_z^ IN THS HZGH COURT OF JUOrCXTURS AT JABALPUR, J-.ip, Q^2^n^J^^J_uo.^A4&^2000 . APPELLA:!5T Mlluram S/o. Charka, aged about 35 years, Occupat.i.on agrlculture R./O. Village- Amgaon, PS-Jainagar District- Sarguja, I'-IP. •Versus- N0" APPLICAHT RESPONDSmT' The State of H.P. through P3- Jalnagar Dlstrict' Sarguja, MP. RIMINAL AFPEAL U/S. 374(2} OF THS COD3 OF CRIKINAL PROCEDURB-1973. !B' ^' SBfes f1'3'" CRIMINAL PBAL N0.2240 OF 2000 Miluram V_S^ The State of M.P. (Chhattisgarh). JUDG M E NT > IN THE HIGH. COURT OF CHHATTISGARH : BILASPUR. CRIMI L AEPEAL N0.2240 OF 2000 Miluram Y_s. The State of M.P. (Chhattisgarh). J U D G M E N T The appellant being aggrieved by the judgment ot conviction and sentence recorded and awarded to the appellant by the learned Additioaal Sessions Judge, Surajpur in Sessions Trial No.217 of 1999 delivered on 17/8/2000 holding -the appellant guilty for oSSen.ee punishable under Section 304 Par't-II I.P.C. sentencing him to undergo R.I. £or seven years and to pay a fine of Rs.500/- aas filed this appeal. (2) The prosecut.i.on case in brief is that the appellant taking an exception to the acts o.C one Sukhanrain, at about 5.00 P.M. on 25/4/1999 started beatiug t'ae deceased with kicks, fists and stick. The deceased. fell on tbe ground and on intervention of some of tbe villagers the deceased couid be saved. Inuaediately thereafter the report ifas lodged arm. said' Sukhanram was sent to tbe hospital for medical assistance. Though proper treatment was provided to him but unfortunately the deceased died. The said Sukhanrani died on 8/5/1999. Ttie cause of death according to the doctor was ruptureC^o.f tbe lung as 8th rib had pierced the lung. After completing the investigation tbe police agency filed the challan. As the accused denied commisslon o£ the offence the accused was put to trial. After recording the evidence and hearing the parties the lEar&ed trial Court convicted the accused and asiarded the sentence as ae'tailed above. \^ (2) (3) Shri Sunil Sinha, learned counsel for the appellant, submits that present is not a case of pre-determination ss^ nor the facts show tbat the accused was armed with any weapon. According to bim the prosecution has brought on the record that the deceased was armed witb a Lathi.and on a trivial matter the accused started beating the deceased after snatcbing the lathi of the deceased. He submits that under these circumstances it cannot be held -that the accused had the intention to commit murder o£ the deceased or to commit the culpable homicide not amounting to murder. He furthe.r submits that the Court below was unjustified in awarding such barsh seQtence. He also submits that even i£ everything is taken to be correct tben too an olfeace beyond Section 325 I.P.C. i/ould not be made out and the accused deserves to be released on the sentence already undergone by him. On the other hand, learned counsel £or the State Shri Praful Bbarat submits that the manner in vtiich the present appellant had earned a figbt with an old man and bit him by means ot kicks, .Eists and lathi would clearly show that the appellant bad intention to commit the murder of the deceased. He submits that tiie Court below was not unjustified in convicting the appellant and awarding the sentence. w I have heard the parties at length, (5) PV.t Tubobai, PW-2 Samudribai and PW-5 Jugeshwar all have turned hostile. They have not supported the prosecution' case. PW-4 Santosh though in bis examination-in- chie-E stated that the accused used a lathi in the said incident but in paragraph 5 of his statement he was forced to ^rw^ ^<^<A-^*J^ admit that the/accused fa^Eused the lathi was not traceable in his case-diary statements. PW-5 Shivratan has also stated that the accused had used a lathi. Siailar is^fche statements '^ •K (3) of PW-6 Nbharsai and PW-7 Dhurandhar. (6) Accord.i.ng to the prosecution witnesses the accused was taking an excepfion to tlie conduct of the deceased because the accused was o£ the opinion that because ot tfae intervention of the deceased a village pond was being dug on tiis land. (7) E'roiB the statements o£ the prosecution witnesses it does not appear tbat they are tryiug to falsely implicate the accused or fix him.'L Ttie-'efflurt below was certainly justiiied in holding tjaat tbe accused was author of the injury:on the person of the deceased. (8) Tbe question £or consideration still would be whether the accused was rightly held guilty for cffence punishable under . Section 504 Part-II I.P.C.. The injury report of the deceased is Ex.P/11. According to the said report the deceased had suffered one visltol.e- injury on the back of tbe calf and was making complaint of pain on the back o£ the chest but there were no marks of injuries on the back ot the chest. After the death of said Sukhanram the post-mortem was conducted by PW-9 Dr. Banshi Mohanlal Shrestha. His report is Ex.P/9. In his repor-t he has recorded that the deceased had suf.fered fracture o£ 8th rib and the .fractured rib had caused laceratioa in the right lung. According to the doctor as the right lung bad suffered pupture the deceased bad died. (10) Froa the evidence available on the~~:E'ecor d it simply appears that tbe accused taking an excep'tion to the conduct of the deceased had beaten him. The doctors;sAy that the deceased faad su.ffered two injuries; one on the back of the cal.f. and the otber on the back o£ the chest. ^ndisputedly, a (4) lathi vas used.c®•'BAS. (tecsa^ssd-wae ]((jA.lte&. O.n tbe basis of this evideuce it cannot be taeld that eitfler the accused had the intention to cause injury wtiicb was likely to cause deatU or had tbe knowledge ttiat by his act the deceased. m»ytfdie. From tlle attending circumstances tbe legal infeteBce orily would be that the accused wanted to cause some grievous icjury to the deceased. (11) The totality of. the circumstances show that the accused had caused only two iEjuries to the deceased. In fact, there was only one visible injury and the other iiyury was even not visible. Taking into consideratlon, the evidence available on the record, tbe conduct of the accused and the medlcal report I ani oS the opinion that the Court below was not justl-Eied in coavicting tUe accused for an olfence punishable under Section 504 Part-II I.P.C.. The conviction of the appellant for otfence punisi'isble uader Section 304 Part-II I.P.C. is set aside instead he is convicted under Sectidn 325 I.P.C.. (12) Atter hearing •ttae parties on tbe auestion of sentence I am o.C tne opinion that iJ° tliree yeaTS R.I. v.'iln te- fine o£ Rs.500/- is awarded as sentence tQ the appellant, the same shall ineet the ends of justice. The seritence is accordi.iigly awarded. The appeal to tbe extect indicated above is partly allowBd. .Sd/- R.S. Garg Judge —o9/x>2./2:oo). - .-l^