HIGH CDURT QF ('HHATTI5GARH AT RI! A$?UR CrimingE Amati” NQASEI gf Zfkm‘i APPELLANT 5ahr¢mg 5ai, son of Mamlu Sail aged 2 year-s, residenf of viiiage Kaproii, Poiice Smfion Jashpur, msfr-icf Jashpur (C.6.) Versus pmmmggm‘ 5mm of Chhaftisgnrh Through SDjashpur (Apgea! under- Sectign 374 {2} of Cwje of Criminal Procedure, 1973) aTa'i‘ei 1" I I responder‘i'. QRAL Q’UDQMENT (Passed on 47 Juiy, 2009) TMs appeal is directed against the judgmenf of conviction and order of sen'tence datad 30.9.2005 passed by The Addi‘riona! 5essions Judge, Jashpur'i in Sessions Trio! Nazi/2005 whereby and whereunder the learned Additional 5essions Judge after hoiding fhe dupellenzr guilfy for The offence punishable under Section 304 Port-ll of the Indian Pena! Code sentenced him to undergo ‘ rigorous imprisonment for 7. years. 2. Judgment of conviction and order of sentence is choiienged on the ground that without there being on ioto of evidence, the Court below hos convicted and sentenced the appellant os aforementioned and thereby committed on illegoiity. 3. oosu of the prosecution, in brief, is thot the accused is the son of deceased Matlu 5u.de. 5ai. On the fateful day i.e. 2&122004 at about 6 p. the deceased and his son Sunder 5ai (PW-1) were present in {Front of .a.adev Akra‘ near fire. The present appellant came there, condemned his brother 5under §ai and started ouarreling with him and it was intersected by the ideceasedi at that time the accused assaulted his father. His father feii down l o: C9 1 6 i ($33 Han'ble Mr. T,P: shame, l) $i‘ Pyiesem: 5mtMze£1¢1 Shashfr-ii caunsei far- the awgllant Shri Akhii Mis‘iam, Depuw Governmenf Adv6oa‘fe for The and after Mg haw; he diad. Mgr-g intimation was recorded vidg Ex‘PIZV Deha'ti Naiishi was recorded vide EXP/1. Spot map was prepared Vida EXP/.3. Inques‘i’ was prepared over The dead bad)! 9f the deceased vide EXP/6. Dead bedy was sen'l' far Aufaasy vide Ex.P,/15; Aumpsy was conducied by Dr.P.S.5ingh (EXPIB) and ane fracture of parie‘ta! bone of the deceased was found who npined That cause 03F dea'rh is eama as ci'resuH af injury and dea‘rh was homicidal in. nature. 4. After recording the si'a'remen'rs of The wiinesses under Sectian 1.61 9f the Code and affer completian of invesiiga‘i'ian, charge sheer was filed in ‘rhe Caur‘!‘ of +he Chief Judicial Magisfrafe: Jashlaur who in "turn cammitfed the case “m 'l-he Césur‘!‘ of Sessicns Judge Jashpur from where The Additianal Sessians Judge, Jashpur‘reaeived The same an fransfer far trial. d 5. In order To prove the guilt of the accusedlaapellant, the arosecution has examined as many as 9 witnesses. Statement of the accused/appellant was t recorded under §eation 313 of the Cede where he denied. the circumstances appearing against him and innocenay and false imaliaation is claimed. Learned Additional 5essions Judge after affarding an oppartunity of hearing to the narties, convicted and sentenced the unpellants as aforementioned. 6. I. have heard $mt.Meena.5hashtr-i, counsel for the aapellant and Shri Akhil Mishra, Deputy @overnment Advocate of the 5tate/respondent and perused the judgment impugned and record of the trial Court. 7. Learned counsel nearing for the appellant submits that on the basis of statements of the witnesses he does not want to argue on the question of conviction and she want to argue only on the question of sentence and argues that the present appellant w-s not present on the spot and he came to the spot without any weapon. After quarreling with his brother when the deceased tried to intervene on sudden provocation and heat of passion the appellant assaulted hiszfather and caused oniy single injury and his father died after one hour of the incident shows that the appellant has not caused any injury with intent to commit .u.der of his father. Learned counsel further sub.its that the appellant is in custody since 30.12.2004 and has completed 4 years and é months which would be sufficient sentence looking to the facts and circumstances of . . .... i irhe case. Learned caunse! placed raliance in the ma'H-en of Bgg¢§ Pam v. 5mm o‘ Msdh a°radesh1 a": whick Tu; Awx vodrt ”:us he!d ...a* Tabr-g W's consider-curb?! the. single injury reduced the sentence fmm 8 years rigcrous imprisonment t9 3 years rigoreus’imprisonment Learned counsel further p‘cced "e'mnce in fhe “ad—'"er Ran-aakr; .nan Uani?han v. Sfafe af vnera9a 2 in which the Apex Cour-r has hed their in The absence of any enmity end circumstances, the sentence was reduced to 4. years rigaraus imprisonment. 8. 0n the other hand, learned col n e for the State/resnondent supgorted the indoment imnuaned I” J and a an s that sentence awarded Is Jdst and hroper Adrmttedhh dentin m‘ deceased Matiu gunder Sai is not disputed and :therWIQ g<+nhhsh9d hv tha ewdgncp o‘F Sunder $m {PMj-H snn Q-F tho deceased, Mahabir {PW—2),. Sukar Darn {PW—3L Mahrang $ai (PW-4), Dr,P,M.5ingh {PW-8),. autopsy report (Ex.P/$) and other documents. Conviction of the appeiiant is based on legal evidence and is sustainable under the law: 1G. As regard the question of sentence is concerned, the offence took place n heat n‘F na<<mn and sll‘Fflrwnt mtpr-Fergncg by the de ed rgquiredi therefore, sentence be required reconsideration. 11. Consequently, the appeal is partly allowed. Sentence is party modified. Sentence of rigorous imprisonment for 7. years awarded to the appellant is red ed to rmnrous Imhrisonment for '5 venrs r u'u a we Q / sdl. B/l T_ p_ sharma 4i Judge //o 4 12004 CRI.L.Cl'.632 21999 CRILJZlOl