^ HIGH COURT OF CHHATTISGARH, BILASPUR COAAM: Hon'ble Shri Ra.jeev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. ^ Criminal Appeal No. 108/ 2003 Beer Singh Dhruv S2E^^ Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge b llii^i^^^N i^^s-isr^s-siija? 3} HQN'BLE SHRLJUSTICE RAJEEV GUPTA Q ~-J Chief Justice 4.^ 1-1 1-2.UW Post fc- Sd/- Judge /^-/7/2009 ', teR"l, v^-^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kuinar Sinha, J. Criminal A^peal Np.108 of20Q3 APPELLANT RESPONDENT Beer Singh Dhruv, son of Roop Singh Dhruv, aged about 32 years, resident of Amera, P.S. Palari, Distt. Raipur (C.G). Versus State of Chhattisgarh Through P.S. Palari, Distt. Raipur, (C.G) (APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE1 Appearance: Mr. Shailesh Ahuja, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (/^ .07.2009) Following judgment of the Court was delivered by Sunil Kunaar Sinha, J. (1) Appellant Beer Singh stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500, in default of payment of fine, to further undergo R.I. for six months, by the II Addl. Sessions Judge, Baloda Bazar, 'S-SK.i.^'" Cr.A.No. 108/2003 Distt. Raipur (C.G) in Sessions Trial No. 15/2002 on 19<h of September, 2002. ^!^t^l^^§^ (2) The facts, briefly stated, are as under: On 19.9.2001 at about 6.00 p.m., Chhabi Kumar Dhruv (P.W.8) went to the house of the appellant for taking the ainount of Gitty (broken pieces of stones), on which, the appellant abused and slapped him and sent him back. Chhabi Kumar (P.W.8) narrated the story to his aunt Tijobai, since deceased. On this, Tijobai went to the house of the appellant along-with Chhabi Kumar Dhruv (P.W.8) and her daughter Sunita Bai (P.W.9). The allegations are that some hot exchanges took place between them, on which, the appellant abused the deceased and assaulted her by giving single blow by a knife causing an incised wound on her skull in the right occipital area, resulting in her death. The incident was witnessed by Chhabi Kumar (P.W.8) and Sunita (P.W.9). Karan Singh (P.W.10), husband of the deceased, was informed about the incident, who lodged the First Information Report(Ex.P.l8). The investigating officer reached to the scene of occurrence, gave notice (Ex.P.5) to the Panchas and prepared inquest (Ex.P.6) on the body of the deceased. The dead body of the deceased was sent for its postmortem to Govt. Hospital, Palari under Ex.P.15(A), where the postmortem examination was conducted by Dr. Munish Shrivastava (P.W.13) who J^ ^:^€/ Cr.A.No.108/2003 prepared his report Ex.P.15 and opined that the cause of death was shock and syncope due to considerable blood loss, as a result of deep incised wound on head and it was homicidal in nature. In further investigation, blood stained soil and plain soil were seized from the place of occurrence under Ex.P.4. Some small pieces of bangles were seized from the place of occurrence under Ex.P.3 and a Kitchen knife was seized from the possession of the appellant under Ex.P.2. The site plan was prepared under Ex.P.1. The seized articles were sent for their chemical examination to Forensic Science Laboratoiy, Raipur, under Ex.P.19 from where a report Ex.P.21 was obtained. According to F.S.L. report, blood stains were found on all articles except plain soil. After completion of the usual investigation, the charge sheet was filed in the Court of Judicial Magistrate First Class, Baloda Bazar, who in turn committed the matter to the Sessions Court, Raipur, from where it was received on transfer by the II Addl. Sessions Judge, Baloda Bazar, who conducted the trial and convicted and sentenced the appellant, as aforemendoned. (3) The conviction of the appellant is based on the eye witness account of Chhabi Kumar (P.W.8) and Sunita (P.W.9). Mr. Shailesh Ahuja, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of the deceased. More over, it conies in the evidence of Chhabi .-"t:-a&<s., ^-^, \.^/ '"ilasaE« f^ Cr.A.No. 108/2003 Kumar (P.W.8) and Sunita (P.W.9) that the deceased was assaulted by the appellant by a Kitchen knife and she died on account of the injury received on her skull. The Autopsy Surgeon Dr. Munish Shrivastava (P.W.13) also found the above injury on the skull of the deceased and opihed that the cause of death was acute shock and syncope due to considerable blood loss on account of deep incised injury on the head. Therefore, it was established that the death of the deceased was homicidal in nature. (5) The complicity of the appellant is also writ large on record. It comes in the evidence of Chhabi Kumar (P.W.8) that it was the appellant who assaulted the deceased with a knife. Sunita P.W.9) has also stated in similar fashion. Chhabi Kumar and Sunita are the child witnesses. They were aged about 13 years and 7 years on the date oftheir evidence. Their evidence is natural and specific on all points. They have been put to lengthy cross examinations by the defence, but the defence has not been able to elicit any such circumstance on which their testimonies may be doubted. Therefore, the complicity of the appellant in crime in question was fully established by the prosecution. (6) Mr. Ahuja then argued that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the act of the appellant would be punishable /__„ a-s"SsS.. B '•iS^SKEg^ f, •vssy-^ s i ,. J s '%:. "at^^i'11 Cr.A.No. 108/2003 under some lesser section preferably under Part-II of Section 304 IPC. (7) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate, appearing on behalf of the State opposed these Eirguments and supported the judgment passed by the Sessions Court. (8) We have considered the arguments advanced by Mr. Ahuja. It is clear from the evidence on record that there was no previous enmity between the appellant and the deceased. The deceased had gone to the house of the appellant for demanding money which, according to them, was payable by the appellant to Chhabi Kumar (P.W.8). Sunita (P.W.9) deposed that when they reached to the house of appellant her mother said to appellant as to why he has not paid the money to Chhabi Kumar and why he assaulted him ? On this, some altercation took place between the appellant and her mother and the appellant gave a knife blow to her mother. This shows that nothing was premeditated and there was no preparation of the appellant to commit murder of the deceased. The assault was after some hot talks between them. It appears that during the hot talks, in heat of passion, all of a sudden, the appellant gave knife blow to the deceased, which proved fatal. The conduct of the appellant would further show that he had not taken undue advantage or acted in cruel or unusual manner. Therefore, we are of the considered view that theact %'»ia . Cr.A.No. 108/2003 ^ of the appellant would be covered under Exception 4 of Section 300 IPC and he would be liable for punishment under Part II of Section 304 IPC. (9) Accordingly, the appeal is partly allowed. The conviction Eind sentence awarded to the appellant u/s 302 IPC are set aside. Instead thereof, the appellant is convicted u/s 304 Part-II IPC and sentenced to undergo R.I. for 10 years. It is stated that the appellant is continuously in jail since 20.09.2001. He shall be entitled to set-off the period already undergone by him. Chief Justice Sd/- Sunil Kumar Sinha Judge Rao