@g CORAM: HON’BLE SHRI RAJEEV GUPTA, C.J. 8t HON’BLE SHRI SUNIL KUMAR SINHA, J. Criminal Aggeal No. 690 of 2003 ‘ Bishun @ Vishnu Uraon Vs. State of Chhattisgarh W3 ‘ JUDGMENT For consideration /—// , Sunil Kumar Sinha Judge ,k Sdl- HON’BLE SHRI JUSTICE RAJEEV GUPTA \9 Post for Judgment : 2f/ 08/‘2’029, \ Sd/- ’ J‘Il’d’g‘e 7 M z9 /08/2009 HIGH COURT OF CHHATTISGARH, BILASPUR Apgellant HON’BLE SHRI RAJEEV GUPTA C.J. 85 HON’BLE SHRI SUNIL KUMAR SINHA, J. CORAM: s/o Bishun @ Vishnu Uraon, Jang Sai Uraon, aged about 34 years, Distt. Appearance: Following judgment of the Court was delivered by Sunil Kumar Sinha, J, I 1 ‘ ‘ \ ‘ Criminal Agpeal No. 690 of 2003 Occupation agriculture, R/o Village, Jokpani ~1Parpatiya), RS. Kamleshwarpur, Sarguja (Chhattisgarh) Versus State of Chhattisgarh u Respondent Mr D N Prajapati counselfor the appellant. Mr Ash1sh Shuk1a Govt Advocate for the State JUDGMENT (19082009) i(1) Appellant Bishun @ Vishnu Uraon stands convicted u/ s 302 IIPC and sentenced to undergo imprisonment for life and to pay lfine of Rs IOOO/- 1n default of payment of fine to further undergo IRI. for six months by the First Additional Sessions Judge, Surguja (Ambikapur) 1n Sessions Trial No.73/2003 on 25th of Aprn, 2003. Q ? HIGH COURT OF CHHATTISGARH, BILASUR jAPPEAL UIS 374 {2l OF THE CODE OF CRTMINAL PROCEDURE! 2 @@ , Criminal Apgeal No.690 2003 (2) The facts, briefly stated, are as under:— On 05 ll 2002 at about 6 p m Deo Sal (smce deceased) hls W1fe TlJo Bal (P W 5) Jalprakash (P W 6) and Manlram (P.W.7) were gomg to the house of Mamram They were stopped on the way by Ledoram (P.W.4) who offered them to take Hadiya (home made liquor) in his house. On this, all the above persons went to the house of Ledoram. The allegations are that when they were sitting in his house, the appellant came there with a “Geda” (a piece of ~woo_d) and gave a blow on the head of the deceased. The deceased died in the house of Ledor’am. On the information given by Ledoram (P.W.4), a (EX.P.5) was recorded on i. 06.11.2002. A merg intimation (EX.P.4) was also recorded, based on which, the first information report EXP—14 was registered. lAfter giving notice (EX.P.8) to the Panchas, inquest (EXP—9) on the body of the deceased was prepared. Blood stained soil, plain soil and blood stained mat were seized from-the place of occurrence under EX.P.10. Site plan was prepared under EX.P.7. Another site plan was prepared by Halka Patwari under EX.P.3. Geda (Danda) and Lungi having blood like stains were also seized on production by Jaiprakash (P.W.6) under EX.P.6. The dead body of the deceased was sent for its postmortem to Community Health Center, Narmadapur under EX.P.8 where the postmortem examination was conducted by Dr. R S Singh (PW l) who prepared his report EXP—1. He noticed a depressed fracture on the skull havrng extra— l dural hematoma on left parietal region. The autopsy surgeon opined that the said injury was caused by hard and blunt object and 1t was ante mortem 1n nature He further op1ned that the cause of death was Coma due to head 1nJury and 1t was hom1c1dal in nature. v Dehati Merg Intimation 3 @ Criminal Appeal No.690 2003 The seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, under EXP-15 but the F.S.L. report could not be produced. After completion of usual investigation, the charge— v" Y sheet wasrifiled in the Court of Judicial Magistrate, First Class, Ambikapur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge Ambikapur, who conducted the trial and convicted and sentenced the accused / appellant as aforementioned. VT (3) The conviction of the appellant isgbased upon the eye 4 witness accountiof Ledoram (P.W.4), Tijo Bai (P.W.5), Jaiprakash (P.W.6) and Maniram (P.W.7), corroborated by the medical evidence of Dr.R.S. Singh (P.W.1). (4) Mr. D.N. Prajapati, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of .the deceased. More over, it comes in the evidence of Ledoram (P.W.4), ’I;‘ijobai (P.W.5), Jaiprakash (P.W.6) and Maniram (P.W.7) that the deceased was assaulted by the appellant by a Danda, who rleceived injury on his head and succumbed to the said injury. The autopsy surgeon also noticed one depressed fracture on the skull of the deceased and opined that the cause of death was fx l . l , doma due to head injury and it was homicidal in nature. l (Jjl‘herefore, it was established that the death of the deceased was homicidal in nature. @9 Criminal Appeal No.690 2003 (5) Mr. D.N. Prajapati has also not disputed the Cbmplicity of the appellant in crime in question. He has argued that the manner in Which the assault was made and the weapon which was used for causing assault and that a single blow was given by the appellant would show that the appellant was having no intention to cause death of the deceased, therefore, he would not be liable for punishment u/s 392 IPC and he may be punished u/s 304 Part—II IPC. $‘f i (6) ‘ On the other hand, Mr. Ashish Shukla, learned Govt. Advocaté appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (7) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (8)V Ledoram (P.W.4) deposed that they were sitting his house along with the deceased. The appellant came there having a Danda in his hand and gave a blow on the head of the deceased. Ali’nost similar evidence has been given by the other eye— l wiltnesses. Therefore, the complicity of the appellant cannot be denied. The seizure memo of Danda (EX.P.6) would show that it was of the length of 2 hands 8a 8 fingers (about 3 ~ 3 1/2 feet). This l was the weapon said to have been used by the appellant. The laberated wound caused on therskull was of the size of 2cm X OiScm x 1cm. There is no evidence of any previous enmity l = 5 Criminal Appeal No.690 2003 between the appellant and the deceased. They were the residents of the same Village. The manner in which the incident took place and the weapon which was used by the appellant, which is l commonly kept in the village by the Villagers, as also the intensity which he applied and that he did not repeat the blow even when there was no resistance by the deceased or the witnesses present there would suggest that in ‘fract, the appellant was having no intention to cause death of the deceased. However, the above we factors would‘certainly suggest that the appellant was having knowledge that‘ his such act may either cause death of the deceased or it may cause grievous injury which was likely to cause l. death of the deceased. Therefore, in the facts and circumstances of the case, we are of the considered View that the act of the appellant would be punishable under Part—II of section 304 IPC. (9} Accordingly, the. appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead thereof, the appellant is convicted u/s 304 Part II IPC and sentenced to undergo R.I. for 10 years. It is stated that the v appellant is in jail since O7. l 1.2002. He shall be entitled to set—off tliie period already undergone by him. i l l l r »~..t \ Sd/— Sdl-' Chief Justice Sunil Kumar Sinha Judge wrx /Rao/