?'w HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Rajeshwarlal Jhanwar, J, Criminal Appeal No. 333 of 92 Fulljencius versus The State of Madhya Pradesh (now State of C.G.) JUDGMENT -7 Post for pronouncement of Judgment \i\ -12-2009 "Sd/- R.L. Jhanwar Judge '°as"^^/ E,;l:,.,^ HIGH COURT OF CHHATTISGARH : BILASPUR SB: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. APPELLANT ACCUSED (In Jail) NON-APPLICANT Crjminal Anoeal No. 333/1992 Fulljencius, S/o Shri Polus Urano, aged about 32 years, resident of Village Kadamtoli- Dodharamba, Police Stadon - Kasabel, Distt.Raigarh Versus State of Madhya Pradesh through Stadon House Officer, Kasabel, Distt. Raigarh Appeal under Section 374 (2) of the Cr.P.C. Appearance: Ms. Sharmila Singhai, counsel for the appellant. Mr. Arvind Shukla, Panel Lawyer for the State. JUDGMENT (Delivered on | (^ . 12.2009) 1. This criminal appeal is directed against the judgment of convicdon and order of sentence dated 26th February, 1992 passed in S.T. No.30/1990, whereby the learned Additional Sessions Judge, Jashpurnagar, District- Raigarh has convicted the appellant under Section 304 Part-II of the IPC and sentenced him to undergo R.I. for 5 years for causing homicidal death of Ratansai. 2. Prosecution story, in brief, is that deceased -Ratansai had gone to village of his niece Sukhnath. In the night of 25.9.1989 when Ratansai was watching Karma Dance from the vicinity of the house ofMeghnath, appellant Fulljencius, who was Sarpanch ofthe village reached near the deceased and make conversation to him which later on lead to a quarrel between them. The appellant assaulted Ratansai twice on his head and waist, as a result of which he fell down on the ground. When injured - Ratansai was being taken to his house, on the way, he died. In order to save the appellant front the alleged crime, the other co-accused persons concealed the evidence and caused burning marks on the dead body of the deceased by warm sickle thereby created the death of deceased as if he was suffering from disease. Thereafter, information regarding death of Ratansai was sent to his relatives. Report of the incident, Ex.P-1 was lodged by one Dalbirsai. Statements under Section 161 Cr.P.C. were recorded. Necessary seizures were made. 3. After completion of investigation, charge sheet against the appellant was filed before the Judicial Magistrate First Class, Jashpurnagar, who in due course, committed the case to the Court of Sessions, Raigarh. The learned Sessions Judge made over the case to learned Additional Sessions Judge, Jashpurnagar for trial. 4. The leamed Additional Sessions Judge has framed charge under Section 302 of fhe IPC against the appellant. Charge was read over and was explained to the appellant. The appellant abjured the guilt and pleaded innocence and his defence was that he has been falsely implicated in the offence. 5. The learned Additional Sessions Judge has, after evaluating the evidence available on record and hearing the counsel for respective parties, convicted the appellant under Section 304 Part II of the IPC and sentenced him as mentioned above. 6. I have heard leamed counsel appearing for both the parties at length and also perused the material available on record. 7. Dalbir Singh P.W.l deposed that after the incident, Pawan Sai, Manjulata and Janki Bai told him that the appellant killed Ratansai with Geda (lathi). On the next day morning, he went to see the dead body of the deceased and then lodged a report at Police Station vide Ex.P.l. He also deposed in cross-examination that did not know that the deceased was suffering froin epilepsy. 8. Pawansai P.W.2 deposed that the incident took place at the time of festival of "Navakhanf. When they were enjoying the festival of "Navakhani' and Ratansai was singing on account of that festival, the accused/appellant came there and due to singing a quarrel ensued with the appellant. Thereafter, the appellant assaulted the deceased with lathi, as a result, the deceased got injury on left side of back and due to that injury Ratansai fell down. Then they took him to the house of Sukhnath, where he died. Thereafter, he told Dalbir and other persons. In cross-examination, this fact was not rebutted. 9. P.W.6 Sukhnath also deposed that Ratansai is his relative. The incident took place at the time of festival "Navakhani". He also stated that Ratansai was not suffering from any kind of disease. He further stated that Dalbir and Pawansai were present at his house. 10. In this view of the matter, it is clear from the above stateinents of witnesses that Ratansai was not suffering froni any kind of disease and according to Pawansai P.W.2 accused appellant assaulted Ratansai with lathi and due to that the deceased got injury on his left side of back and that was also supported by Dalbir Singh. 11. Parvathi P.W.13 deposed that Dalbir P.W.l told her that his husband was killed. Meghnath P.W.ll, though he was declared hosdle witness, stated that on the nieinorandum of appellant lathi was seized vide Ex.P.13 and seizure rnemo is Ex.P.13. 12. M.R.Nayak P.W.14, investigating officer, stated that on the disclosure statement of appellant, he seized one lathi. After seizure of lathi vide Ex.P.12 , he also stated that he sent the dead body for autopsy. Dr. Yashwant Kumar Toppo P.W.12 examined the dead body and upon examination, he found that there were so many buming wounds and stated that these burn injuries were ante mortem. He also stated that there was on 9" horizontal injury on left side of back. According to him, spleen was ruptured. He opined fhat death of the deceased was due to shock as a result of internal hemorrhage and rupture of the spleen and death was homicidal in nature. He also stated that the injury could be caused by lathi which was sent to him for examination and burn injuries could be caused by the sickle (Hansiya) after warming the same. 13. Therefore, there appears no reason to disbelieve the statement of the above witnesses as well as the evidence of the Doctor. I find that learned trial Court has rightly convicted the appellant for committing the offence under Section 304 Part II of the I.P.C. holding that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts. At this stage, learned counsel for the appellant urged that if this Court finds the appellant guilty under Section 304 Part-II of the I.P.C., then a lenient view may be taken in reducing the sentence awarded by the trial Court. 14. So far as jail sentence of 5 years rigorous imprisonment awarded by the trial Court under Section 304 Part II of the I.P.C. is concerned, the appellant has already undergone the jail sentence for a period of more than 2 years, and therefore, I am of the view that jail sentence suffered by the appellant would meet the requirement of justice. Thus, the substantive sentence of 5 years rigorous imprisonment is reduced to the sentence which the appellant has already undergone, thereby the appellant is sentenced to 2 years 3 nionths. 15. In the result, the appeal is partly allowed. Conviction of the appellant under Section 304 Part II of the I.P.C. is affirmed. However, the substantive sentence is reduced to the sentence already undergone by the appellant. The appellant shall be set at liberty forthwith. Sd/- R.L. Jhanwar Judge