.HC—78 ^TT^l ^RT f<rl)ch ^^ 'STI^T st)^i<sb y.--— v 3^5T ^ll^l^^, ?$Tfl^JI<S, [sf<?>»l-M^< ^p^- -^z^ ® ^l^tdl sb*<|ch Cx.. ^Ap^ UC,^ 3n^?r 'q^? (^cjf^^) "•^ 200/ ^^TTW^rft^ ^TI^T Cr. Appeal Ito. 1164/2001 Appellasat (In Jail) Respoadeat Cj-imiaal Appeal under Slectjon 374 (2) ofthe Code of C^imia^l Procedure DIVISION BENCH: Hoa'ble Sfari L. C. Bhadop, Hosx?ble Shri Suail Kumar Siiaha, JJ ORAL JUDt&MBNT (26.7.20071 L.C.Bhadoo, J. Govenfcment Shri Vishnu Koshta, ShriD.K.Gwalre, Heai'd. By fhis appeal, filed ^ appellant has questioned tli^ judgnient of convictiou and whereby, the learaed Seconc^ <^l^(<rf^ftrf "HTR?if '^,Fsl<il <P»1<^|< "^'afffpT 3TT^r |Narsiagh, s/o Konda, aged aboiit 137 years, R/o village: Teinri, IPolice Station: Naiidgliat, iDistdct-Durg (Chhattisgarh) IVs. State of Chhattisgarh, fhrough the PoUce Statiou, Naiidghat, Distdct-Durg, (Chhattisgarh) coiinsel for tlie appellant. Advocate for the State. ^nder Section 374(2) Cr.P.C., the legaHty and correctaess of the o^der of sentence dated 23.11.2001, Additional Sessions Judge(FTC), XI-HC—78 •3:53f ^Wt^)^, ^y^Ko, {s)<?i>l-y^< 'W^TT sh^(l<!b •^ 200 ^^ ^T ^i<^ ^T^T 'STT^T st»^i<^ t. 3TT^?T ^i^ (4^fr|^<^T) proseci^tion accus^d Bemetara, in S.T. No.^ accused/appellaat guilty for| Section 302 of IPC for sentenced the appellaiit to ui{ of Rs.5,000/-, ia default of R.I. for 1 yeai'. The case of fhe about 8.00 a.m., the accus^ house of Kunwar Siagh (sin|< heariiig the caU of the house. The accused asked] cliverted the course ofwater on which, Kunwar Sin.gh course of water towards his Kunwar Siagh tliat if he had shozild go to Mahainaya in the teinple. On that Kui Mahainaya teiaple, by tlie ti4 tiie accused/appellaiit said name of moth.er aad sister result of which, Kunwar Thereafter, tlie accused/app| times with lathi and ran awal witaesses-Umed aad liim to his house, fainUy .^19/2000, after holding the commission of the offence under c^usiag deatii of Kunwar Siagh, l.dergo R.I. for life aad to pay a fiiie )aymeut of fine to furtlier undergo Temble tnlQie RewarNn c^i^?<n41ti +ii^<?if ^fs^ <r^^« '^'siRm'sn^T m briefis that on 8.8.2000, at ^d/appellaiit went ia front of fhe >e deceased) aad callecl him. On 1, Kunwar Siiigh came out of the Kunwar Singh as to why he has t|owards his field from accused field, fhaf he had uot diverted the jjield. The accused/appellaat asked |aot diverted flie course ofwater, he ;, say so it firmly before tlie deity iwar Siagh started goiag towards ?, hardly he could cover 20 steps, ^ou are a liar, abused hissi ia tlie ^iid attacked liim with lathi, as a piagh fell down on the ground. ?Uaiit assaulted Kunwar Singh 3-4 from fhe place ofoccun'ence. The lifted Kunwar Sin.gh aad took jmembers of Kuuwar Singh were XI-HC—78 T^ ^NI<Y"»^, ^TTi'yji(S, fsf^i'yy "Nl^^l sbNlch •^ 200 -r" ^TT^T^ f<vli<=h '<TS?T 3TT^T ^+iicb t. ^ 3?r^?r TS^? (4CI^<8T) '^RTTW^f^'ST^r — g— iiiformed, who were iii took Kunwai' Siagh to matter was reported t<( nephew-Lakhaa, which| imder Ex. P/22. After Head Constable-Maiiiil Manmohaa Siagh, after| Ex.P/1 to the S.H.O. registered. Halka Patiu\ requisition Ex.P/ 4-A Kunwar Siagh, on whi4 medical report Ex.P/4 While ia fhe poUce under Ex.P/6-A. Basec| of oflTence under Ex.P/' Singh succzimbed to | Investigatiag Officer, aft| prepared iaquest Ex.P/| body of Kunwar Siagh ^ A, where Dr. S. K. aiid prepared the reportj seized under Ex.P/15. After coinpletion filed agaiast tihe accus| ChiefJudicial Magistrat^ culs Shatina, cbl^{<rt4Tl ^l*4<yiT ^fesl' ipsi-^K ^T 3Tf?fq STT^T pieir agricultural field. They came aad pie Primary Healfh Centre, Teiari. The {> fhe Police Station Naiidghat by his was entered ia fhe Rozncuncha Sana ^nterhig the report ia Roznamcha Swza, |ohaa Siagh was sent to ftie site. 1 reachiag the site, sent the Dehati Nalisi |Based on ttiat, crime No.81/2000 was |fin, prepared fhe site plaii Ex. P/2. The sent for inedical examination of (h, he was niedicaUy examined aiid the ^as prepared by Dr. N.P.Jaagde (PW-8). >tody, fhe accused gave nieinoraiidura on fhat, PoUce recovered lathi, weapon However, in the xneaiitisiie, Kiinwar fhe injuries in. the hospital. The ^r giviiig notice Ex.P/13 to the Panchas, |14 on fhe body of Kunwar Siagh. The ^as sent for postmortein under Ex.P/ 12- itina, (PW-12) conducted fhe postoaiorteni Ex.P/ 11. A baniyan of the accused was of fhe iavestigation, charge sheet was ^d/appellaat ia the Court of Additional s, Benietara, who ui tum, coiainitted fhe XI-HC—78 ;?^T ^TTEn^r^ ^Tfte7T^, i^ray ^' MWvi\ th^leh "^ 200 3TTt?T V(^ (<lci?l<s8<^) STI^T ^T f^-iich ^^ ^ll^t 5h^11<=b '^TT^T ^lfN 3?T^T —Z^^ fbe abd case to fhe Sessions Judge, Additional Sessions Judge, fraiisfer for trial. The prosecution in. ord^ the aceused/appeUaiit statement of the accused v^ Cr.P.C., iawhich, he denied ni the prosecution evidence has been falsely iBiplicated ir^ Mohammad was exammed, v^| day, Nai'siagh was goiag of Rawat coinraunity were asked Narsiagh to go to Narsiagh went to tlie Police Sl^ The learaed Addittonal counsel for respective parti| acciised as aforenientioned. We have heard Shri Vj tlie appellaat aiid Shri D,K.G^| State. Shri Koshta has not Kunwar Siagh. Moreover, P^ that on tlie fateful day, at accused attacked flie dece^ uicident from. a distaace ofabjc Dijirg cb(^?^t'4h ^i^<n1* ^fe^t <F3<^|< ^''3TRR37I^[ frosoi where the learaed Second IBeinetara received fhe case on towajrds ch^siag tbe SKation ^r to estabUsh fhe charge against ^ed as niaay as 14 witaesses. The [os recorded under Section 313 inaterial appeaiing agaiiist him stated that he is innocent and the case. In defence, one ShakU tho has stated that on fhe fateful fhe viUage. He saw fhat people him to attack, on which, he PoUce Station aad therefore, [ation-Naadghat. |Sessions Judge, after heariiig the 's, convicted and sentenced the Ishnu Koshta, learaed counsel for ratre, Govemnient Advocate for fhe disputed fhe honiicidal death of r-2- Uiaed has categorically stated ibout 9.00 a.m., he saw that tlie ised witli lathi aad he saw the 3ut 15 feet 3'^ET -t||-q|0^, ^Tf1'y41<S, (s)<^l'H^< ^@ NINdl <hNI<sb"""""""""""""""""""""""""" """^ 200 3TT^?T ^T^ ( 4C<^<^) 3^T.?RT R^ich 'WT^n^T sCTN? c t ^ciTW^Tf^T ^TT^T -^- wUo tDie The above ocular evidencel of Dr. S.K.Sharma, (PW-12), he conducted fhe postaaiorteni 04 tliere were iajuries on his body. damaged, Uver was ruptured in | blood was present ui fhe pelvp condition aad he stated that sustamed by Kunwar Siagh a4 nature. Therefore, frora tlie estabUshed that tlie death of nature. As far as the iiivolveiaent d) question is conceined, PW-2-1 deceased as weU as tlie accuset hioi. The deceased Kuiiwar Sii^ date of his evidence. He saw deceased with lathi, at about 9.(|) of occurrence, where flie accu^ lathi was at a distaiice of aboutl fhat time, he was sittiag m frontj spot when Kunwai' Siagh examio.ation of fhis witaess, def| aay circumstaiice, which iiidependent witaess. Moreoverj corroborated by flie evidence?; GRPRJ—F chl<lf<n<flTl 'RTR^f/^ f^^ <F^^« '^3tRPT3TT^T |is corroborated by fhe evidence has stated fhat on 9.8.2000, fhe body of Kunwar Siagh and |The peritoneuin inembraae was |fhe size of 3" x W aiid clotted [c cavity, face was in swolleu cause of deafh was injuiies ld fhe death was hoinicidal ia ocijilar aiid inedical evidence, it is I^Linwar Siagh was honiicidal ia l?faccused/appeUaiit ia criine ia Umed has stated fhat the jl/appellant bofh are known to died 2 inontlis prior to the Ithat the accused attacked the j)0 a,in. ia the street. The place |ed attacked tlie deceased with 15 feet froici his residence. At lofhis house. He reached on fhe al^eady feU down. In cross- fcnce has not been able to eUcit fhe evidence of this the above evidence of Unied is |of Dr.N.P.Jangde (PW-8), who Su|igh dislcredits XI-HC—78 T^ -qiAii<^q, ^TO'M^KO, f^ray ^iWWl 9kN(ch •^ 200 3^?T '^sW ( <i^'l^<l?T) 3TI^¥T??T f<^i<=h TT8TT 3TR?T SD^IC^ '^ c '^TT^R ^f^T 3?T^T _ ^ examined fhe iajuries present oi| has stated tliat tlie followiag iiij^ 1. aii abrasion on f| 2. a contusion of ^ fhe size of 30 crd was extendiag shoulder up to st 3. a contasion on t] ia colour 4. abrasion on the i The Doctor has opiaed tl: caused by hard aiid blunt obj< hours. PW-12, Dr. S.K.Shanna, prepared fhe report Ex.P/ 12 on flie evidence ofDr. N.P.Jaiigde ( of lathi in-jury was present on s the oral evidence of PW-2- Uraeu evidence of Dr. N.P.Jaagde(PW- (PW-12), therefore, the involve crmie iti question is estabUshed Shri Koshta argued that started on the ground fhat tlie: two that Kiinwar Siagh had dive was derded by th.e deceased-Kur c?)1^fef'£frrT 441*4<!lf ^FS^I i^l^K '^'STfm'STT^T the body of Kunwar Singh aad iiij^ries were present on the body: |ie left cheek, (tomach at epigastda region iii x lcHi red ia colour. The injury Ifrora fhe lower portion of left lomach. tiroat iii size of 8 cm x 1 cm red ijight elbow joiat. lat fhe above iiijuries could be fcct wifhia fhe duration of 4-6 conducted postaiortein aad P.8.2000, has also corroborated pW-8) aad stated that the mark jfcoiaach of tlie deceased, hence, jl is corroborated by fhe medical j8) as weU as Dr. S.K.Sharma (aieut of accused/appeUaiit ia ()eyond reasonable doubts. [m tlie present case, a dispute t-e was altercation betw^een fhe |rted fhe course ofwater, which Iwar Singh aiid ia that process, 75ST "41'>11<71><4, ^TH-M^Ko, (s«v>>l'y^< (£) *11^dl **<!* -^ 200 an^r T|^R ((lc<^<^) 3^[JFT R^Jcb '*^Jcb ^ ^RTR[R ^rftcT 3TI^T 7- accused attacked the deceas^d mtention of tlie accused to ca4 further argued fhat injuries we\ body. Only sunple iajuries were] abdomiaal region, however, fher| stoinach nijury. Therefore, froi4 fhat the accused iatended to cal He also argued tiiat iaitially tl^e Section 323 ofIPC and as Kunwt tlie hospital, the offence under On the ofher haad, supported the judginent of the In order to appreciate fhe coiinsel for fhe State, we hav^ postinortem repoil aiid the evicj and Dr. S.K.Shanna (PW-12). It is aa adBiitted position pomt fhat the accused/appeUan^ fhe deceased saying fhat he h^< froia accused field towards his deceased aiid fhere was aiil accused/ appellaat asked correct, then he should go to th|< deity. The deceased readUy a| towards the temple, hardly; ^ cM^(<n<flTi 'RW^ff ^ 'fec3t <F»i<^« ^^tRmsn^T with. lathi There was no [se death of Kunwai' Siagh. He re not on the vital parts of tlie 'aused on cheek, shoulder aad was rupture of Uver below the fhe facts, it caanot be inferred ^ise fhe deafh of Kunwar Siagh. offence was registered under r^r Singh died on the next day ui ^ction 302 ofIPC was added. counsel for tlie State Court. ^rguments, advaaced by learaed perused, niedical report and |ience of Dr. N.P.Jaagde (PW-8) le^raed tital jfhat fhe dispute started on fhe fc-Narsiagh went to the house of ld diverted the course of water |field, which was denied by fhe altercation, on which, the l-Kunwar Sin.gh if he is i|e teraple aild say so before fhe i^reed. When he started going could cover 20 steps, the dece^sed iNe GRPRJ- 3:5?T ^||41<7>^, ?$Tn'yjl<S, fs)<?>l^^< ^Wv{[ (b*<l<sb ^200 3n^?r xrazp (^cif^^) ^TI^T^T f<TlJch '<cCT3TI^T shHJcb vc. ^FBTW^f^Tsn^r - ^- inflh< accused/appeUaat attacked fhe he is a liar. He had diverted fU process; he inflicted 3-4 iiijurie| simLple ia nature; however, corre<| liverofthe deceased was ruptare|d FroBi tlie above evidencej accused, ia fact, iatended to urpi the deceased wifh the uitention tlie nature of injuries, ffaie part were iaflicted as also the nature fhat fhe accused/appellaat iaflic|t€ cause fhe deatfa of Kunwar which fhe accused/appeUaat safely be uiferred fhat the ac< itiflicting iajury with lathi on cause death, tlierefore, accused/appellaat does not extei IPC and for fhis view, we are of Apex Court, rendered m fh^ State of Puniab. 1994 SCC leceased wifh lathi, sayiag that ie course of water and in tiiat Appai'entiy, 4 mjuries were spondiag to stoiiiach iajury, the mflicjted Singpi. clece^sed Nahar Siagh was witaessed by PW-2 aad it was fo|i on the body ofNaliar Siagh. The^e head but there was no corresp^nd were contusions on the chest :^xi|d cM^f<n<flTi 'RT^f "^ f^st ^^K ^ ^if^TT^ni^ it caanot be iaferred that fhe IrLpict the iajuries on the body of |;o cause his deafh. Lookiag to |3f the body, where the injuries (^fweapon, it caanot be iiiferred mjuries wifh aa iatention to However, ia the niaaner, ni ^ttacked the deceased, it can msed had knowledge fhat by L, the accused inay likely to |lie offence again.st the id beyond Section 304 Part II of ia our view by fhe decision matter of Karmn SinQh Vs. 64. In fhis case also fhe atf:acked with lathi, which was stotaach foi-tEfied flDrij und th.at there were 10 mjuries was a lacerated wound on fhe liiig iateraal iajury, There iryury Nos. 5 to 7 reszilted ia GRPRJ — 3^5T ^l-qKr')^, ^^^1(5, fs)(?I>l^^< Nl^dl <b^|ck"""""""""""""""""""" """"""""^ 200 3TT^T X|?TSR ( 4C(^1C<^ ) ^TT^T^FT R'lJch WT 37R^T sti^lcb sunita '^TTW^fftn 3?TT^T -3- CM^<n^t 4-ii*i<^T ^f f^^ <F3ri'^i< ^3tRFT3TT^T the fracture ofribs which caused) his deafh. The Doctor adinitted tiiat the fracture ofribs could haj^e m tuni caused tlie rupture of the Uver and the spleen. The c|ourt reached to fhe conclusion ttiat it is difficult to hold fhat tjhe appeUant intended to cause fhe iajuries to the Uver aad t^ie spleen which unfortunately proved to be fatal. Ultiinately, ^he court held fhat tih.e offence agaiast fhe accused/appellaat <^oes not tii'avel beyond Section 304PartIIofIPC, The facts of the present c^ said decision ofthe Apex Court. In fhe resiilt, fhe appea| succeeds. The conviction aad ^ 302 of IPC is set aside. In^ convicted under Section 304 Pj iindergo R.I. for 7 years. As per fhe judgment of tri| is iii detention siace 9.8.2000 1|U1 today, therefore, he shsdl be entitled for the set off for the pej benefits. Sd/- L.C, Bhadoo Judge |.se are squarely covered by the filed by tlie appeUaii.t partly entence iaiposed under Section tead tliereof, tlie appellaiit is irt II of IPC and seutenced to d Court, the accused/appeUant riod of said detention and otfier Sd/- Sunil Kumar Sinha Judge GRPRJ — FS/246—2/2007— 50,000.