@ APPELLANT (In Jail) ; a “f HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. A. No. 325 OF 2006 Albert Kerketta, son of Manrakhi Uraon, aged 56 years, resident of Village Amgaon, P.S. Lundra, District Sarguja (Chhattisgarh), Muris alias Moris Kerketta, son of Albert Kerketta, aged 31 years, resident of Village Amgaon, P.S. Lundra, District Sarguja (Chhattisgarh). VERSUS ‘PONDENT State of Chhattisgarh, Through Station lncharge, P.S. Lundra, District Sarguja (Chhattisgarh). APPEEAL UNDER SECTION 374 OF CODE OF CRIMINAL PROCEDURE, 1973. (SB :Hon’ble Mr. T.P.Sharma,> J.) Present:— Shri Pankaj Agrawal, Advocate for the appellants. Shri Sushil Dubey, G.A. for the State/respondent. GRAL JUDGEMENT ' (Passed on 9/7/2009) 1. This appeal is directed against the judgment of conviction and order of sentence ated 1/4/2006 passed by the 3rd Additional Sessions Judge (F.T.C.) Ambikapur, District Sarguja in Sessions trial NO. 311/2005 whereby learned 3rd Additional S‘essions Judge after holding the appellants guilty for the offence punishable under Sections 304(ii) read with Section 34 of the Indian Penal Code and sentenced Rligorous Imprisonment for 10 years and fme of Rs. 200/- to appellants and also convicted the appellant NO. 1 Albert Kerketta under Section 323 of the Indian - Penal Code and sentenced Rigorous Imprisonment for 5 months. ’2; Brief facts of the case are appellant NO. 2 is a son of appellant NO. 1 deceased ' Dustin was brother of appellant Muris and son of appellant Albert. On 8/7/2005 at about 10 p.m. appellant Albert was beating his wife Mariyam at that time deceased w i a} -L, Dustln came to mtervene then Albert assaulted Dustln by 1ron plpe Appellant Mums also came and he assaulted deceased Dustm by club Dustm fell down and l l d1ed same day Marg 1nt1mat1on was recorded V1de Ex P 2 Mother of the deceased 1 e PW2 Marlyam lodged the F1rst Informat1on Report on same day V1de 3 EX P-3. At the instance of Mariyam spot map prepared vide Exs. P—l & P-3. quest Over the body of deceased prepared vide EX. P-lO. Registered Marg a I intimation was recorded vide EX P-12 and numbered First Information Report was prepared‘vide Ex Rtlf3 Mariyam was also examined by doctor vide EXP-27 and found 3 1nJury Dead body of Dustin sent for autopsy V1de EX—P-S Autopsy was conducted by Dr B L Tulabi PW9 V1de Ex P 26 death was due to hemorrhage and shock and nature was homicidal. Appellant Muris made discloser statement of 1 stick vide EX.P-5. Stick was recovered at the instance of Muris vide Ex. P-7. Appellant Albert also made discloser statement of iron pipe Vide EX. P-6 same was recovered at the instance of appellant Albert vide EX. P—8. Plain and blood stained soil was recovered from the spot vide EX. P-ll. Statement of the witnesses W recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the code). Articles were sent for chemical analyses. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Vb Ambikapur who in turn committed the case to the Court of Sessions. Learned Additional Sessions Judge received the case on transfer. 3. In order to prove the guilt of the appellants prosecution has examined as well as 10 witnesses. Statements of the appellants recorded under Section 313 of the code in which they denied the circumstances appearing against them, false implication and innocency is claimed. Appellants had also examined defense witnesses Pinki alias Biml‘a who has deposed deceased Dustin used to prepare liquor in his house t r r3“ quarrel took place between appellant Albert and his wife Mariyam then Mariyam called deceased Dustin who came along with his wife at that time he was holding stick and tried to assault the appellant Albert with the stick Albert called the appellant Muris for help and save. Appellant Muris came he tried to intervene. Dustin assaulted Albert over his head during the course of investigation Muris i tlected one injury by stick to Dustin then Muris and Albert went away wife of th Dustin namely Sushila took the Dustin in her room. but she did not took him at e hospital for treatment. After affording the opportunity of hearing learned i Additional Sessions Judge convicted and sentenced the appellants aforementioned. r 4. Shri Pankaj Agrawal, Advocate for the appellants and Shri Sushil Dubey, G.A. for the State/respondent are heard. 5. Judgment impugned and record of court below perused. 6. Learned counsel for the appellants submits that even according to the case of the prosecution present appellant has not caused any injury to deceased Dustin intentionally or knowingly that , they will cause the death of Dustin. This is a case causing injury on sudden provocation and case of free fight. Appellant Albet was quarrelling with his wife at the time of incident all of a sudden Dustin came and tried to assault Albert then the quarrel took place and both the parties [12; assaulted each other. After the incident Dustin was alive but in absence of medial aid he died. Learned counsel for the appellants further submits that they are in custody since 10/7/2005 and they completed 4 years of the sentence. Excessive ‘ sentence has been awarded to the appellants. 7. On the other hands, learned counsel for the respondent/State submits that court below has rightly convicted and sentenced the appellants considering the nature of injury and weapon used by the appellants. . LI? /5 ~/ intervene the quarrel and save her mother the present incident took place both the appellants assaulted deceased Dustin. The peculiar facts of the case shows that it was not expected by the appellants or deceased Dustin about the commission of such act the incident took place in heat of passion and during quarrel it was not a case of prosecution that present appellants deliberately provoked PWZ Mariyam r calling Dustin then present appellants intentionally caused the vital injury to te deceased. The incident took place suddenly when Dustin came to intervene e *t shows that appellant have ‘not caused any injury to the Dustin with intent to cause his death. During£ the course of quarrel and heat of passion theyrassaulted over his vital part shows that at least they having knowledge that as a result of injury i Dustin may die. l2. After appreciating the evidence available on record learned Additional Sessions Judge has convicted the appellant for the offence punishable under Sections 304 Part II read with Section 34 of the Indian Penal Code and also under Section 323 of the Indian Penal Code to appellant Albert. The conviction is basted on clinching and credible evidence sustainable under the law. As regard the question of sentence is concerned in absence of intention and the special peculiar facts of the case that. incident took place in family dispute the sentence of rigorous (5" imprisonment for 10 years under Section 304 Part-II of the Indian Penal Code requires reconsideration. . For the foregoing reason appeal is partly allowed. The conviction and sentence of Appellant Albert under Section 323 of the Indian Penal Code is hereby maintained. Conviction of both the appellants for the offence punishable under l Section 304 Part —II is also maintained but the sentence of Rigorous Imprisonment for 10 ears and flne of Rs. 200/— is modified and reduced to Rigorous y \ p