A-^'^ 2 ilab Sahu, S/o Ramlal Aged about 23 years, R/o Bhilal, PS Bemetara Dist Durg (CG) Smt Mithiiesh Sahu, W/o Rohit Kumar, R/o Bhiiai, PS Bemitara DistDurg(CG) . ; State of Chhattisgarh through Semitara Dist Durg (CG) Appeal under Section 374 i2) of the Code of Crimina! Procedure 1973 Shri NS Dhurandtiar, counsel for the appellants. Shri Ashish ShuKta, Govemment Advocate for the State. ith The following judgment of the Court was passed.l by Appellants Gulab Sahu and Smt Mithilesh Sahu sland , i convicted under Section302 read with Section 34 ofthe IPCivrfith i'j'. sentences of Imprisonment for life and fine of Rs.1,000/-[ij|icle jli- impugned judgment dated 02.05.2003, passed by the Adciitl^nat Sessions Judge, Bemetara, Dist Durg \ in Sessfops N0.318/^)02. . - Tiriat ^^ 2) Appellants Gulab Sahu and Smt Mithilesh Sahu have been found guilty of causing those injuries on Smt Mungabai on 02.08.2002 which resulted In her death on 30.08.2002. 3) The prosecution case as disclosed by deceased Mungabai in her Dying Declaration (Ex.P/14) is that appe!lant No.2 Smt. IVIithilesh Sahu, daughter-in-law of deceased Munaabai and wife of PVtf/3 Rohit Kumar developed illlcit reiationship with appellant No.1 Gulab Sahu which was deprecated by deceased Mungabai time and again. In this background, the appellants on 02.08.2002 when deceased Mungabai was busy in worshipping, cauaht hold of her and appellant Gulab Sahu tried to press her neck. Deceased Munaabai resisted and tried'to save herself. In the process her head struck with the wooden plank ofthe cot which was lying there, as a resuit whereof she sustained injury on her head region which ultimately proved fatal. 4) Shri NS Dhurandhar, learned counsel for the appellants did not dispute the homicidal nature of death of. deceased Mungabai. Learned counsel howev^r contended that the appellants' conviction under Section 302 read with-Section 34 of the IPCSas recorcied by the trial Court is not iegally sustainable as even according to the prosecution case, the injury on the head regidnj of the deceased was not caused by any of the two appellants and| the injury which deceased Mungabai sustained ori 02.08.2002 result^d in her dsath after 28 days on 30.08.2002. Learned counsel fur^Her submitted that the offence against the appellants, at the' rriost, would be one of culpable homicide, not amounting to munder ^nd^ I 1 1; i ^e- > ^ ] ; 1 !l i would be punishable under Section 304 part II of the tPC only. Learned counsel further submitted that appellants Guiab Sahu and Smt Mithilesh Sahu have been in custody for a period of more than six years. 5) Shri Ashish Shukia, learned Government Advocate for the State, on the other hand, supported the judgment of the trial Court and contended that the convictjon of the appeliants under Section 302 read with Section 34 of the IPC is weii founded and does not call for any interference in this appeal. | 6) The appellants' conviction is founded on Dying Declaration (Ex.P/14) ofdeceased Mungabai recorded in the form of hercase diary statement by the pollce; and the evidence of PW/1 ;Shiv Prasad Sahu, PW/2 Mohan Sahu, PW/3 .Rohit Kumar, RW/4 ialdau Prasad, PW/5 Tilku @ Tilakram and PW/6 Smt Pushpabai about the oral dying dectaration of deceased IVIungabai to the effect that appellants Gulab Sahu and Smt Mithilesh Sahu were responsible for her death.. .. • | 7) Deceased Mungabai sustained the injuries as detailed injher injury report (Ex.P/6) on 02.08.2002 is borne out from her d^ing declaration (Ex.P/14) recorded in the form of the diary statep^ bv the. Police and the evidence of RA//1 Shiv Prasad Sahu. RW/2 ;Mohan Sahu, PVW3 Rohit Kumar, PW/4 Baldau Prasad, PW% II @ Tilakram and PW/6 Smt Pushpabai about her oral^ declaration. We, therefore, affirm the findinai recorded b^ tBjeit Court that deceased Mungabai died on account of the sustained by her in the inclcient on 02.08.2002]. iheiad "91 'lal 1 .ii I; :i 11 r'"^l 'l^ ^ 8} The next question, which crops up for our conslderation is about She nature of the offence proved against appellants Gulab Sahu and Smt Mithilesh Sahu. 9) Deceased Mungabai sustained injuries on 02.08.2002; s.he was admitted in the hospital on 03.08.2002; she was discharged from the hospitai on 06.08.2002; she was again admitted in the hospital on 21.08.2002; she died during the course of her treatmsnt in the hospita! on 30.08.2002. The Autopsy Surgeon PW/13 Neeraj Sindhey, .on postmortem examination opined that sabai died on account of the shock due to head injury. In her initial medica! examination by PW/8 Dr NK Tiwari, two contusions and one abrasion were found, as detailed in her injur/ report Ex.P/6. in her X-ray examination, no fracture corresponding to the head injury was detected. The Autopsy Surgeon in response to the query from the police vide Ex.P/15 further opined that the death Qccurred due to Haemafoma corresponding to the head injury. 10) From the prosecution case itseif it is apparent that appellants Gulab Sahu and Smt Mithilesh Sahu are not directly responsible for the fatal injury on the head region of the deceased. In view of the above fact and the gap of about 28 days in between tMe incident on 02.08.2002 and her death on 30.08.2002, we find: difficuit to hold with any amount of certainty;that the appellants while catching hold of the deceased by her neck had intended|to cause the said injury on her head reglon which she sustain^d accidenta!ly and ultimateiy proved fatal. Thus, we have J' >f ! 1 !ii •^ hesitation in holding that the appellants' convictlon under Section read with Section 34 of the IPC as recorded by the trial Court can not legaliy be sustained. 11) Nevertheless, the appellants can not escape from their llability altogether. The appellants well can be imputed with the knowledge that whiie they were catching hold the deceased by her neck she mightsustain the injury, which she actually sustained in the present case on her head region. Thus, the appeilants'above act would certainly amount to culpable homicic<e not amountina to murder and in the facts and circumstances of the present case wouid be punishable under Section 304 part II ofthe IPC. 12) As for the sentence, both the appettants are reported to be in custody for the last more than six years since their conviction'by the tria! Court vlde impu.qned judament dated 02.05.2003. We gre, therefore, of the opinion that custodial sentence of six years would be sufficient punishment for the offence proved against the appellants under Sectioh 304 part II read with Section 34 of the IPC and would meet the ends ofjustice. 13) For the foregoing reasons, the appeai fited by theappellants against their conviction and sentences is allowed in part. |Tjhej| apDellants' conviction under Section 302 read with Sectlon 34 IPC and sentences of imprisonment for life and fin^ Rs.1,000/- awarded by the trial Court are hereby set a^i Instead appellants Gulab Sahu and Smt Mithilesh Sahi.). convicted under Section 304 part li read with SectiQn 3|4j|of| :<}fi .A^ IPC and are sentenced to Rigorous Imprisonment for six years each. 14) Appetiants Gulab Sahu and Smt Mithilesh Sahu are in custody. tf they are found to have already undergone the whole of the sentence of Rigorous Imprisonment for six years, now awarded, they be set at liberty forthwith, if not wanted in connecfion with any other case. _^^~--~~—'~~'—- I; Sd/- 1 /Sunil Kumar Sinha 1 : Judge Sd/- Chief Justice subbu itl