HIGH COURT OF CHHATTISGARH AT BILA$PUR Criminal Appea} No.607/2003"” APPELLANTS (In jail) Gomial Samami, aged about 22 years, Sf o Sonsai Satuami 2. Sonsai Samami, aged about 52 years, S/o Puvi Ram Satnami. Both residents of villags Durug RS. Sarsinwa, district Raipur (CG) VERSUS State of Chhattisgarh Through : Station Inchaxge, RS. Sarsinwa,» District Raipur(CG) CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shn' Y.C. Shama, counsel for tho appellants. Shri Ashish Shukla, Government Advocate for the State. ~i RESPONDE‘NT Division Bench:— Hon’ble Shri T.P. Shanna as Hon’ble Shri R.L.Jhamvar,J-I ORAL JUDGMENT (11022010) Per T.P.Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 09.042003, passed by the First Additional Sessions Judge, Baloda Bazar (CG) in Sessions Trial No.464/ 2002, whereby and wheieunder the lealned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide, amounting to murder of son of appellant No.2— Sonsai and brother of appellant No.1—Gorelal namely' Kalashram (since ideceased) in sharing common intention and concealing the ievidence of the criminal case, convicted appellant No. l-Gorelal under Sections 302 and. 201 of the IPC and appellant No.2- Sonsai under Sections 302/34 and 201 of the IPC and sentenced to ay a fine of Rs.1,000/- and ‘i undergo imprisonment for life and to p RJ. for 3 years and to pay a fine of Rs.500/ -, in default of payment of tine to further undergo R‘I. 1 year and 6 months respectively to each of the appellant. a 2. f The judgment impugned is challenged on the ground that without any iota of evidence, the learned Court below has cohvicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. Prosecution case in brief is that in the intervening night of 23rd and 24th of August, 2002, the deceased—Kalashram came to house and demanded money from his mother for consuming liquor. His mother provided Rs.100/ - for liquor. After some time, Kalashram again came and demanded Rs.2000/- from appellant “ix j No.2—Sonsai, who.refused to give money, on which, Kalashram assaulted Sonsai. Sonsai called his son i.e. appellant No. 1— Gorelal to save him. Gorelal came to save his father and quarrel took place between Gorelal and the deceased-Kalashram. Gorelal caught hold of the neck of Kalashram and pressed his neck, as a result of which, Kalashram died on the spot. Both the appellants with intent to conceal the evidence of criminal case, took out the dead body from their house and kept it near Jait Khamb in the village. Finally merg was recorded vide EX. P/11. F.I.R. was lodged vide Ex. P/ 19. After summoning witnesses vide Ex. P/3, inquest over the dead body of Kalashram was prepared Vide EX. Pf4. Dead body was sent for autopsy to Government Hospital, Bilaigarh vide Ex. P/9. Autopsy was conducted by Dr.Narayan Singh {PW-8) vide Ex. P/8 and found injury over the neck including fracture of nsck hyoid bone cartilage and thyroid and death was homicidal in nature. Statement ofwife of fhe deceased was recorded under Section 164 ofthe Code of Criminal Procedure, 1973 (in short “the Code”) as EX. P/ 1. Spot map was prepared vide Ex. P/2. Sealed clothes of the deceased were seized vide Ex. P16, Injured— Gorelal was also sent for medical examinan‘on. He was examined by Dr. B. Chourasiya (PW—7) vide Ex. P/7 and found 2 abrasions over left knee and right knee. Statements of the u twitnesses were recorded under Section 161 of the Code. 4. After completion of investigation, charge sheet was med hefore theaJudicial Magistrate First Class, Baloda Bazar, who in turn, committed the case to the Court of Sessions, Raipur, from where the learned First Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants, prosecution has examined as many as 13 Witnesses. The accused] appellants were examined under Section 313 of the Code, in which, they denied the circumstances appearing againstthem and pleaded innocence and false implication. 6,. After aifording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced l the appellants as aforementioned. J 7. We have heard Shri Y.C.Sharma, learned counsel for the appellants and Shri Ashish Shukla, learned Government Advocate for the State, perused the judgment and record ofthe trial Court. l 8. Learned counsel for the appellants vehemently argued that the conviction of the appellants is based on the evidence of solitary eye—witness Kamlabai (PW— 1) wife of the deceased. According to her evidence and the evidence collected on behalf of the "« 9. On the other hand, learned counsel for the State opposed these argumants and submitted that prosecution has proved its case beyqnd reasonable doubt. 10. In oxder to appreciate the arguments advanced on behalf of the parties, We have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of injury over the neck of the deceased has not been substantially disputed by the appellants. On the other hand, it is established By the evidence of Dr. Narayan Singh (PW-8) and Autopsy report Ex. P/ 8, which revealed that the deceased~ Kalashram died as a result of fatal injury over the neck and death was homicidal in nature. prosecution, the deceased demanded Rs.2000/~ from appellant No.2— Sonsai (father of the deceased) and when he refused to give money, the deceased, assaulted Sonsai. On this, Sonsai called appellant No. 1-Gorelal for his help and when Gorelal came to help his father—Sonsai, the deceased also assaulted Gorelal then Gorelal caused the aforesaid injuries to the deceased. Both the appellants have caused injuries to the deceased in exercise of their right of private defence of the person, which was available to them. They have not exceeded the right of their private defence and even otheiwise the evidence collected on hehalf of the prosecution clearly reveals that when the deceased assaulted his father i.e. éonsaj and brother Gorelal then without premeditation, in sudden fight in a heat of passion, they have caused the aforesaid injuries to the deceased, which clearly falls under the fourth exception of Section 300 of the IPC and the act of the appellants does not travel beyond the scope of Section 304 Part II of the IPC. Learned counsel further argued that the custodial period of the appellants would be the sufhcient sentence for the aforesaid odence. 12. As regards complicity of the accused] appellants in crime in question is concerned, ovideuce of Kamalabai (PW-1) has been corroborated bf'her previous statement Ex. P/ 1 recorded under Section 164 of the Code, which clearly reveals that after taking money from his mother, the deceased-Kalashram purchased liquor and consumed the liquor. He again demanded money from his father i.e. appellant No.2- Sonsai and when Sonsai refused to give money, he assaulted him then Sonsai called appellant No.1- Gorelal for help and when Gorelal came to help his father, the deceased also assaulted Gorelal Gorelal has also received mJuries and he was examined by Dr. B. Chouras1ya (PW—7) v1de EXP/7. When the deceased assaulted Gorelal then Gorelal caught hold of the neck of the deceased and pressed his neck, as a result of which, the deceased died. It clearly shovvs that appellant No.1— Gorelal has caused the fatal injury Without premeditation in sudden tight, in a heat of passion; he has not taken any undue advantage or has not acted in a cruel or unusual manner. The act of appellant No. 1— Gorelal falls under Section 304 Part II of the IPC and act of appellant No.2—Sonsai who has committed the oh'ence in sharing common intention also falls under Section 304 Part 11 of the IPC. After causing death of the deceased, they took out the i dead body hem 'their house and kept near Jait Khamb in the village to conceal the evidence ofcriminal case. u 13. After appreciating the evidence available on record, the learned First Additional Sessions Judge has convicted appellant No. 1-Gorelal under Sections 302 and 201 of the IPC andappellant No.2—Sonsai under Sections 302/34 and 201 of the IPC. _ The conviction and sentence of the appellants under Section 201 of the IPC is sustainable under the law, but conviction and sentence of ‘the appellants for causing murder of the deceased is not \ sustainable under law and it requires reconsideration. The act of (£é the appellants does, not travel beyond the scoe of Section 304 Part II ofthe IPC. 14. Consequently, the appeal is partly allowed. Conviction and sentence of the appellants under Sech'on 201 of the [PC is hereby maintained and conviction and sentence applant No. 1— Gorelal under Section 02 'of the {PC is altered into ction 304 Part II of the IPC. Likewise, the conviction and sentenc of appellant No.2— u {Sonsai under Section 302/ 34 of the IPC is also altered into Section 304' Pait II of the IPC. The appellants are sentenced for imprisont of custodial period, which they have already sun‘ered gnd fine of Rs.1000/ - and in default of payent of fine additional R.I. for 1 year. Appellant No. 1—Gorelal is in stody ince 18.9.2002 till today and appellant No.2- Sonsai s in custody since 20.9.2002 till today. ’l‘hey be released forthwith, if not required i any other case. — R.L. Jhanwr a Judge Sd/- T.P. Sharma Juge d Wwmnm<:. p of el 3 Se e nme m cu s i n Sd/