HIGH COURT OF CHHATTISGARHAT BILASPUR DIVISION BBNCH CORAM: APPELLANTS (In Jail) RESPONDENT HON'BLE MR. T.P. SHARMA SB HON'BLE MR. R.L. JHANWAR, JJ. Cr. A. N0. 509/2004 1. Baldeo Singh S/o Nayan Sai Caste Gond aged about 55 years. 2. Nareiidra Singh S/o Baldeo Singh aged about 22 years Caste Gond. Both are resident of village Batara Chauki Karanji P/s Jainagar Tahsil Surajpur Distt. Surguja (C.G.). Versus State of C.G. throuth S.H.O. of P.S. Jainagar. APPEAL U/S 374(21 QF THE_CODE OF CRIMINAL PROCEDURE:- Present:-Shri Ashok Kumar Shukla, Advocate for the appellants. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 21/10/2010) The following iudgment of the Court was passed bv T.P« Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30/4/2004 passed by 3rd Additional Sessions Judge (F.T.C.) Surajpur, District Surguja in Sessions Trial No.233/03 whereby and where under after holding the appellants guilty for the commission of offence of culpable homicide aniounting to murder of Sundersai in sharing ^. '^ I . f common intention, convicted the appellants under Section 302/34 ofthe Indian Penal Code and sentenced irnprisonment for life with fine of Rs. 500/- each, in default of payment of fine amount additional rigorous imprisonment for 1 month, Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 5/4/2003 at about 12:00 at noon; on account of previous enmity with deceased Sundersai, who was sitting in front of his house and was abusing, a.ppellant Narendra Singh who is holding stick and appellant Baldeo Singh who was holding crowbar came to Sundersai and assaulted him by stick and crowbar and caused 8 injuries resulted into his instantaneously death. Incident was seen by PW1 Surendra Prasad and PW2 Beerabai, son and daughter of Sundersai. First Information Report was lodged by PW1 Surendra Prasad vide Exs. P-2 & P-2A. Marg intimation .was recorded vide Exs. P-1 & P-1A. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-4, inquest over the dead body of yr.M^~' //f^\ iS ^— ^' % I! "tlSl^-g ^."^^J v^y "'^:-^,-^" 4. Sundersai was prepared vide Ex. P-5. Dead body of Sundersai was sent for autopsy to Community Health Center, Visharampur vide Ex. P-12A. PW10 Dr. P.K. Sharma, conducted the autopsy vide Ex. P-12 and found following injuries:- (i) Incised wound of 4 x 2 c.m. x bone deep on left side offace. (ii) Incised wound on the left ear of4x 2 x 2 c.m. (iii) Lacerated wound over right side of the head of 6 x 2 c.m. x bone deep. (iv) Lacerated would of left side of the head of 4 x 2 c.m. x bone deep. (v) Incised wound over left side of the head of 3 x 1 c.m. x bone deep. (vi) Lacerated wound over back of the head on occipital region of 8 x 1 c.m. x bone deep. (vii) Contusion over chest of 5 x 1 c.m. (viii) Abrasion over left knee of 4 x 2.5 c.m.. (bc) Multiple fractures on left parietal bone up to left parietal bone, left occipital bone, left temporal & left zygomatic bone. (x) Brain membrane and tissue was congested. Mode of death was shock and death was homicidal in nature. Spot map was prepared vide Ex. P-16. Patwari also prepared spot map vide Ex. P-20. Plain and blood stained soil were recovered from the spot vide Ex. P-17. Accused Narendra Singh was taken into custody and he made discloser statement of wooden plank vide Ex. tf-^^^ ^: .. -.A % O- •^:.^1^-1 P-10, same was recovered at the instance of accused Narendra Singh vide Ex. P-9. Cloths of appellant Narendra Singh was seized vide Ex. P-7. Appellant Baldeo Singh also made discloser statement of crowbar vide Ex. P-11, same was seized at the instance of appellant Baldeo Singh vide Ex. P-8. Cloths of Baldeo Singh was seized vide Ex. P-6. Sealed cloths of deceased was seized vide Ex. P-3. Articles were examined by doctor. Statements of the witnesses were recorded under Section 161ofthe Code of Criminal Procedure, 1973 (in short 'the Code?). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Surajpur who in turn committed the case to the Court of Sessions, Ambikapur from where learned 3rd Additional Sessions Judge, (F.T.C.) Surajpur District Surguja received the case on transfer for trial. In order to prove the guilt of the appellants/accused prosecution examined as many as 16 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication are claimed. Defence has examined DW1 Uma Shankar Rajwade & DW2 Ramlal and has taken the defence of alibi of appellant Narendra Singh. .^v^ •> ,y^^^ / fepl"l 'c-'y b ^ After affording an opportunity of hearing to the parties, learned 3rd Additional Sessions Judge (F.T.C.) Surajpur, District Surguja has convicted and sentenced the appellants as aforementioned. Shri Ashok Kumar Shukla, learned counsel for the appellants and Shri Sandeep Yadav, Dy. G.A for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellants submits that in the light of evidence of child witness PW2 Beerabai alleged eyewitness, he is not disputing the fact both the appellants have caused injuries to the deceased Sundersai but submits that as per evidence of sole eyewitness PW2 Beerabai, deceased Sundersai was abusing the appellants on account of previous dispute and enmity therefore, on sudden provocation they have assaulted the deceased Sundersai although, they have caused 8 injuries but only one injury was fatal in nature resulted into death of Sundersai. They have not committed the offence with intent to cause death of Sundersai but definitely, at the time of incident they were having knowledge that they were caused the death of Sundersai. In these circumstances, act of appellants does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code. Present appellants are in custody since 5/4/2003 i.e. more than 7 years, which is sufficient punishment for aforesaid offence. 10. On the other hand, learned Dy. G.A. for the respondent/State opposed the appeal and submits that 8 fatal injuries caused by the appellants to the deceased Sundersai by dangerous weapons i.e. crowbar & wooden plank shows that appellants have caused fatal injuries with intent to cause death of Sundersai and Court below has rightly convicted and sentenced the appellants as aforementioned. 11. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the body of deceased Sundersai has not been substantially disputed on behalf of the appellants on . the other hand, othenvise also established by the evidence of PW10 Dr. P.K. Sharma and autopsy report Ex. P-12 which reveals that fatal injury was found over the body of deceased Sundersai and death was homicidal in nature. 13. As regard the complicity of the appellants in crime in question, the evidence of child witness PW2 Beerabai is sufflcient for drawing an inference that both the appellants have caused injuries to deceased Sundersai. '^. 14. Learned trial Court has after satisfying itself relating to the fact that witness understands the questions and was in position to answer the questions hasexamined her. She was categorically deposed that while her father was abusing then appellants came from her house with weapons and assaulted her father and caused his death. In her cross-examination, she has specifically admitted in Para-2 that his father was inhabit of drinking excess liquor and was inhabit of quarreling with other persons. He was in jail for long time and he was inhabit of quarreling with other persons after consuming liquor, which shows that deceased Sundersai was of criminal antecedent and was inhabit of quarreling with other persons. As per Para-2 of evidence of PW1 Surendra Prasad, his father was in jail on account of assault made by him to appellant Baldeo Singh which also supported criminal activities of deceased Sundersai. Evidence of PW2 Beerabai, child witness clearly reveals that her father was sitting in front of his house which is adjoining to the house of appellants and was abusing then incident took place, which clearly shows that deceased Sundersai has provoked the appellants and appellants have caused injuries on provocation and caused death therefore, the act of appellants definitely does not travel •.^ ^^s^l p^ •^' beyond the scope of under Section 304 Part-I of the Indian Penal Code. While convicting the accused/appellants, Court below has not considered this aspect of the case and thereby committed an illegality. Consequently, criminal appeal is partly allowed. Conviction of the appellants under Section 302/34 of the Indian Penal Code is altered into under Section 304 Part-I read with Section 34 of the Indian Penal Code and considering the nature of injuries, appellants are sentenced rigorous imprisonment for 10 years and fine of Rs. 500/-, in default of payment of fine amount additional rigorous imprisonment for 1 month. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .-<v