^ HIOH CODRT OF CHHATHSeARH AT BIL^MPUR Griminal Anpeal No.668/2004 APPBLLABrrS lajail 2 Kaishav Prasad s/o Suadertel Kawarth, agcd about 27 years Ashok Kumar s/o Siyaraiu Adi^ra, aged about 27 ycars,^^^^^^^^^^^^^^^ „ Bofh resident of vS\a%e Sheormatayan, '' 'i:~' ^''^•••"'TbsmSL^ Sheoriaaiayaa, District Jaajgir Champa(CO) VBRSUS RBSPONDBNT State of Chhattisgarh Thsaugh Police Statfon , Sheormai^&a ;| District tJaitjgirChampa ; ; APPEAL V/6 374 (21 OF THE CX>DE OF CWMINAL PROCBDURE Appearance: Shri Yogeshwar Sharma, coiiasel for fhe appeBaats. Shri Ashish Shukla, Ctoverament Advocate for fhc Stote. ; Divlsion Bench:- Hoa^le Stei T.P. Sliwmate Hon'ble Sltrt R.L.JhaawWiJJ ORALJUOGMBMT Per T.P.Sha-ma, J. (06.10.2010) 1. Challenge iu fhls appeal is to fte judgment of convtctioa and order of sentence dated 31.7.2004, passed by the Seeoad Additioiial Sessions Judge, Janjgir, Sessions Divfeion Bilaspua" (CG) in S.T.Nol23/2004, whereby and whereunder, flie teamed Additional Sessions Judge, after holdiag the appeMants geaMy for conuuission for culpable homicide aiaounting to muider of Balkrishna @ Dasraaiaad causing simple injuiy to Koshal Prasad- in sltaring cominon intention, convicted the appeUants uader Section 302/34 and 323/34 of tihe IPC aud sentenced to uiffldergo :iiiliiijf aBii 8 ti^j as» 11 :wi'*s^y ISRItiB^ iir'iii imprisdiunent for life and to pay a fiae of Rs. lOO/-; and R.l. for 1 year respectivety to each of tiie appeBant. The scntenoes were directed to run concurreaffy. 2. Thc conviction is impugaed on fhe groiuid fhat without aay? iota of ewidence, ihe learaed Additioual Scssions Judge has convicted and sentenced llie appeUaats as aforeiuentioned and fhereby coininitted illegality. 3. As per case of prosecution, on fateful day of Cheichara on 7.1.2004, both the appeBaats consumed Mquor, fbsy were aa.oviag around tfae house of fhe deceased; they abused BaUa-tehna @ Dasram. iu filthy laagu^e. When fhe deceased objected feey quarreled wifh. Batkrishna @ Dasrain and went away. After soiuc time, fhey coine back, hoUing stick and again started abusing aad assaulted BaBaishiia @ Dasram over bis head; Balkrishna @ Dasram fell down. Krishna Bai (PW-4), sister of fhc decfeased was present on fhe spot. She made hue and ciy tfaen his brottier Koshal came out fiTOin the house; the appeUaats also assaulted Koshal. Krishna Bal (PW-4) lodged PIR vide Ex.P/5. Thereafter, Balkrishna @ Dasram. and Koshal were taken to bospitri fw tceatment. Bpth were examined by Dr. K.K. Thsmait (PW-16) vide Ex. P/ 20, who foxmd following injuries on fhc body of Koshal Prasad: i. SweUing of6 x 4 cm. over left ann ii. Abrasion of 2 x 2 cin over left finger He exaxmned BaBcrishna vide Bx. P/ 21 and Botieed foUowmi symptoins and iajuries on fbc body ofBalkrishna: • i. He was unconscious aad was in gaspiag condition. ii. Lacerated woitad of5x Vz x Va cin was foDd over fhe back. He was admitted ia hospital for further treatment, where hc died on 31.1.2004. Deafh was intimated vide Ex. P/17. On the basis of Ex. P/17, merg was recorded vide Ex. P/22. ABter summonmg VF wyy. x witaesses vide Ex. P/3, inquest over the dead body was prepared vide Ex. P/2. Dead body was sent for autopsy to CIMS hospital, Bflaspur. Dr. A.P. Rai, (PW-7) conducted autopsy vide Bx. P/15 and found foBowing iujuries: i. One stitched wouad ovcr lefit parietal region of 5 cm loag ii. Aaofher stitched wound of 2 cm. long near the first injury. iu. Fracture ofbone below tfae iajiiiy was found. Mode of deafh was coma. Accused persons weic taken iato custody. Accused Kaishav made dteclosure stateiuent ofstick vide Ex. P/12; saiae was recovered at hfe instance vide Ex. P/9. Accused Ashok Kzuaar inade disctosure statement ofwooden plaak vide Ex. P/13 and fhat was recovered at his iastance vidc Ex. P/11. Btood staincd and plaia. soil was recovered fi?oin fhe spot vide Ex. P/10. Patwari prepared spot map wide Ex. P/7. Sealed clothes of the dece^ed were seized vide Ex. Pf 1. Seized ardcles were sent for chetnical exanunation. Presence of blood was found on fhe stick seized from. the appeUant Kalshav. Statements of fhe wituesses were recorded uader Section 161 ofthe Code of Crimiaal Piwcedure, 1973 (in short fhe Code). 4. After coxnpletion of iavestigation, chai^e sheet was filfid before the Judicial Magistrate Firat Class, Janjgir, who m tura, coitunitted fhe case to fhe Court ofSessions, Bflaspur, &om where, fhe leamed Additk)nal Sessions Judge received. the case on traasfer for trial. 5, In order to prove fhe guilt of the accuscd/appeUants, prosecution has examined as niany as 16 witnesses. Accused/ appeUants were exaaiined uiider Section 313 of the Code; where they denied the circumstaaces appcaring against ttieni, mnocence and false unpUcation in crime ia question was claimed. 6. After affording opportunlty of heariug to the parties, learaed Additional Sessions Judge has convicted and sentenGed fhe appellaats as aforeinentioned. 7. We have heard Shri Yogeshwar Sharma, learaed cpuasel for fhe appellants aud Sbri Ashish Shiikla, leamed Govemineat Advocate for the State, judgment impugaed and rccord of the Court below perused. 8. Leamed couusel for the appeBaats vehemenCLy argued that tfae conviction. is based on the evidence of Nanhu Yadav (PW-2), Krishna Bai (PW-4), sister ot'fhc deceased an.d Koshal Prasad (PW- 5) broth.er of the deceased, which is full of contradictions aud omissions aad does aot find support to fhe FIR. As per opiBlon of fhe Doctor, iajury vaay be caused by heavy object Deceased was ia gaspiag condition; he feU down aad received in.jiuy, evcn ofherwise only one iajuiy was foimd aad deceased died as a result oflaclc oftreatment. Therefore, the act offhe appcUaals does-not travel beyond fhe scope ofSection 304 part II oftheIPC. He placed reUance on SKW3 (2) CCSC 636, Stata ofSS.P. Vs. Bnlu R<wt eiwd tinother, in which, uyzuy found over fhe body of fhe appellaitt is not explained by the prosecution thcn it is iuferred fhat the appeUaat has not caused aay iajury with niotwe to cominit inurder of fhe deceased. He also placed reliance on AIR 1994 SC 34, Joseph y. State tif Xenda, va- which, the Apex Coiut has held fhat on a trivial iiicident, deatb caiised by the' weapon stick blows by the accused, fhe weapon used is not a deadly weapon. In the circumstaaces, it caunot be'said ffaat ttte accused intended to cause fhe death by mflictuig that partieular injury wbich otojectively was proved by fhe inedksal evidcnce to be sufficient ia the ordinaiy course of nature to cause death, conviction ofthe appellant is altered into Sectioa 304 part H of the IPC, B] '!'[H ?.! .!?R!a 1 ?'3t1 R?"]IirrigT; .T^'-'Ey. 9. On the ofher hand, learued couasel for the State opposed the arguiaents and submitted that although as per medical evideace one iujuiy was found over fhe head of the deceased, but only on the basis ofsingle blow, conviction ofthe appctlant is not Uable to be altered into Section 304 part II ofthe IPC. He placed reliance on (20001 I SCC 319, Saahesh Batedfci otias Munna rs. State of SS.P, in which, the Apex Court has held that in case of single blow with knife, resulted iato death, convictioa of t&e appellant iMider Section 302 IPC was justified. 10. ln order to appreciate arguinents advanced on behalfoffhe parties, we have examined the evideace adduced on behalf of thc prosecution. 11. In fhe present case, hoiiucidal deafh as a result of fatal iajuiy found over fhe faead of fhe deceascd Iias not been substaatiaUy disputed oa befaalf of the appeUants, on fhe other haad, it is establishcd by fhe evidence ofDr. K.K. Thawait (PW-16) aad uijury report Ex. P/21, evidence of Dr. A.P. Rai (PW-7) and autopsy report Ex.P/15 aad death was hoiaicidal io. nature. ; 12. As regards fhe compUcity offhe accused/appeUants in erime in question is concemed, the conviction is substaatially based oa the cvidence of Nanhu Yadav (PW-2), Krishna Bai (PW-4), sister of the deceased aad Koshal Prasad (PW-5) brother of fhe deceased, eye witnesses. As pcr cvidence of Krishna Bai (PW-4) both tiie appeUaats were in drunken condition and they were abusu^ and using filthy laaguage in front of her house and when deceased Balknshna @ Dasram objected, fhe appeUauts quarrelcd wifh hini and went away; after some time they agam coine aad caught hold of Batkrishna @ Dasram. Her brofher Koshal Prasad caiae to rescue BaUa-istma, but the appellaats also assaulted hiin. The appeBant Ashok asked Balkrisluia to takc Uquor and when he niUiUU,,i*,,,i»,,iyit,, deiiied, Ashok assaulted hhn with the bottle of Uquor over bis head. Ashok was holdiag the botfle of liquor for a long ttaie.' Thereafter fhe appellauts went away aud after some time fhey come back witti stick and assaulted BaBa-Khna @ DasKun ovcr hte chcst by the stick. Balkrislma @ Dasram. shoiited for help then Mohit and Nahnu came to save him, On heariag her sound, his brofher Koshal also came to intervene, but fhe appeUaats assaulted hira. Thereafter, they went to PoUce Slation and lodged PIR vide Ex. P/5, Koshal Prasad (PW-5) brother of fhe deceased has substaatially corroborated tfae effidence ofKrishna Bai (PW-4). Nanhu (PW-2) has also substaatiatly corroborated the evidence ®f Krislma Bai (PW-4). 13. Defiiutely, there are contradictious and omissiona in fhe statements ofthe \vituesses relating to use ofbottle ofUquor and dispute for long tune aad version of FVR, whfch was lodged by Krtehna Bai (PW-4). Krishiia Bai (PW-4) has deposed in detaBed that both fhe appcUaats were quarrelmg for king time •wittt hu torofber, Whcn fhey askcd her brother for takiag liquor, they weres, in intoxication condition. They were coining ia the way of fhe house of Balkrislma. Alfhough, Krfahna Bai (PW-4), and Koshal Prasad (PW-5) are fhe sister aad brofher of deceased- Balkrishiia, but their evidence cannot be discarded onfy on fhe ground Itiat fhey are fhe relatives of ffaie deces^ed. Even ofherwise, presence of fhe relatives of the deceased on the spot is but natuial aad-thcy are the best witnesses to grab tb.e real culprit. This evidence 1s sufficient for drawing in iuference tfaat fh.e present appellants have assaulted Balferishna@ Dasram and hisbtother Koshal Prasad. - 14. As regards niotwe for conuaission of fhe offence af culgaiilfi homicide amountmg to inurder is conceraed, defiiutety, iu case of siugle blow as is held m case of StatB ofSS.P. Vs. ICalu Kctntcwd. anotSt.er. 2003 12) CCSC 636 (supra), conviction is not always f- sustainable under section. 302 of fhe IPC. The Court is reqiiifed to consider fhe circutastances ia which ttie offence has been committed. In case ofMdhesh BdtmUei attfis JBwnna Vs. Stiasts of aSP (2000) 1 SCC 319 (supra), smgle kaife blow was given on the chest offhe deceased aad 2 ribs were found fractured aad iatenaal' parts were badfy eflfected; totat depth of the wound was 19 cin,- consideriag fhe gravity of the single blow aud injury on fhe basis of single blow, the Apex Court has held tbat connction of the appeUaut under Section 324 IPC was justifiable. 15. In the present case, both the appeUants were in iatoxioatton condition; they were moving around the houseofdeceased withoiit any reason; they were abusing and using ffltfay language aad when the deceased objected it, then they quarreled wittt tuin. PBstty, fhey cam.e near the plaee of iacident and thereafter they assaulted Balkrishna @ Dasram and when he feU down, they havc not caused any iajuiy to Balkrishna @ Dasram. Thls shows that tbe appeUaats have not caused aay iujiuy to fhe deceased with au iatention to cause his death. However, while caustng fhe iajury over tfa.e head, defirutefy, fhey were haviag knowtedge of the fact ' fbat by fheir act, fhey may causc deafh of BaUsrishna @ Dastaau. 16. In the present case, fhe coiaplainant parly has not assaidtted the appellants, therefore as is held in the matter ofState ofM.I'. Vs. Kalu Kam. <wd twiuther, 2003 f2f CCSC 636 (supt^ m > t absence of aay fetal mjuty to fhe appellants, prosecuticm was under obl^ation to explam tbe mjuries on ttie appeUants. As is beld in fhe matter ofJoseph Vs. State of Kenda. AER 19948C 34 (supra) on a trivial iacident quarrel took place between 2 pardes a&d accused dealt two blows on the head with a fathi, resulted iuto death offhe deccased, convfction under Sectioa 304 part II was fouiid appropriate, / V. IHIBi "^i'^^^^^ iffSSIR 17. In Uic prescnt case, ia abseuce ofany intention; considering ttie iiatiire of injiuies and gravily, especiattjr opinion of the Doetor fhat ia case of appiopriate treatment, fhe dcceased would liawe sumved, convfction of the appeBaats iiuder Secdon 302 ofthe IPC is not just and proper and the act of fhe appellants does not teavel beyond Section 304 Part II offhe IPC. Whfle convksting and senteucing fhe appeUants, fhe leamed Additional Sessions Judge has not considered fhe aforesaid aspect of the case and thereby committed WeyeSity. The Additioiial Sessions Judge has nghfly convicted and sentenced tbe appeUaats under Section 323/34 ofthe IPC. 18. Consequently, fhe appeal is partly aUowed. Convictk>n of fhe appellants under Section 302/34 of the IPC is altered in.to Section 304 Part II read with Section 34 of the IPC aad ftiey are scntenced for impnsorunent for the period already undei^one i.e. fiTona 16.1.2004 till today. Conviction aad sentence of the appellaate under Section 323/34 of the IPC is hereby maiutained. The appellarits be released forfhwifh, if not reqiiired iu any other case. - ^yr\lt}^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge / ®