ssags® HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.747 of 2007 APPELLANT: (In 3ail) RESPQNDENT: Jaishri Ghasi, S/o Maujan Ghasi, aged about 42 years, Caste Ghasi, Occupation Agriculture, R/o Village Harri, Police Station Kusmi, Distt. Surguja (C.G.) Versus State of Chhattisgarh, Through the Police Station Kusmi, Distt. Surguja (C.G.) {Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Vimal Tondey, counsel for the appellant. Mr. Sushil Dubey, Govt, Advocate forthe State/respondent. SJnale Bench: 1-ion'ble Mr. T,,PLSharma,^l ORAL 3UDGMENT (2-9-2009) 1. This appeal is directed against the judgment of conviction & order of sentence dated 27-6-2007 passed by the Sessions Judge, Surguja in Sessions Trial No.393/2006, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of the offence of culpable homicide not amounting to murder, convicted him under Section 304 Part-I of the I.P.C. and sentenced him to undergo R.I. for ten years & pay fine of Rs.1,000/-, in default of payment of fine tofurther undergo R.I. for onemonth. 2. Judgment of conviction & order of senfence is challenged on the ground that without any proof of intention or knowledgeof causing such homicidal death, conviction & sentence of the appellant under Section 304 Part-I ofthe I.P.C. are not sustainable. 3. Case of the prosecution, in brief, is that on 28-12-2005 at about 5 p.m. at Village Harri, Police Station Kusmi, Distt. Surguja, the accused/appellant caused fatal injury to his brother Rambaran Ram and as a result of such injury Rambaran Ram died. Merg intimation Ex.P-2, was recorded and on the basis of merg intimation, F.I.R. £x.P-1 was registered, Inquest over the dead body of deceased Rambaran Ram was prepared vide Ex.P-9. Spot map was prepared vkle Ex.P-10. The dead.body was sent for autopsy vide Ex.P-SA and autopsy was conducted by Dr. T. Sai' (PW-4) vide Ex.P-5. One ^ ^: 2 lacerated wound over frontal area of head in the size of 6 cms. x 5 cms. was found. On internal examination fracture of frontal bone and torn of membraneof brain was found. Cause of death was coma as a result of excessive haemorrhage. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. and after completion ofinvestigation, charge sheet was filed before the Judicial Magistrate First Class, Ambikapur,. 4.1norder to prove the guilt of the appellant, the prosecution has examined as many as eight witnesses. Examination of the accused was conducted under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleadedinnocence & false implication. After affording opportunity of hearing to the parties, learned Sessions Judge convicted & sentenced the appellant in the aforesaid mann^r. 5. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. 6. Learned counsel for the appellant vehemently argued that this is a case of homicidal death of the brother of the appellant which the appellant has not caused. The prosecution has not adduced any evidence to show that the appellant has caused fata! injury with knowledge or intention to cause the death ofthedeceased. 7. On the other hand, learned State counsel supported the judgment and submitted that the prosecution has proved the case beyond all reasonable doubts. 8. In order to appreciate the contentions of the parties, I have examined the evidence available on record. 9. Eyewitnesses of the incident Rampati Ram (PW-2) & Ram Lakhan (PW-3) - brothers of the appellant & the deceased have deposed that at the time of incident village meeting was going on and both the brothers i.e. the appellant & the deceased quarrelled for some money dispute, the accused took the wooden club and assaulted over the head of the deceased as a result of which the deceased immediately fell down and became unconscious, lastly he died. Makhal (PW-1), another brother ofthe appellant& the deceased, has deposed that he came to know that Rambaran Ram was assaulted by -the appellant on which he went to the Police Station and lodged F.I.R. and mergintimation vide Exs.P-1 & P-2. Dead body was sent ^'' for autopsy and bloodstained soil & plain soil were seized vide Ex.P- 3. Dr. T. Sai (PW-4) has deposed that he has conducted autopsy on the dead body of Rambaran Ram and found one lacerated wound over frontal region, fracture of frontal bone and laceration of brain membrane vide Ex.P-5. Cause of death was coma as a result of excessive haemorrhage. lO.Evidence of the aforesaidwitnesses is sufficient for drawing inference that the accused is the person who has caused injury over the head of his brother deceased Rambaran Ram and as a result of such injury, Rambaran Ram died. ll.After appreciating the evidence available on record, learned Court below has convicted &'sentenced the appellant under Section304 Part-IoftheI.P.C. ? l2.Evidence adducedon behalf of the prosecution clearly reveals that both the brothers were present in the meeting and during the course of meeting there was some dispute of money between them. Rambaran Ram blamed the accused/appellant that he has not given contribution since last one year. The appellant & the deceased quarrelled with each other and during the course of quarrel the accused took out one wooden club and caused injury on the deceased. This shows that both the brothers were present in the meeting to resolve some problem, but suddenly they quarreled with each and during the course of quarrel both the persons tried to assault each other, the appellant took out the wooden club from the spotand caused one injury over the head of the deceased. This evidence shows that the appellant has not caused any injury with intent to cause homicidal death of the deceased, but has suddenly caused injury over the head of the deceased. The act of the appellant does not travel beyond the scope of Section 304 Part-II of the I.P.C. The Court below has convicted the appellant under Section 304 Part-I of the I.P.C., but has not considered the mitigating circumstances in which the incident had taken place. l3.For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 304 Part-I of the I.P.C. is altered into Sectjon 304 Part-II of the I.P.C. Sentence of R.I. for ten years & fine •of Rs.1,000/- are reduced to R.I. for five years &fine of Rs.1,000/-, in default additional R.I. for one month. T.P. Sharma Judge