-m^^ HIGH COURT OF CHHATTISGARH AT BiLASPUR Divisipn Bench: @ :'--» \ CORAM: HON'BLE MR.T.P.SHARIVSA & HON'BLE MR.R.L.JHANWAR, JJ. Appetjant (In Jail) Respondent Appellant (In Jai!) Resoondent Crimmal Appeal No.41 of 2005 Ripta S/o Aglu Nagesiya, aged 25 years, Oa^upation Agriculturist, R/o Village Bhedmi, Police Station Balrampur, District-Surguja (C.G.) Versus State of Chhattisgarh, through Station House Officer. Potice Station Balrampur, Distt.Surguja (C.G.) And Criminal Appeal No.lSS of 2005 Smt. Jaso Bai Nagesiya, D/o Bidiyus Uraon, aged 35 years, Occupation Labour, R/o Vlllage Bhedmi, Poiics Station Bairampur, Dlstnct-Surguja (C.G.) Versus State of Chhattisgarh through Station House Officer. Police Station Balrampur, Distt.Surguja (C.G.) (APPEALS UNDER SECTION 374 (2) OF THE Cr.P.C.) Present- Mr.Abhijit Sarkar, counsel for the appeliants. Mr.Sandeep Yadav, Dy.Govt.Advocate forthe State. JUDGSVtENT (ORAU (Passed on 20th January. 201 1) T.P-Sharma, J.:- 1. Criminat Appeais No.41 of 2005 and 155 of 2005 are arising out of the judgment of convtetion and order of sentence dated 31.12.2004 passed by the Second Additionat Sessions Judge, Ambikapur in Sessions Trial No.386/04, therefore, they are being disposed of by this common judgment. \- !N^^ia i » 2. Challenge in these appeais is to the judgment of conviction and order of sentence dated 31.12.2004 passed by the Second Addstionai Sessions Judge, Ambikapur in Sessions Trial No.386/04, whereby & whereunder tearned Second Additionai Sessions Judge after holding the appeitants guilty for murder of Chaiittar in sharing common intention convicted them under Section 302 or 302/34 of the I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each, in defauit of payment of fine to further undergo R.l. for five years. Entire fine of Rs.50,000/- has been awarded as compensation to wife of deceased Chalittar. 3. Convictson is impugned on the ground that without there being any sota of evidence, the triai Court has convicted and sentenced the appellants as aforementioned and thereby committed. 4. As per case ofthe prosecution, on the fateful day of 21.6.2004 at about 2.30 p.m. one Algu became unconscious in the house of Chaiittar which was informed to the present appeltants, then they came to the house of deceased Chalittar and took Algu, thereafter, they daimed upon the deceased relating to witchcraft and assauSted him, thereafter, they cSragged the deceased near hand-pump and poured 4-5 buckets dirty water upon him, deceased Chatittar became unconscious and thereaftsr he died. F.i.R. was iodged by Tiidev Ram Nagesiya (PW-1) vide Ex.P/1. Merg was recorded vide Ex.P/2. tnvestigating officer proceeded for the scene of occurrence and after summoning the witnesses Ex.P/3, inquest over dead body of Chaiittar was prepared vide Ex.P/4. Spot map was prepared by patwari vide Ex.P/5. investigating officer atso prepared spot map vide Ex.P/6. Dead body was sent to Government Hospital, Bairampur vide Ex.P/15 where Dr. P.L.Verma (RA/-11) conducted autopsy vide Ex.P/20 and found one iacerated wound over right eyebrow of 1 x V2 cm. up to bone deep. Dirty water mixed with sand was found inside trachea and stomach. Case of death was probabiy asphyxia. 5. Statements of the witnesses wsre recorded under Section 161 of the Cr.P.C. and after compietion of investigation charge sheet was fjied before the Court of Judiciai Magistrate First Ctass, Ramanujganj, who in turn committed the case to the Court of Sesssons, Surguja, from where P'N'NINIIN^ iearned Second Additional Sessions Judge, Ambtkapur received the case on transfer for triai. 6. in order to prove the guiit of the accused/appeliants, the prosecution examined as many as eieven witnesses. Statements of the accussd/appeilants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and ciaimed innocence and faise implication in the crime in question. 7. After affording an opportunity of hearing to the parties, learned Second Additionai Sessions Judge, Ambikapur convicted and sentenced the appeliants as aforementioned. 8. We have heard Mr.Abhijit Sarkar, counsel for the appeliants and Mr. Sandeep Yadav, Dy.Govt.Advocate for the State, perused the judgment impugned and record of the trial Court. 9. Leamed counsel for the appeliants submits that in the present case conviction is based on the evidence of Tiidev Ram Nagesiya (PW-1), Johan Nagesiya (PW-2), Muian Khairwar (PW-3), Mohan Ram Nagesiya (PW-4) and Nutan Kispota (PW-5) who have seen the incident. As per case of the prosecution, on the ground of witchcraft the present appellants annoyed and caused one single injury over left eyebrow of the deceased, thereafter they dragged the deceased near hand-pump and poured 4-5 buckets dirty water mixed with sand upon the deceased, the deceased became unconscious and thereafter he died. Learned counsel further submits that as per case of the prosecution, the present appeiiants were holdjng axe and stick and they have told that they wiil kili Chalittar i.e. the deceased, but they have not caused fatal injury by axe and stick. This shov/s that they have annoyed upon the deceased on account of his unnaturai activlty and have poured 4-5 buckets dsrty water upon the deceased, but has not caused any injury with intent to cause his death, therefore, if the evidence adduced on behalf of the prosecution <s admitted In its face value, then the act of the appeltants does not travei beyond the scope of Section 304 Part-JJ of the I.P.C. Leamed counsel contended that reiative of the appeilants i.e. Algu was found in the house of the deceased inhaied in the activity of witchcraft, in these circumstances, annoyance of the appeltants was not unnaturat and in ttie p ^ state of annoyance, pouring of water was aiso not unnaturat, but the trial Court whiie convicting the appeilants has imposed fine of Rs.25,000/- each and has awarded compensation to wife of the deceased and same is not just and reasonable. 10.0n the other hand, tearned State counsel supported the judgment impugned and submits that knowing the fact that deceased was aged about 60 years the appellants have poured 4-5 buckets dirty water upon him and he died as a resuit of suffocation by pouring such water. The appellants were having knowtedge that by their act, deceased Chaiittar may die, therefore, the act of the appeilants squarely falls within the ambit of Sectlon 302 ofthe I.P.C. and the trial Court has rightly convjcted and sentenced the appeilants as aforementioned. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12.1n the present case, unnatural death of deceased Chalittar has not been substantially disputed on behalf of the appeiiants. on the other hand, also established by the evidence of Dr.P.L.Verma (PW-11) and autopsy report Ex.P/20 which reveals that cause of death was asphyxia virtually as a result of dirty water and sand inhaled by him. Death was homicidal in nature. 13.As regards the complicity of the appellant in the crime in question, conviction is based on the evidence of Tiidev Ram Nagesiya (PW-1), Johan Nagesiya (R/V-2), Mulan Khairwar (PW-3), Mohan Ram Nagesiya (PW-4) and Nutan Kispota (PW-5) who have clearty deposed that the appellants assaulted the deceased, dragged him near hand-pump and poured 4-5 buckets dirty water upon him. Presence of dirty water and sand in trachea corroborate the evidence of the aforesaid witnesses. Defence has cross-examined these witnesses at iength, but has not been able to eiicit anything in their cross-examination to discredit their evidence relating to the aforesaid fact that the appellants have not dragged the deceased and have not poured dirty water upon him. ^^... ® 14.Evidence of these witnesses coupied with medicat evidence reveai that the appeliants have poured 4-5 buckets dirty water upon 60 years aged oid person which inhaled dirty water and sand and died as a result of suffocation. Definitety, the act committed by the .appellants is not just, proper and natural, but it is difficult to hold that the appelSants have poured dirty water with intent to cause death of the deceased. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have caused homicidal death of the deceased, but have not caused injury with intent to cause his death; therefore, the act of the appellants does not travel beyond the scope of Section 304 Part-11 ofthel.P.C. 15.Whiie convicting the appeilants under Sections 302 or 302/34 of the I.P.C., the triai Court has not considered the aforesaid aspect and thereby committed iilegaiity. 16.Forthe foregoing reasons, Criminai Appeal No.41 of 2005 fiied on behalf of appellantRipta and Criminal Appeal No.155 of 2005 fiied on behalf of appellant SmtJaso Bai Nagesiya are partly atlowed. Conviction & sentence ofthe appeilants under Sections 302 or 302/34 ofthe 1 P.C. are hereby altered to Section 304 Part-tl of the I.P.C. 17.As regards the question of sentence, reiative of the appeilants who was lying unconscious in the house of the deceased which gives cause of annoyance and commission of aforesaid offence. Considering the mitigating circumstances, sentence to the period already undergone i.e. since 23.6.2004 till today, for about 6 years and more than 5 months would be sufficient sentence to the appellants under Sections 304 Part-11 of the I.P.C. and considering the circumstances in which they have poured such dirty water, fine of Rs.25,000/- each as compensation to wife of the deceased is unjust, therefore, the appeitants are hereby sentenced to the period aiready undergone i.e. since 23.6.2004 til! today. They be released forthwith, (f not required in any other cases. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge B/-