^^^ ^'s' itV' .,,y APPELLANT: (In Jail) HIGH COURT OF CHHATTISGARH, BILASPUR Crimmal_Ae@eaLNQ.128^f 2001 Mahapati alias Sukharam Kamar aged 40 years, R/o village Dharampura, P.S. ' Chhura, Distt. Raipur (C.G.) RESPONDENT: Versus State of Chhattisgarh Through P.S. Chhura, Distt. Raipur (C.G.) {Criminal appeal under Section'374 of the Code of Criminal Procedure, 1973} Present: Mr. K.K. Singh, counsel for thffiappellant. Mr. M.P.S. Bhatia, Deputy Govt. Advoc^te for the State/respondent. Division Bench: - Hon^>leJVIr.J[,P^Sharm^& Hon'ble IVIr. N.K. Agarwal, JJ ORALJUDGMENT (11-1-2010) 'LP^Sharma^J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 29-12-2000 passed by the 5 Additional Sessions Judge, Raipur in Sessions Trial No.301/2000, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of homicidal death of Vishwasa Bai amounting to murder, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo imprisonment for six months. 2. Judgment is impugned on the ground that without any iota of evidence the Couri: below has convicted & sentenced the appellant. 3. Case of the prosecution, in brief, is that on the fateful day of 4-7-2000 at about 1 p.m. the appellant was quarrelling with his wife Parem Bai (PW- 4) in his house;Vishwasa Bai (since deceased), mother-in-law of the appellant, opposed the quarrel; then the appellant took out the burning i ? --r^---^^—t. -f—-fr ...•^.^^ /'^fc, -^^ silsl»««%,S f!^^/ wood and assaulted over the head of the deceased as a result of which the deceased fell down and again the appellant assaulted the deceased. Parem Bai (PW-4) lodged Dehati Nalishi vide Ex.P-17 and F.I.R. was registered on the basis 6f Dehati Nalishi, vide Ex.P-18. Vishwasa Bai was sent for treatment and during the course of treatment she died. Death was intimated to the police and merg intimation was lodged vide Ex.P-20. During the course of treatment, Vishwasa Bai was examined by Dr. G.L. Tandon (PW-7) vide Ex.P-10, Who found two lacerated wounds, one over head of'5 oms. x 6 cms. x 3cms. and second over right cheek of 2 cms. x 3 cms. x1 cm.. After summoning the witnesses vide Ex. P-1 inquest over the dead body of Vishwasa Bai was prepared vide Ex.P-2. Bloodstained and plain soil were recovered vide Ex.P-4 from the spot. Spot map was prepared by the police vide Ex. P-5. Dead body was sent for autopsy to Primary Health Centre, Chhura vide Ex.P- 22 and autopsy was conducted by Dr. G.L. Tandon (PW-7) vide Ex.P-12 who found two lacerated wounds over head & cheek as found by him vide Ex.P-10. Cause of death was shock as a result of excessive haemorrhage. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. One wooden burnt piece was seized from the accused vide Ex.P-3. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Gariaband who in turn, committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as ten witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence & false implication. After affording l.tw^ Jl •y :l,s "i- .^cfV' iBBt opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant as aforementioned. 6. We have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 7. Learned counsel for the appellant vehemently argued that according to the case of the prosecution.-the appellant was quarrelling with his wife on account of providing meal, suddenly the deceased came between them, she tried to resist and condpmn the appellant, then on sudden provocation, the appellant assaylted the deceased with burning wooden piece present at the place of incident. The appellant has caused injury without any intention of causing murder of the deceased. Therefore, the act of the appellant does not travel beyond the scope of Section 304 Part-llofthel.P.C. 8. On the other hand, learned State counsel opposed the appeal and submitted that the appellant has caused fatal injury over the head of the deceased and the Court below has rightly convicted & sentenced the appellant. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 10.1n the presentcase, homicidal death ofthe deceased as a result of injury is not disputed by the appellant, otherwise also established by the evidence of Dr. G.L. Tandon (PW-7), injury report Ex.P-10 and autopsy reportEx.P-12. 11.As regards complicity ofthe accused in the crime in question, conviction of the appellant is based on the evidence of eyewitness Parem Bai (PW- 4), wife ofthe appellant & daughter ofthe deceased, who has specifically deposed that the appeflant was quarrelling with her on account of Li ![ w^ "'"1 f1S>^J^':- demand of meal, at that time the deceased came and tried to intervene on which the appellant assaulted her with a burning wooden piece over her head as a result of which she fell down. She informed the villagers and they took the deceased to the Police Station and hospital where finally the deceased died. Other witnesses have corroborated the evidence of Parem Bai (PW-4). 12.1f the evidence of Parem Bai (PW-4) is admitted in its face value, then it may be inferred that the appellant was demanding meal from his wife and he was quarrelling with his wife, at that time, the deceased, who was mother-in-law of the appellant, came and tried to intervene in the quarrel whereupon, suddenly, the appellant assaulted the deceased with a burning wood present at the place of incident. This shows that the appellant has not caused any injury with intent to cause the death of the deceased, but suddenly when the quarrel was intercepted by the deceased, the appellant assaulted the deceased and caused single injury, though two injuries were found over head & cheek of the deceased. Injury No.2 was trifle and simple in nature and injury No.1 was substantial injury. 13.Evidence adduced on behalf of the prosecution shows that the injury found over the body of the deceased was caused by the appellant, but the appellant has not caused any injury with intent to cause the death of the deceased. But while causing injury over head, the appellant was having knowledge that as a result of the injury the deceased may die. Consequently, the act of the appellant falls under Section 304 Part-11 of the I.P.C. and not under Section 302 of the I.P.C. While convicting the appellant, the Court below has not considered the aforesaid material part of the act of the appellant and thereby committed illegality. 14.Forthe foregoing reasons, the appeal is partly allowed. Conviction ofthe appellant under Section 302 ofthe I.P.C. is altered into Section 304 Part- II of the I.P.C. and he is sentenced for the custodial period already undergone by him i.e. since 5-7-2000 till date. He be released forthwith, if not required in any other. . _—-—— _- —- iioma T.P. Siiarma Judge Sd/- N.K.AgrawaI Judge ^ll :.^;it::