Wm wzm) W WW W®ER §7mw3né¥r mmafza HGE COURT OF C1mTTISGARH AT BEASPUR fresent: . Shri AK. Prasad. Advocam for the appellant. Shli Nserq5 Mehta, Pa1161 Lawysr-far the State. ORAL JUDGMENT (17th November 2007) Dhirendra Mishra: J TYJis criminal appeal canviction and ordér of passed in S.T.No.352j0 Sessions Judge (FTC), Am ikapur has convicted the appellant under Section 3044 of IPG for uve years, pay a iille oi \of mic to undergo additiongd RI for one Vear. is dimcted against the judgnent of sentence dated 4th January 2005 'Whereby learned \Fh Additional and sentenced him to undergo RI Rs. 1000 and in default of payment ‘3 H. Case of the m‘osecution. in brief. is that on 17.7.2004 wife of the complainant deceased Kunti was proceedings towards the field with food the appellant was beating his son. She stopped the aypellan . Lt for her husband when she saw that CRMWAL APPEAL NO. 15612005 APPELLANT A adh Gupta. sf 0 Ganpat Gupta, (m JAIL) ag 47 yea}$, Occupation~Agxiculh1re, r,’ Village Nawanagar, RS. Darima, Di trict Surguja§ CG Respondent T State of Chhath'sgarh, H 011$ RS. Darima, Di ti; - Surguja (C.G.) . ..................................... Wm ‘gi 200 ..............................................W ................................................ mmawfaa WW WW€R L avaraum whereupon the appellant in a pt of anger a$sau1ted the deceased on her head and ether parts of the body with club resulting in her instantane s death. 3. Merg intimation EXP 3 was given by Babunath (PW— 1L husband of the deceased. He alsovlodged First Information Report on the same date at bout 16.40 hours in Police Station Darima Vide EX.P] 1. Inqu st over the dead body of Kuntibai was prepared in the prese ce of Witnesses vide EX.P/ 12. Her body was sent for postmor em aiam-ination to Govt. Hospital. Ambikapur Where Dr. K. Jaiswal {PWa7} conducted postmortem and prepared report EX.P/ 9. 4. r After completing inv tigation charge sheet was hled in the Court of Judicial Magis ate First Class, Ambikapur under Section 302 of the IPC and the same was received on transfer for trial by the learned Addi ‘onal Sessions Judge. 5. > During trial the pros ution examined 9 witnesses in all. Thereafter, statement of th accused Was recorded in which he denied the evidence appear“ g against him in the prosecution ‘\ case and pleaded innocen and false implication. However, learned trial Court after aring counsel for the respective parties acquitted the appellant n‘om the charge under Section 302 of the IPC and instead convicted him under Section 304—1 of the. IPC-and sentenced as mentioned in paragraph one of this judgment. o e L c according to the case of the 0n the spur of moment d prameditation as the decea Whv he was beating his s assaulted the deceased with which she fell down and died on the spot. The prosecution stated before the Court that single Witnesses have categoricallv assault was made by theappellant .to the deceased 011 her waist and there is no-allegation that the appellant assaulted Thus. hem the evidence available the deceased on her head. on record and the circumstances under which the ohence is ' alleged to have taken place neither intention nor knowledge can be attributed to the appellant of causing death of Kuntibai. So far as injuries found in the postmortem report over head of the same could be sustained by the deceased are concerned her due to fall on the ground 7. On the other hand, liarned counsel appearing for the Statejrespondent supported impugned judgment of the trial Court. prosecution the incident occurred e to sudden provocation Without d questioned the appellant as to n. which ixlfuriated him and he a club on her waist: as a result of 8. I have heard learned counsel for the parties and perused the material available on judgment. record including the impugied ’ .» mm m ‘gi 200 Wmmm‘a 3 mmawm %aF':m 6. Learned counsel for the appellant submits that even 4f 9. Conviction of thé a llant is based on the statgmmlts of 'PW—5 Vina}: Kumar Gup and PEI-8 Krishna Pra$ad Gupta, son of the appellant. C ion is also based 011 the statement of Dr. A.K. Jaiewal (PWJI), who‘c’onducted posunortem on the body of deceased and prove the p0$tmortem report of EXP] 9. 10. PW~5 Vinay Kumar upta, has stated that on the date of incident at about 11.30 the morning he saw that the accused was assaulting a 1 dy. He saw him assaulting on her waist, however. he went to his home-out of fear. Later on he learnt that thelady has di ’ After assaulting the accused was waving the club, therefore, ut of fear he fted from the scene of occurrence. In the cross—e amination this Witness has stuck to his Claim macle in his exaxdination—in—chief and stated that the accused was chasing his son for beating. However, he had saved the child and even his son Krishna had stopped the accused, whereupon he had assaulted Krishna also with club. a At that time the lady stop}: ed him, on which he assaulted her with club. PW—8 Krishna Prasad Gunta {PW-8L son of the appellant, has also deposed in the similar lines and stated that \when deceased Kuntibai asked the accused as to why he was heating the child, the appeLant gave one lathi blow to Kuntibai saying “who is she to intewene". In the crossexamination /-‘/ also this Witness has stuck to his claim. p‘ e o ' t 1 e . 11. P‘W-7 Dr. AK. Jai 1 : Whr; conducted postmormm: has stated that he found con sion of size 5 x 1 cm iust behind the neck, two contusions on left scapula region extmdjng up to neck of size 10 c111 x 1 and 8 c111 X 1 cm, respectively. Them was an abrasion also of ize 1 cm X 1 cm. He also noticed one contusion beside the 1 eye. On internal examination he found that vertebra bone of the neck, 6th cervical vertebra were fractured and there was a big haematoma. There was blood clotting under the brai mbrane and brain, 2rd and 3rd ribs of the left side were fra e There was a large blood clotting on the backside of the neck. He also noticed contusio 1 over lungs and haematoma over left lung. He has opined t cause of death was due to combined edect of shock and neu ogenic shock as a result of excessive bleeding out of the. hea injury and further stated that the injuries could be caused by the club seized from the appellant, which was sent to him fO‘ examination. 12. After going thro the statements of PW—S Vinay Kumar Guyta and PW—8 Krisln a Prasad Gupta, involvements of the appellant in crime in question is established. From the evidence available on re 0rd no intention can be attributed to the appellant for causin injuries to the deceased. However. after considering the ture of injuries sustained by the deceased, it cannot be aid that the appellant did not have n e ed, blood was present in both sides chambers of heart‘were empty. o of the chest and both {M7 s‘ a e r; e r h uv a Wm W 200 WW f‘g‘aW Q; %ea12-cmm knowledge that the injurics (Aimed by him could msult in death of Kunfibai. Therefore, considering the evidence available on record and particularly, the medical evidence, I am of the opinion that the trial Court haS rightly convicted the appellant under Section 304—l of the IPC. 13. Learned counsel for the appellant argued that taking into consideration -the totality of the circumetances and further considering the faot‘that th: incident occurred on the spur of moment on a sudden provocation without premeditation, the jail sentence of eight years’ RI Lmposed upon the appellant is too excessiVe and the same should be suitably reduced. 14. Considering the overall evidence available on record and further considering m6 circ tances in which this unfortunate incident occurred, this Court is of the opinion that ends of justice would be served if While aming conviction of the appellant under Section 304—1 of the IF , the jail sentence of eight years’ R.l. imposed upon him by the tr Court is reduced to nve years. l5. In the result, appeal partly allowed. Conviction of the appellant under Section 804— of IPC is maintained. However, jail sentence of eight years’ RI. imposed upon the appellant is modiiied and in place there f, he is sentenced to undergo RI for five years and pay a tine of s. 1000j~, in default of payment of fine to undergo additional RI or one yearn. endra Mis‘ma / sdl‘ yidge "q’qlE’a H u‘ s m t i '