le—78 %»t^ 3II^?T ?RT 1^'tW •tnisn^iwiw Q. 3'sq' '<ll<4l<'44, yrfl'M'Ko, Rfoi'yy (s.A.A^... an^?r WR; (licityi<^T) 'W^ 200'^ 'TCiIWdfei 311^1 APPELLA (In Jail) RESPONDENT: {Criminal appeal under| Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. Sunil Kumar Sinha, JJ 25-10-2007 Mr. Surya Kant Mishra, counsj Mr. Sudhir Bajpai, Deputy Go'] Oral judgment dictated on Dai Sunil Kumar Sinha, J: - This appeal is directed againj sentence dated 9-11-2001 passed b^ Sessions Trial No.272/2001, wheretf Section 302 of the I.P.C. and sentet pay a fine of Rs.1,000/-,-in default o^ three months. Facts, in brief, are that the de] of appellant Baisakhu. Both were rei 10-1-2001, at about 4 p.m. some qi account ofkeeping of tiles in a partii tfillfi'l'il-l 'WRff ^fe^ <I"1«;K '^3tRm-3II^?T uaisaKnu, y/o yanKu Kam, Age - 50 years, Occupation - Cultivator, R/o Mereganwa, P.S. Durgu Kondal, Distt. Kanker. ersus - State of Chhattisgarh ection 374 (2) Cr.P.C. 1973} 1 for the appellant. :. Advocate for the State/respondent. >t the judgment of conviction and order of the Additional Sessions Judge, Kanker, in y the appellant has been convicted under icod to undergo imprisonment for life and payment of fine to further undergo R.l. for ;eased namely, Baisuram was real brother |iding in a house. On the fateful day i.e. on larrel started between the two brothers on jjlar room in the house. During the quarrel, '—78 sii^i ^n R'ti'* WT 3iKW »*11'» ^_(?1 — — —..- 3SST "i)i<<i(?i<<, ^iTllyic, R|i?»iy^< Ch.,A,.l^{... an^?r ^siw (^pf^^r) •^. 2002- TCiIWtlfeT SII^I botli ttie Uiutlieia wwe mrewirtg eacjh other on the ground. ijeeing this, wife of the deceased namely, Dasri Bai (Pl who was her brother-in-law and naril rushed to the house of the decease< deceased already died. They saw! accused was sitting near the dead| matter was reported to the PoliceSt^ the first information report (Ex.P-1) N-4) went to the house of Darbari (PW-1) ated the story to him. Darbari immediately along with Dasri Bai, but by that time, the injury on the head of the deceased. The body. Other villagers were called. The ition on the next day by Darbari (PW-1) and registered. WRS fbr The Investigating Officer left\1 P-2) to the Panchas and prepar^d deceased. Bloodstained & plain soil| under Ex.P-4. After taking the accusj was recorded under Ex. P-5 and on^ memorandum under Ex.P-6. Site pla^i EX.P-7A. Another site plan Ex.P-8 Dead body of the deceased was se|it Health Centre, Durgukondal under deceased was conducted by Dr. (Srjit.) under Ex.P-9. She noticed following 1. One lacerated wound on right) size of 3 cms. x 3 cms. x 6 injury. Fracture of underlying 2, One punctured wound in the the right eye on the temporal r| The doctor opined that injur^ object. In internal examination, it w^s ^Wld^ftH ^TCT^ Tf,'fetzt ^R^R ^i-ajRw sntw the place of occurrence, gave notice (Ex. inquest (Ex.P-3) on the body of the were seized from the place of occurrence ^d/appellant into custody, his memorandym club was seized in pursuance of the said fri was prepared by the Halka Patwari under |was prepared by the Investigating Officer. for post-mortem examination to Primary fx.P-9A. Post-mortem on the body of the P. Lal (PW-5) who prepared her report (njuries on the body ofthe deceased:- jside of head just above the right ear in the ;ms. Clotted blood was present over the ()one was also seen. (ize of 1 cm. x 0.5 cm. x 3 cms. just above 'pgion. No.1 could be caused by hard & rough found that there was a fracture of right :e-78 [E^iS-i^t-'Sf^ 3ST ^l-'ll^'il, ^Tfly'Ko, Rlrtiyy ...(^.:..(a..:..^..i •W, 200 si^sr TH% (1<<f'l'<<w) <ftl<lfel^ft;t 'W^^^^ •(.fa^.K ^affinan^i 311^1 ?H1?SIW W SSSS^ **4 TOiiwoteon^i pdi'iyldl & ULUpildl Uuiiy ral tiaernorrtiage and haemotorna~Blakish blood was present. Entire area of inj internal injury was found. AccordinS was coma due to head injury and de( After completion of usual in] Court of Judicial Magistrate, First Cl| the case to the Court of.Sessions transfer by the Additional Sessipni convicted & sentenced the accused^ restigation, charge sheet was filed in the ass, Bhanupratappur who in turn committed Ju)dge, Kanker, from where itwas received on Judge, Kanker, who conducted trial and ^ppellant as aforementioned. We have heard learned coun^ Learned counsel for the appe| the deceased. Moreover, it comes) when the two brothers started quarre|ling 1) and narrated the story. When bof dead body of the deceased was lyin< near the dead body. They also foun|d evidence finds support from the e< conducted post-mortem on the bod) injuries. She gave her opinion that and the same was homicidal in natui and medical evidence, it is establis homicidal in nature. So far as complicity ofthe ac concerned, it comes in the.evidence ury was 4 cms. x 4 cms. x 6 cms. No other to the post-mortem report, mode of death ith was homicidal in nature. el for the parties. |ant has not disputed the homicidal death of in the evidence of Dasri Bai (PW-4) that I, she went to the house of Darbari (PW- |h ofthem returned back, they saw that the in the house and the appellant was sitting injury on the bodyofthe deceased. This I'idence of Dr. (Smt.) P. Lal (PW-5) who fr of the deceased and noticed the above nfiode of death was coma due to head injury i|e. Therefore, on the basis of above ocular Ihed that the death of the deceased was <cused/appellant in the crime in question is |of Dasri Bai (PW-4) that on the fateful day f- ie—78 TE^ '<<i<<ic><<, »T(1y'i<o, Ic)ciiyy< (^..:....&A^... WI. 2002^ 3(I^?T 'Wiqi ( 311^1 "Hft-lidi WISiI^I'sRiIH; '<? ?^n^R ^rf^r 3ff^T some quarrel on account of keeping brothers. Her husband (since decea) in the house which was opposed by \ started quarrelling. Looking to this, brother-in-law Darbari (PW-1), narrat< to her house. Thereafter, she return) they came to the house, they saw th| time and they also saw injury on tl) appellant was sitting there and one c| examination, she has admitted that sl(e deceased. Other witness is PW-1 namell that on the fateful day at about 4 p.i about the quarrel between the two b| house. When he reached to the deceased was already dead by that) deceased. Brain matter was comingl examination, he says that Dasri B^ii assaulted the deceased with clufcl Sarpanch Dashrath etc. were called Police Station: Durgkondal vide Ex.P) that both the brothers were residing t| in between the two brothers. He hasl what was the reason for quarrel, on tl) Therefore, from the evidence] transpires that the quarrel began t( 7 ^it^Pft'l llIR^f^fet3t t^t'^l^ i;3lfOT 311^1 tiles in the house began between the two ^ed) was keeping tiles in a particular place ihe appellant and on this, both the brothers phe immediately went to the house of her ^d the story to him and asked him to come ted to her house along with Darbari. When pt the deceased was already dead by that le head of the deceased. The accused/ ub (Kotela) was also lying there. In cross- had not seen the acoused assaulting the /, Darbari. He has stated in his evidence p. Dasri Bai (PW-4) came to him and told Lothers and she asked him to come to her house of the deceased, he saw that the time. He saw mjury on the head of the out from the head injury. In para 2 of his (i (PW-4) told her that the accused has Thereafter, village Patel Panduram, land then the report was lodged by him in h1.. In cross-examination, he has admitted pgether and there was no previous dispute further stated that he does not know as to ie fateful day. ,of these two witnesses (PW-1 & PW-4) it letween the two brothers on account of ie—78 ^5^31 •^Wf<ft<{, V^\V , R|<>»l^y .. &,A.^, ••^2002^ an^?r ^g^ (4<<(-j,«!<tw) 3TI^[?il{i;-<i<il 'cTSIT 3R^?T ^»l^i J- ^. ^tfliW ^liea 3TI^?T kooping tiloo at a partioular plaoc in 'cftFlld^ft-'I THTRlf ^ls^ ^t^l< '^'siRRsn^T hc houoc, whon wifc of thc dcccnscd saw that some untoward incident may t^ house of Darbari (PW-1) and by th^ deceased has already died and the a| from the above evidence that Dasri two brothers and when she returnedl that one of the brothers was dead t^aving sitting there. There were no other i^mates given by the accused, the accused v( dead body. This conduct ofthe ac6t^( 4) shows complicity ofthe accused7a[}pellant |ke place, she immediately rushed to the time both could return to the house, the ipellant was sitting in the house. It is clear pai (PW-4) had seen quarrel between the back along with Darbari (PW-1), she saw injury on his head and another was ihmates of the house, no explanation was |'as keeping mum and was sitting near the >ed along with evidence of Dasri Bai (PW- in the crime in question. Learned counsel for the appel| of quarrel and further looking to the the accused/appellant would not trav^ To appreciate this argument, the case. In the first information began between the two brothers, bot] and at that spur of moment, wife of th| to call Darbari (PW-1) who happens| they reached to the spot, the sustained two head injuries. Therefcf the accused/ appellant was unarmec petty matter which was regarding common house where both the broth< |ant argues that looking to the background oyier circumstances, offence alleged against beyond Section 304 Part-11 ofthe I.P.C. On the other hand, this argunrlent is opposed by learned counsel for the State/respondent. r^port decefesed |we have carefully perused the records of (Ex.P-1) it comes that when quarrel :(1 were throwing each other on the ground ^ dgceased namely, Dasri Bai (PW-4) went Ito be her brother-in-law. But as soon as was dead. They saw that he had ^e, it is clear that when the quarrel begun, |, the quarrel has begun on account of a (eeping tiles at a particular place in the irs were residing and it appears that in the 78 ^3 3^? '^wivw, 'a-^wi's, Rirti'yy &. ft. f^/ 'Vt, 200 SL sii^yr TBRT c^fy??i) 3ii^r?irR;-!t<*i WIT 3II^[ Slill'* Soma TCllW^lfeiail^T sptir of miament in the quarrel, the- deceased. According to the doctor, 1[M<rf<"f<ftt tm^i ^fe^ <^-^i< ^3TRpT3IT^fr Sippellanti who was unarmed, picked up a ctub, which must be lying there, ^ind gave one blow on the head of the |here were two injuries and the fatal injury was the first injury which was causecj on the head of the deceased resulting into fracture of occipital & parietal bone^, another injury was a simpte punctured wound and there was no correspond|ng internal injury to that wound. The case of the prosecution is that some scuf|le was going on between the two brothers and both were throwing each oth^r on the ground, therefore, there was possibility thatthe second injury [nigljt have been caused during the said scuffle which was not having any correspOifiding internal injury. Therefore, it is clear that during the course of quarrel the|appellant gave only one fatal blow on the head of the deceased by picking occipital & parietal bones and the de| by him. Hence, it can be safely held| to cause the death of the deceased, sustained by the deceased, the app^ caused by him may be fatal to the lif^ our considered opinion, act of the ap| ip a club which resulted into fracture of ceased succumbed to the injury sustained that the appellant was having no intention but certainly, looking to the nature of injury llant was having knowledge that the injury of the deceased. In the circumstances, in tiellant shall be covered under Section 304 Part-11 ofthe I.P.C. and forthat he sh^ll be liable to be punished. In the result, the appeal is Ipartly allowed. Conviction & sentences awarded to the appellant under Secti|3n.302 ofthe I.P.C. are set aside, instead, he is convicted underSection 304 Pa^t-11 ofthe I.P.C. and sentenced to undergo R.l. for seven years. The appellanl) shall be entitled for set off of the period already undergone by him. Sd/- L.C.BHADOO Judge Sd/- Sunil Kumar Sinha Judge