HSGH COURT OF CHHATTISGARK.BILASPUR Cri^Inad Appeal No,S6./2002 'fele L-C. Bhadoo^ I'ble Suull Kwsa.sa Siaua, J, J Supet Ra-m, aged aboiit 50 yeai's, s/o Dabel Gond, Occupation Cultivator, R/'o village Kokarii, Tbana ujtider Masturi, Tali. And Distt. Bilasp-iir fC.G) Stete of Chhatfisgarh, fl-iroiigb P.S. . Masturi, Bnaspur(C.G) Arpesrf uader Sectloa 374(21 oftheCode of C^imina! procedure Stiri S.C. Vemia, counsel for the petjtioner. Sbri Akhil Mishi-a, counsel for the State. {22.S.20G7$ Jhe fol1owingjiidgiTient nfthc Courtwas delive.red by SunU Kumar Biaha, J. Hearri. (11 This appeal is riirected sgainst thc jiidgmRnt of conviction aod order of sente.nce dated 31.10.2001 passcd by the IV Addl. Sessions Judge, Bilaspur, in Sessions Trial No.465/2000 whereby the appellant. has been convjcter) under section 302 I.P.C. and sentenced to landergo life imprisoTimeTit and to pay a fine of Rs.1000/-, in default ofpaymentoffine, to fiirther nndergo R.I. for 6 inoutbs. (2^ The rtase of t.lie prosecution is that the deceased nainety Kanilesh, a boy aged about 12 years, nsed to take Tiis cRttle near tlie fields ofaccused for grazing, On the fatefal rlay; the rieceased alongroith with his friend Rajenrlra @ Bnflu (P.W.1) and Ajay (P.W.9) harl gone for grazing ttieir cattle. The allegations are that ori account of grazing of crop of accused 1^y ttie cattle of the ideceased, tbe accused assaulted tlie deceased with a sinall irori n li. 1. 'rimina! Appeal No.56/2002 rod. These two boys naniely Rajendra and Ajay had witaessed tlie incident. They went to the father oft~he dei-eased Bilkhelal (P.W.7) and infoiined him about fhe mcklent. Bukhelal gave merg intiniation Ex.P-14 in PoUce Cbowki, Panchpedi, on which, the Pil-st InfonnatioTi Report was lodged in police stalion Masturi vide Ex.P.13. Diu-ing the course of investigation, fhe Invest^atiui Officer gave notice to the Paivh witnesses under Ex.P.l. Ttie Pandinajna on the dead body offhe deceased was prepai-ed under Ex.P.2. P1ain soil & bloodstained soil, an. iron rod and one pair of plastic chappals were seized from the place of occurrence under Ex.P.3. The dead body offlie deceased was sent for postrnorteiii to Block Medical Office, Masturi zindei-Ex.P.4. The postmortein on the body of the deceased was conducted by Or.Heinant Dreit (P.W.4) and postinorteni report Ex.P.9 was prepared by hini. The doctor opined fliat tjie cause of rieath was excessive heniorrliage due to uijliries. The Doctor noticed the following injuries. (i) An incised lacerated wound in size of 3 s Va x Vi cm on Ae leftear. (n) An iacised lacerated wound ui size of 2. x 'A x Va cm on ti-ie back side ofthe left car. (iii$ An incised lacei-ateri wound nn the back side oftbe ear in size of5 x 1 y;a x 1 cm on thehack side ofthe ear (iv) There was swelling on tlie left mandibular region which was bluisb in co5our. Its size was 10 x 6 cm. After opening oftiie aaid wound, Wood was found. On intemal exaininatiou, the brain was found healthy, botli the 1uogs were pa1e, there were small quantity of hlood in both the chambers ofheart; liver, spleen & Kidneys were pale aild urinaiy bladder was empty. AH the injuries were aiitemortem in nature and wene caused by hai-d and btunt objecfc (31 {n further investigation the seized articles were sent for cTietaical exaniination fo the Forensic Science lAboratoiy, Bilaspur, fiToin wbere the report Ex.P.8 was received, accordingito which, fhe blood stains were found on the sajnpte of soil and clofiies of the deceased. The blood sta.ins were also found onltlie ! • i :1 weapon ofoflence i.e., iron rod sized from. fhe place of occurrenjce under Ex.P.3. This iron rod was also sent for exainination to tiie Criminal Apneal No.56/2002 Doctor uilder Ex.P.TO-A, who gave his opinion iinder Rx.P.10. The site plan was prepared uuder Ex.P. 11. (4i Afler coniptetion of nsna1 iTivestigation, the charge sheet was ffled hcfore the Judicial Magistrate First Class, who in tiirn coTnmitted the case to the Sessinns Jiidge, Bilaspnr; from where the casc vras rRceived by IV Add1. Sessions Jiidge, Bflaspur, who condiicted the trial anrl coTivicter'i the acciised as afoifmRntionetl. t5) The conviction is based on flie testiinoTiics of Raje-ndTa (P.W.l) and Ajay (P.W.9) con-ol-ioi-ated by F.I.R.; testimony of Buklielal (P.W.7) furthcr con-ohoi-ated hy inedical evidence of Dr. Hemant Dixit (P.W.4) ^; ^ I^eaiTied counsd for the appellant has liiit disputed tlie hoTnicidal fleafli of the deceased. Moneover, on T1ie evidence of these two witnesses nainely Rajendra (P.W. l) & Ajay (P.W.9), it has taeen GstaMished that a quan-fl took p1ace between the appeilant and tiie deceaaed in which the appellant assaiilted flie deceased with iron rod and the deceascd sustained injuries. They had gone to the father of the deceased namely Bu e1al (P.W.7) and on the liasis of their iTifonnation, BukhRlal rRported the matter to Hie police iinder the F.I.R. (Ex.P.13). Fiirfher tiieir evidence is coiTohorated \TV the evidence of Dr. Hemant Dixit (P.W.4), who had condiicted tlie postmorteTD^thR deceaser! and had noticed the injuries as mentioned ahove. Therefore, it is estalilished that the death oftlie deceased was boinicidal in natiinR. (7j As far as the involvenient of the accused is concenied, as stated above, there are two eve-wrtnesses iu fl-iis case. P.W.l Rajendra, who is a boy aged aboiit 12 years has deposed that 5 mouths prior to the date of his deposition, in thf aftenioon, at about 3 Cf clock, he alongwitii Ajay anA Kamlesh (since deceasRri) 1iad gooe for grazing flieir Biiffaloes near Sliivnafli river. At the time of grazing, one Buffalo of Kaiiilesh entered a neai-by fie1d of the accnsed and started grazing the standing crop. On fliis, tbe accuserl started ahusing the deceased by hinting his mother and he a1so said that eveiy day the fSeceased used to hring hia bufTatoes towards his fieM and tliereafter by an iron rod, he assaiitted hiin on teinporal region, Aue to which, f.he deceaser! fe11 riown. After ;> ^ •O 1 i ( •{./ i^! K Criminal Aoneal Nn.56/20G2 that, tiie appeltant had tried to pierce the rod in tlie. ears of tlie deceased. He deposed that thereafter they I'an away towanis the village and naiTated fhe stoiy tn the fathe.r of the deceased. ThereAfter tlie inotlier saad fatber of flie deceased had Rone to the place of ocCTirrence. Tn para 5 ofhis cross exaTninatinn, it. comes that thd1e was soine scuffling between the acciiser! and deceased and fhey have fell down 011 the groiind, biit uofhing inore could be hrought. OQ record to discre.ilit the evidence in entire cross exainination of this witness. (§) Ajay (P.W.9), who was also accotnpanying the deceased, has deposed tliat on the fatefiil day, he alongwith Kainlesh (deceased), and Botki had gone for grazing their cattle near ShTimath river. The accused appellant came over there and said to Kanilesh, by abusing, thatwhy he brings bis cattle towarcls his field and why he [et them entered in his field and at that time, one buffalo of Kainlesh had cliiabed over the biind of the field of accused appellant. The accused, abusing tJie deceased, assaiilted Tiini with a rod, due to which, tlie deceased received injuries OT> his left temporal region. The Mood started oozing out of the injuries 1'e-ceived by fhe deceased. He has furflzer deposed fhat he alongwith otiier persons ran away froiii the p1ace of occiin-encc and infonaed the matter to fiie father and tlie. inofher oftlie deceased. il! T1ie evidence of P.W.1 & P.W.9 is fiirtlier supported by the evidence of the father of the deceasert naraely Bukhelal (P.W.7), who stated tbat on tHe fatefiil day, one hoiir after taking of t]-ie cattle for grazing, Ajay anA Bottu came to his hovise and told hini that tbe deceased liad attacked Kamlesh. Thereafter, he went to fiie place of occurrence and saw that Kanilesb was tying on the ^round. He was already dead. Thei'e wei-E" injiiries nejar the ear of tlie deceased froin where the b1ood was oozing oiit. Thereafter, he went to Chowki, Panchpedi and lodged flie report. He has proved fhe repoil Ex.P.13. 1n the cross exanrination, nothing s-idverse has been brought against tMs witness as also tlie 1wo eye witaesses on which tiieir evidence xaay be disl-ielfeved or discarried. Therefole, the coniplicily of fli.e acciised in crinie in question is established by tbe ociilar evidence of two witaesses aad the maker of F.I.R., '- -) ^ J o l^ Criminai Aopea! No.56/2002 •^^fr-:' -: Wff^S^^SfeSi ^ifi||^|^:!i> supporfed by t.he iiiedical evidence of the Doctor, who conducted the postaiortem exanunation. (10) At fliis stage, leamed counsel for the appellsnt argiies that looking to the. genesis of the crime and further looking to the natiire ofinjuries sustained by tlie deceased as also the weapon of offence used for coiiiiiiission of the ci-nne, it does not appear tliat the accusert was taavina anmtentiou to cause death of the deceased. His snhTnission is that in the facts and cmcuinstances of this case, the oflence cominitted T)y the accused ahall not. travel beyond section 304(part-ii) of I.P.C., and the conviction of the accused-appellant ii/a 302 IPC cannot be sustaiiied. j11) We haye considered this argiiment advanceri by leanied counsel for t.he appellaiit, and have also penised t'he records of the sessions case in this re'aard . (18) Aduuttedly, the qiian-el in tlzis iuatt.er had taken p1ace on account of enteruig of the biiffalo of tlie deceased in the field of acciised/appeilant. It appears tTiat usually when the cattles were lii-ozight for grazing on ttae hank of Shivnatli river, they used to enter into fhs fields of the appellant and 011 fhe fateful day also one biiffalo of the deceased had dimhed over the bnnd of the agricultui-al field of the appellant and when fhe appejlant saw that the said buffalo is enteriDg into the field, in resistance and anger he went. to the deceased and aftf.r sonie hot exchanges witli tlie deceased be inflicterl injiiries fo him with iron roS. T1ie rod was of W in length and the diainRter of the rort was 1 Vi", ita one end was ppinted and perhaps it Biiist be used as a erow har in agricultiu'al tield. Tlioiigh tlieiie are inore than one injiiry on fhe boriy of the deceased but according to the postmorteni report and evidence of Dr.Hemant. Dixit (P.W.4) fheiiR was no con'esponding fi-acture to fhese injuries and the cause of death was excessive- heinon-hage fi'oiTi fiie said injiiries. l^ooking to the size and fieptli of t.he injuries aad fiirther looking to ti-ie liack ground of the quan'el, it does not appear to us that. in fact tlie acciiscd/appellant was :;haying intention to cause nnii-der of the deceased as tiiere is no evidence of preparation or pre-meditatTOn for conimitting such act. However, on flie basis ofocular aiirt medical evidence on record, it t"Q |T)|I«ii(i'uiiu';tai ***airUliiliUfrt ^°^^^flii|jji^iBr]faiitriijntfi^ Criminai ADpeai No.5<»/2002 \ can be gathered that the acciised was having knowlcdge tltat. such a.n act committed by hiiii is Ukely to cause death or siich injuiy which is likety to cause death of flic deceased. Theretbre, in 01 ir considered opinioii, ti~.e act conimittfid by the deceasBd woiild not travel beyond section 304 (Part II) of I.P.C. and to tnis extent, fhe argiiinents advanced by teanied counsel for the appellant. appears to be acceptable. (13) Accordingly, ttie appeal is partly allowed. The conviction and sentence uaposed against tlie appellant u/s 302 I.P.C. ai-e set aside. Instead tiiereof, tlie appellant is convicted u/s 304 (Part-TI) IPC and sentenced to iindei^o imprisonnient for 7 years. It is stated that. the appellant is in jail since 2 T.9.2000. For the perioi^ undergone, the appellant shall be entitled for flic set-off sgainst Qie sentence imposerl upon hmi. j I i , SdA , / sunlIKun,arSiaha Sd/- L.C.BHADOO Judge Judgi Rao