aforementloned and thereby committed an lllegahty 3. The prosecution case in brief '— On 04 12 2006 at about 7:00 am. at Village Sarkheda Dlstrlct RaJnandgaon accused who is nephew of deceased Agmbar was usxng filthy language near the house of deceased She res1sted him then accused g ‘-' came near the deceased and after taklng burning wooden peace assaulted over the temporal-region of the deceased. She fell down and become unconsolous. Her C C APPELLANT Rajuram, S/o Goverdhan Lal Halba, 34 ACCUSED years, R/o Village Sarkheda, Police Station-l (In Jail) I ‘ Aundhi Distt. Rajnandgaon (C.G.) VERSUS RESPONDENT, State of Chhattlsgarh Through the Dlstrlct ‘ ‘ - Maglstrate RaJnandgaon daughter Muktibai and other persons immediately took the her to the Police ' Station Where PW-Z Ku. Muktibai lodged First Information Report vide (P-4). Deceased was sent for medical examination vide (P-2A). She was examined by PW—9 DrTHemant Kuinar Arya vide (P—l2) and found swelling over the left side of the head. She was unconscious, she was immediately referred to District Hospital, Rajnandgaon Where she was admitted for treatment. During course-of treatment at about 4:50 p.mi she died. Her Bed-head is ticket Ex. P-16. Death was intimated to Police Station, Basantpur yide (P—7). Marg intimation was registered vide (P—6) by Police Station, Basantpur. On the basis of (P-6) Marg, (P-lS) was recorded by Police Station, Aundhi. After summoning the witness enquest over the dead body was prepared vide (P—2). Dead body was sent for L Autopsy vide (P-l 1A). Autopsy was conducted by PW-8 Dr. Rajesh Sadani vide( P-l l). Her left temporal bone was foundifracture and blood was present under the brain membrane, cause of death was as a reSult of head injury. Spot map was prepared vide (P-S). Patwari also prepared map vide (P-8). One burnt peace of ood was recovered'from the accused vide (P—9). Accused Was arrested vide (P- 10). Burnt peace of wood was sent for examination vide (P-l3A). Statement of the witnesses were reCorded under Section 161 of the Code of Criminal Procedure, 1973 (In short “the code”). Afte‘ncompletion’ of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Ambagarh .Chowki who in tum conunitted the case to the learned Sessions Judge, Rajnandgaon. In order to prove the guilt of the accused prosecution examined as well as 14 witnesses, examination of the accused conducted under Section 3 13 of the code where he denied‘the circumstances appearing against him innocency and false z w "3 implication is claimed. After affording the opportunity of hearing to the parties Learned Sessions Judge convicted and sentenced the appellant as aforementioned. Learned counsel for the parties are heard and judgment impugned and record of Courts below perused. Learned counsel for the appellant argued that in the light of the evidence adduced on behalf of the prosecution he is not substantially disputing the conviction of the appellant but he want to argue on sentence. Learned counsel for the appellant further submits that according to the case Of prosecution present appellant was using filthy language to some persons but not to deceased, when it was objected by the deceased then on sudden provocation he took out the burnt peace of wood which was present on the spot and caused one injury to the deceased, deceased died as a result of one injury. Accused has not inflected any injury with intent to commit murder or with knowledge of causing such death. Present appellant is in custody since 04.12.2006 and completed more than 2 1/2 years. Therefore, reduction in sentence would be necessary for the ends of justice. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that appellant has caused the death of armless women who has simply opposed him for using filthy language does not deserves any sympathy. In order to appreciate the contention of the parties, I have examined the evidence adduced on behalf of the prosecution and injuries of the deceased and complicity of the appellant with crime in question has not been disputed by the appellant otherwise established evidence of PW-2 Ku. Muktibai, eye witness PW-3 Smt. Nagina Bai, eye witness PW-4 Virjhuram, who has seen the accused who was xy/ going from the place of incident. After commission of the offence promptly rt vide (P—4). PW—8 Dr. Rajesh Sadani, PW-9 Hemant Kurnar Arya, PW-l4 R.R.Mandele, who has examined the injured and 7), (P—lS), Bed-head ticket (P—16), Medical report (P—12), Autopsy report (P-ll) that appellant is a person who has caused o the deceased and as a result of such injury she died within 12 hours after incident. e on record learned Sessions Judge has 9. fter appreciating the evidence availabl convicted the appellant under Section 304 Part-II of the Indian Penal Code, conviction of the appellant is based on clinching and cre sustainable under the law. As regard the question of sentence is concerned according to the case of at village sing filthy language to other person when it was objected by the deceased then suddenly he took out burnt ace of wood and caused singal injury. The deceased fell down and lastly she died. The entire episode showsthat appellant who is nephew of the deceased was the deceased. He was not having any weapon or stick at the time of incident. His act was objected~by the deceased then suddenly he took out the burning peace of wood and caused single injury, after causing or has not attempted for repeated injury. injury he has not caused repeated injury This shows that he has not intentionally caused the injury to the deceased, but the object, the'burnt peace of wood used by the appellant and p injured shows that he was having knowledge of fact that as a result of injury, lodged First Information Repo their body. Marg intimation (P-6) , (P— fatal injury t dible evidence prosecution appellant is nephew of the deceased both are residing Sarkheda. At the time of incident appellant was u p6 not using filthy language to art of the body deceased may die. A / “J_. In case of Kashiram and others Vs. State of Rajasthan the sentehce of rigorous imprisonment for 5 years uhder Section 304 Part II read with Section 149 of the Indian Penal Code has been approved by the Apex Court in which four injuries coupled with the fracture was found over the body of the deceased. Taking into consideration the above circumstances, single injury and sentence approved in case of Kashiram (Supra), the appeal is partly allowed. Judgment is partly modified. Conviction of the appellant is hereby maintained and sentence of rigorous imprisonment for 7 years and fme of Rs. 500/- is reduced to rigorous imprisonment for 5 years and fine of Rs. 500/- in default additional rigorous lmpflsonmen ‘ ' tf0r 3 11’101’1th. S W‘s sdl_ .\ T. P. Sharma‘rf Judge l it