H!GH COU RT OFOR HHARTTISGAH AT BILPUR AS Crimina! appeal unde'r Section 374 l2) of Cr P c Present ‘ ShnSuryakant Mishra counseiforthe appellant ShnSandeep Yadav Dy G A forthe State/respondent Oral Order (Passed on 18‘“ of September ?009) Per Hon ble Shrl Dhlrendra Mlshra. J The appeuant has preferred this appeal under Section 374 (2) of IPC against the ludgment of convmtlon and order of sentence dated 29012002 passed lnr special case No.64/2001, whereby learned Special Judg (Atrocities) Rajnandgaon has convicted. the appellant under Section 302 o IPC for causing homicidal death of Gyan Das and sentenced him t. undergone life imprisonment with fine of Rs.5,000/- and in default of payment affine, to undergo additional RI. for one year, , (2) The case of the prosecution in brief is that on the information of Bapl F’W-3 that theappellant has assautted his Guru Gyan Das by trident on hi head below eyes and temporal region and Gyan Das is lying near railway station the same was registered in daily diary vide Ex P 11 A On retum from the place of the rncrdent Constable Mano) Kumar Shukla lodged the l F I R Vide Ex P 19 as mentioned therein The offence under Section 302 was registered against the appellant. lt wasmentioned in the report that the deceased wasl found in the iniured condition. He was shifted to Government hospital, Dongargarh where he died on 21 .’l 2001. (3) Duringlinvestigation’ inquest overthe dead body of the deceased was prepared {vide EXP-17; .Bodyawas sent for autopsy vide EXP—13 to Government Hospital, Dongargarh where Dr. A.K. Tamrakar, PW-9 e fj a o u s Comm:- Hon’ble Shri Dhirendra Mishra & Hoa’bae Shyi RN Chaadyakar, -J-J Criminal Appeal N‘o.350!2002 Appei!ant THak @ TiIOkchand 8/0 (mgai!) Tarachandvra Maratha Kalérx aged 45‘ years, Rio Ramehdra Ward, Tumsar 7 Road, Bhandara f7 (Maharashtra) Versus Respondent State of Chhattisgarh Through PS, Dongargarh was prepare HO‘ whic was sueuetly verifi by Anrag Shanna, -1. Cse ertifica EX of th cese was ae int possession id EX-2 saie aizaa’ o he appellant was taken into possesion vid EXP-4. On memorandum of th appeliant (EXP-6), the weo of offence ride was taen into ossessin vid EXP—7. The injured yan D wa ent tretnt an dial emination vide Ex:P-' to Gov. Hospita Dongargarh, whre he died on 21 . .2001. 9 t L e 1 fr coetion o investigati charg se as fi in the Court of dnal f Jul atrat ongargar wo comed the case to earne Sel Cour or t har ner tio 302 of PC nd uner ectio 3 2) (v) of’the Scheduld cast nd Scheed Tribe (Prevention o Arocities) Act was framed. he elnt abure the guil Duri trial, prection examined witess. heraer steme of cuse was cded der Section 313 f he .. h pelan ned the circumstaes appearing gs hi d pleade noncerand false _ laion Aer hing leard nsel for the parti h trl urt convicted, the appll ad sentence nioned aragra-l h udgment. Hi deat t eca Gy a o dispute even othem he eve Babtu, - n Pap Yadav, F’W-4, who are th e wts f incent and fuhe vience of Drt A.K. aa‘ -Q! w as poved h pot mortem repor vid EXP-12 and opin ha ae ea was ue o urogn oc as result of anti mm he nj ‘ omicdal h of he desed an Ds is nt in ‘ rwise-fro t idnce of PWS ad pu e ye inesse o the id rtr ed Tmrkar PW ho h r te s t e ed tt the cus of dth d t Neeic shk orte ad iury. nt la cunsel fo th l submits that e n te or b th tl Cort ht he appellant ‘ as r th dea of e ae Gy D owever he rgd th i e usta b es een described by D. K. aka s ple ur and te ced d as he was physically weak? His heart and liver were also weak and a minor shock Was fatal for the deceased. There is no pre—meditation for commission of the crime. The injuries were caused only when the deceased jokedwith the ’ appellant and considering the overall medical evidence available on ‘record‘ the offence does not travel beyond Section 304 part-ll of the IPC. rm. H7 v d by S h bsqn ed u PW at Cte P-3 e dead tkn o Ve P Blood tnd ‘pm f t s e e apn Le. tnt k po e G as s s for ame d mec xa Ate mpl f on e het w led Aditio Chie diCIa Mgise Dh h mitt ld pcia t f rial I Cge ud Secn I a d Sn ( ‘ e e a dul f t T appla id t ng osu 12 nse Teft, atnt acd reor un o t CrPC. Te aplt dei nc aaint m in the prosecution case an d ince impict. ft ear ne cou es, te ia Co eant n d as met in pph of te j _ Shri Survaka Mishra erned o r e appelant h is ot disputing h findinq recded y e ria u ta t w esponsible for e th th decesd an as H aue at al th injuries sined y the dceaed have b r A Tmrar a Sim in nate h dease die t d (9) On the other hand, learned Dy. Govt. Advocate for the Stae argue in support of the impugnedjudgment‘ _ (10) We have heard learned counsel for the parties and perused the record as also the impugned judgment. (11) From the evidence available on record, we flnd substance in the argument of the learned counsel for the appellant. Dr. AIK. Tamrakar; PW-9 has proved the post mortem report EXP—12. W'rthout specifically describing the injuries present over the person of the deceased, he has deposed that the deceased suffered NeUrogenic shock due to head injury. He has also deposed that the injuries were anti~mortem in nature. The same wa sumcient to cause death in ordinary course of nature. In the cross- examination‘ he has stated that the deceased was physically weak. His hear and liver were also weak and minor shock was fatal for the deceased. Injuries have been further described as simple in nature (1 2)’ Taking into consideration that the Doctor has described the inuries to be simple in nature and he has further stated that the deceased died because of simple injuries as he was physically weak and his heart and liver were also weak and simple hurt could prove fatal to him and also considering that there is no evidence on record to show that the offence was committed after pre- meditation, the appellant was aware of the physical infirmity of the deceased, we are of the opinion‘that the prosecution has failed to prove that the offence was committed with an intention to cause death ‘or to cause such a bodilyl injury which was likely to cause death of the deceased. (13) Accordingly, we partly allow the appeal. We set aside the conviction cf the appellant under Section 302 of IPC and instead, convict him under Section 304 part—ll of the IPC. (1 4) Learned Dy. Govt. Advocate for the State submits that the appellant is is custody since 22.01.2001 and as such he has already undergone‘mor than 8 years and 7 months of the jail sentence. Therefore, we sentence the appellant for the period already undergone by him. (1 5) Accordingly, the appellant be set'at liberty forthwith, if not required in any other case. s r t j e