Shri Satish Verma co'unsei for the applicant. Shri Rajesh Ranjan Sinha PL for the respondent. CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF ‘ CRIMINAL PROCEDURE ORAL JUDGMENT (‘11 8.2008) 1. This appeal is directed against the judgment of conviction and order of sentence dated 23.1.2006 passed by the Additional Sessions Judge (FTC) Bilaspur, in Sessions Trial No. 289/2005 whereby the appeiiant has beera'e". convicted for the offence punishable under section 304 Part ll of the IPC and ‘ sentenced to undergo rigorous imprisonment for 10 years and pay fine of R5500 in default of payment of fine to further undergo R! for one month. 2. The judgment of theirial Court is challenged on the ground that without there being any evidence available on record against the accused/appellant that with prior intention or knowledge he assaulted the deceased, learned trial Court has committed an illegality in convicting and sentencing the accused/appellant as mentioned above. 3. Case of the prosecution in brief is that on 26.7.2005 at about 1 pm. the accused/appellant went to the tea stall of Raju (since deceased) and while taking tea he saw some fly in. the tea. On thislhe used filthy language to the deceased and also assaulted him with hand and fist. Deceased fell down and was shifted to the hospital. FIR EX. P-7 was lodged. Later Raju succumbed to the injuries sustained by him. Meg intimation EX. P42 was recorded. After v " \e'b w?) HIGH COURT OF CHHATTISGARH AT BILA$PUR [$B: Hon’ble Mr.T.P.Sharma,J:! \“7 Criminal Appeal No. 95 of 2005 APPELLANT Vikky alias Gautam Jadhav, aged about 18 years, S/a Umesh Jadhav, Rio Kududand, Ponce Station CMI Lines, District Bilaspur‘ CG. VERSUS REsPONDENT State of Chhattisgarh through Civil Lines, @a‘' $% Police Station; District Biiaspur, CG summoning the vwtnesses Inquest report EX P 15 was prepared on the body of deceased Thereafter dead body was sent to CIMS Bilaspur for post mortem exammatron. Dr Way Kumar Ven'na (PW-2) conducted the post mortem examination and vide his report Ex. P41 noticed the following injuries: i Three abrasions J ‘ust below the ri9 ht eYe in the dimension of V2 X ’x’z", 1 X 1/2” and 1/2 X 1/4”: (ii) irregular contusions on the right side of the chest, (iii) Swelling and redness in scrotum was there. Qn internal examination fifth rib was found fractureo there was one orifce in S the right lung Cause of death Was shook as a result of exceseive hen‘orrhage andyte injuries were ante mortem in nature 4. After recording the statements of the witnesses under section 161 of the Code, the charge sheetrwas filed in the court of Additional Chief Judicial Magistrate Bilaspur who in turn committed the court of sesSions from where ~ learned Addttionai Sessions Judge received the same on transfer for trial 5. in order to prove the guilt of the aocusedlappeilant the prosecution has examined as many as 10 witnesses Statement of the accused/appeliant was also recorded under section 313 of the Code of Criminal Procedure, in which he denied the material against him in the prosecution case and pleaded innocence K and false implication in the case. 6. it is argued on behalf of the accused/appellant that the evidence adduced by the prosecution shows that there was some scuffie between the deceased and the accused/appellant on account of presence of fly in the tea and the appellant assaulted the deceased by hands and fists. Accused/appellant did not use any weapon, there was no previous enmity and that the incident took place as a result of presence of fly in the tea. According to the counsel for the accused/appellant, at the worst, the act of the accused/appellant is punishable under section 323 or 325 of the lndian Penal Code. 3' —_ 7. On the other hand learned counsel for the respondent/State supported the judgment of the triak Com. 8. ln order to connect the accusedfappellant with the crime in question the prosecution has adduced ocular and medical evidence, Sharda Bai PW-3, Rahul Das PW-4 who is a hostile witness, Pumima PW-S, Kunwarkali PW-7 and Kavita PW-8 have stated in their statements that the deceased was running a tea stall, accusedlappellant went to the said tea stall for taking tea and while taking tea he saw some fly in the tea as a result of which the quarrel ensued between the accused and the deceased and in the said quarrel accused/appellant assaulted deceased Raju, When Raju fell down, he was shifted to the hospital where he was declared dead. Dr. Vijay Kumar Verma PW—2 who conducted the post i mort‘em examina‘tiOn on the body of deceased, has stated that on 26.7.2005 he g conducted the post mortem on the body of the deceased and found the injuries as mentioned above and cause of death was shock due to excessive hemorrhage. Thus the homicidal death of the deceased is established. s. ‘é‘ 9, As regards the complicity of the accused in the crime in question, Sharda Bai PW—3, Rahul Das PWA who is a hostile witness, Purnima PW-6, Kunwarkali PW-7 and Kavita PW—8 have stated that on account of presence of fly in the tea, scuffle started between the accused and the deceased and the accused assaulted the deceased by hands and fists as a resuit of which he fel! down. According to the statement of Sharda Bai PW~3, after shifting her brother in law to the hospital she along with one Phukali, went to the police station where she was informed by one Ghanshyam that Raju was dead. 10. From the evidence of the witnesses it appears that the accused/appellant assaulted the deceased over his chest with hands and fists with in intention to i cause death as a result of which he feil down and died within few hours. While causing injury over the chest of the deceased with force he was having . l ‘ knowledge that his act may cause the death of Raju. Thus, the act of the accused of assaulting the deceased squarely falls within the ambit of section 304—l and not under section 304-“ of the IPC. 11. After appreciating the evidence available 0n record, Ieamed tria! Court has convicted the accused/appeilant for the offence punishable under Section 304-” of the lndian Penal Code and sentenced to undergo RI for 10 years and pay fine of Rs. 500/-, in’default of payment of fine to further undergo R1 for one month. The trial Court has not considered the evidence that there was no previous enmity between the accused and the deceased nor there was any prior intention on the part of the accused to cause grievous injuries to the deceased, but it was on the spur of moment due to fall of fiy'in the tea, quarrel between the two erupted and suddenly the accused assaulted him by hands and fists. Thus the conclusion arrived at by the trial Court is erroneous warranting interference tr tom this Court. 1g. Accordingly, the conviction and sentenced imposed upon the accused/appellant for the offence punishable under section 304-“ IPC is not sustainable and therefore, it is set aside. instead, he is convicted for the offence punishable under section 304-l IPC and sentenced to undergo Rl for 5 years 13. Appeal is thus partly allowed. Ln“ ' f >