§ Appell ant In the High r§ourt rof judicvature of rChattiSgarh at BILASPUR. Criminal Appeal Noo 5“?) 7/2001 : R.P.Satyanarayan son of Ramkrishna aged 29 years; resident of ‘Purani 'Police Line :Konta, District Dantewada(Cha’ctisgarh) Vs. z Staterof Chattisgarh through District Magistrgte, Dantewada( Chattisgarh) Appeal under sectianv374(2) of‘the Criminal Procedure Cede against the judgment and sentence ’dated lO-4—200l passed by ShrirA.R.Dhurva, First Additional District and Sessions Judge, Jagdalpur( Bastar)-in’ Sessions Tri a1 .No. 7217/2000 r convict- ing‘ the appellant under section 302 Indian Penal Code for life long e imprisonment and fine of Rs. 2000/- in default additional 6 months rig- -rous imprisonment. Respondent XI-HC—22 DIVISION BENCH: . HON’BILE SHRI L.C.BHADOO > & HON’BLE SHRI DHIRENDRA MISHRA, JJ ‘ ”CRIMINAL APPéIAL NO. 540 of 2001 v Appgllanf ' R.‘ . Satyanarayan Vs 1H ‘ . Respondént. S te of Chhattisgarh Ms. Nirupama Bajpai learhed; ounsel for the appellant. Shri U.N.S.Deo, l'éarned G.A. with Shri MP'LS. Bha''tia‘learned P.L.. for the respondent/State. i, ORAL J DGMENT (1 7.0 .2006) Per L.C. Bhadoo. J The accused/appellant has pr ferred this appéal uhder section 374 (2) of the Cede of Criminal P ocedure questioning the legality and correctness of the judgment 10f conviction and order of sentence ¥ dated 10.4.2001 passed b the Additional Sessions Judge; Jagdalpur in, Sessions Tral No. 217/2000 whereby learned Additional Sessions Judge fter holding the accused/appellant guilty forcommission of the dffence under section 302 o; thle IPC sentenced h‘im toe undergo irhprisonment for life‘ and payafme of mew w Rs.2000/-', in default of payment of fme to further undergd RHor six months. Prosecution c'ase in brief is that on 20.2.2000 Hari Mehta iodged a report in Police Station Konta to the effect that in thé’evening at about 20.15 hours when he; was taking his dinner at his residence, i he heardthe screams “ saivetsave On hearing the screams he came out of his house an saw that constabie P. Satyanarayan came carrying wooden ci b gin his hand and tried to assault Sanaeep on his head butt e biow was obstructed by a wire which was tied for the purpose of drying the cioths. in the meanwhiie, he caught hold of P. Satyanar yan. Sandeep disclosed that accused has assaulted his mother’ n her head withthe wooden club and she was lying in front of th gate of his-house. On hearing this he . .— went to the house of Sand ep and saw that Leelabai was lying in apool of blood and the bl od was oozing/out of her head and ear, on which‘he along with Su alu and one other person took Leelabai to the hospital where the octordeclar‘ed her dead. On receiVing this report Rakesh Modi, S b inspector PW-6 registered the case for the commission of the ffence under sections 302 and 307 of ¥.\ 3 " Homicidal nature of death of Leelabai is not in dispute. As far as involvement of th accused “in the commission of the crime A.in question is con erned, V learned c counsel“ I an .for the R. accusediappellant argued th as it was a dark night, itwas not __ ' possible for Sandeep to see s to who caused the injuries to his mother. She further argued that even if the case of the‘p’rosecutio'n v, is taken on its face value as itlis, the offence against the . accused/appellant does not tr vel beyond section 304-" of the IPC for the reason that‘the accuse ‘ had no intention to cause the death of Leelabai as he assaulted o ly once with a wooden club. 0n the other hand leame counsel for the respondentIState supports the impUgned judgm nt of the. trial Court. ln order to appreciate the ar uments advanced by the counsel for the accused/appellant we ‘ve perused, the evidence of the I proSecution witnesses. PW-1 Sandeep, the son of the deceased has stated in his evidence that on the fateful day When he was returning from the temple he saw that her mother was opening the’ door and the accused was assauiting her with the 5&3 wooden has‘ cbnvicted .ang sentenced the aecused/appeliant as mentioned in paragraph one of this judgm entj ' ‘ We have heard ‘learned counsel for the parties and perused the evidence available on record. \ \. {View a , XI-HC—Tl my WW [p i Wt 200 Mametwm aaaranm mam mm gfsh’ ‘ éiub on her head and he 12596 screams to save His motEer. Fle entered the house of neighb‘ ur Hari Mehta after opening the door who was taking dinner at tha time. and requested him to save him as the accused chased‘ h! , é! and tried to assault him with the wocden club but the b‘low w s obstructed by a‘Wire hanging in the house of Hari Me’hta and th reaftev Hari 'Mehta caught hold of him , and then he aiong with Ha Mehta went towards his house and saw that his mother was Iyi on the ground. Thereafter, he along with Hari Mehta and Sukalu took his mother to the hospital where she was declared dead. In t e cross examination this witness has stated in paragraph No. 8 rt at it is true that there was nolight on the road but in paragraph 9 " f his cross examination he stated that ., there was light in the house nd therefore he was able to see that the blow Was given by the accused. He has further stated that accused assaulted his moth ron her head twice. PW-4 Hari Mehta has corroborated the above vidence and stated that accused was chasing Sandeep and he tri to assault Sandeep with the wooden club but the blow was obstr cted'on account of a wire hanging in his house and thereafter 5a deep said that accused has assaulted n the gate. They'went there and saw’ that blood was oozing from e mouth and nose of Leelabai. There was injury on her head. Thus the evidence of Sandeep is o is an independent witness and-the defence has not been able o elicit anything to make the evidence of this witness untrustwort or unreliableFurther the evidence of his mother arid she is lying ”"l corroborated by Hari Mehta r \\ l l [The %@ XI-HC-ZZ \ mm WW WWK $3Tfv‘vm3né?! \ I’ Wm this witness ’has been corr borated by Dr' P S Shandilya PW-5 who has stated that he con ucted the post mortem on the body of Leelabal and found that the e was blood In the right portion of her nose, there was Injury on thle occlplial region. on the nght side and there was one injury on‘heri shoulder and on opening the body he found that there was fractur of skim and the injUries were‘caused by hard and blunt object an death of Leetabai was on account of cerebra! hemorrhage and acture of sku" Therefore the above medrcal eVIdence corrob rates the evrdence of eyewrtness Sandeep and there was mo ve also to assautt the deceased. PW-3 .Pramila Nage, the constab in the police department has stated that on the same day. she as going to mark her presence in the I ’ police station, ’at that time L elabi asked her that she would also go to the police station as acc sed Satyanarayan has quarreled with her in connection with clea ing of the draingand for‘that Leelabai lodged the complaint in the police station and‘on the’same—day the accused assaylted ‘Leela ai. Therefore, involvement of the accused in crime in questio is established and We do not frnd any illegality inrthe findings reco ded by the trial Court in this regard. - i As far as the-question of c nviction of the accused under section 302 of the IPC is concern ', there is evidence that the accused assaulted the deceased on er head with the woOden club. Looking to the nature of the weapo of‘ offence and the number of injuries and the fact that the acc sed assaulted the deceased on petty ‘ atter as there was quarrel betweenthe tWo during the daytime \l mew m XI—HC-22 ’ my? W CmAzgwn/ ‘ w 0) 209 ‘ WW.- mg’maxw ‘ mmw‘ ?§am $31f‘aqmh1 ‘ regarding cleaning of drain 0n which deceased lodged the report which enraged the accused’and he came with clubv and assaulted the deceased. Therefore,. in View of the above facts intention of the ‘accused to cause death oft ‘e deceased has not been established but the manner in whichthe ccused assaulted the deceased with ‘ the' club‘ on head, knowledg can be attributed to the accused that "‘ f he was knowing that the in] ry which he was causing may cause 1 the de‘ath of Leelabai, terefore, the offence against the accused/appellant does nott avel beyond section 304-“ of the IPC. £ 10. ln the resuit the appeal partl succeeds. Conviction awarded to the accusedlappeilant under sec ion 302 of the IPC is set aside instead the accused/appellant is co icted under section 304-" of the IPC“ and sentenced to undergo i for 6V years. Accusedlappeltant is stated to be in custody sin 21.2.2000 and therefore, the period .for which accused has bee ‘in detention during trial and appeal, shall be entitled for set off gainst the above sentence.- ln other- words the accUsedfappella‘n shall be. entitled for the set off for the i above. period ll Sdl Sd/- L.C.BHADOO DamENDRA MISHRA Judge Judge [do fixed