rier-A-^rimt y^^-— 'f^N^M^ IN SHE HISH COOR'E_OF MfiBH'S''& PRaBESH 8 Oa.BalSOR Cr.inaiaal Appeal No._r2./[f /1993 rt«_i.'. APPElLaHT 8 B. appaana S/0 B^papaiya msssn <?> L 't'..t>}; /. agsd abeiat 45'years, resldent ef R.S.B. Colony^ P»S. Kbanitaral Dlstt. R&IPIiR/ vs. iSPOHBENTs otate ef M.P. i-"^Wja> CR3MCTM.. .M>PEaI._U/S374(2) OF THE WBE OP CRmiNAL PROCEDOREo . .. • 'li:i 1! ill 1. A HI6H COUftTOF CHH.4TTIS6ARH AT BILA.SPUR Crimmai Appea! No.277 of 1993 &IVISION BENCH:- Csr-am: HON'eLE rtR.T. F. SHARMA & HON'BLE MR.R.L.JHANWAR. JJ. APPS-LANT B. Appanna S/o Chachoiya, aged about 45 year-s, resident of R.S.D. Coiony, P.S. Khamtarai, Distr.Raipur. Versus RESPON&ENT State of M.P. (Now C.©.) (CRMINAL APPEAL UN&ER SECTTON 374 (2) OF THE CObE OF CRIMINAL PROCEDURE, 1973) Present:- . . Mr. HcLnuman Prasad Agrawal, counsei for the cppeitont. Mr.ftake^i Kumar Jha, &v. 6ovt. Advocate foi* -riie State/resoondent. (Pcssed on 6th Mw, 2010) Tns JudgmenT of ths Court was dstivered byT;P.Sha''lna. J.:- 1. Chaiten9e in •Hiis appenl is to +he judgment of conyiction & order of sentence da+ed 16.3.93 passsd by the First Additional Sessions Judge, Raipur. in Sessions Trial No.26l/90,;whereby A whereunder tearned Fsr'st Additional Sessions Judge wmile acquiWng fiye accuad per-sons conyicted the present <^pel!a"t for commission of culpabte homicide amoun+ing to ' rmrder of dec^ased Appeal Swami conyicted under Section 302 of the • Indiim Pena! Code cnd sentenced'-Wm to u"dergo imprisonment for life. 2- Cowictio" is impL'gned on the ground It'at wiliiout •thers being any ciinchi.ng, credible md legal eyidence, the Court beiow has convicted and sentenced the nppellant as aforsmer'tioned and thereby commitl'ed . iifegaii^y. ': • 3- Ca.se of the prosecution, in br'ief, is that on tiie fateful day of 26.7.90 at about 8 p m., the dppeitant along wi1+i o-mer co-accused persons haye cissauited Parvati Bai (PW-8). Whe" her eider brother-in-law &. Appai Swami came to rescue her, then the eypeliant asseuited him by stlck oyer h'.s head. Parvati Bai (PW-8) went to ti^e police station and todqed Rojnamcha Scmha yide Ex.P/10.4. pnaily, F-I.ft. vsas registered yide Ex.P/8. On thct day, Parvati Bai was not hnving wry facility to take injured C). Appeal Swcmi to hospita! and on second day, they took &. Appc! Swami to hospital. Dufing the CQurse of treatment, &. Appa! Swami died. After summoning the witnesses vide E>;.P./5, inquest oyer the body of t>. Appeal Swarni was prepar-ed vide Ex-P/6. &ead body of &. Appal Swami was sent for- autopsy to ©ovemmentHospitu!, Raipu?" vide Ex.P/7. &r. &.C.Jain ff'W-1) conducted autopsy oyer The dend body of deceased &- Appa! Swami op.d found fol!ow!fiQ iniuriss^- 1) Lacsrated wound of 2" tength in front of head. 2) Lacersted wound of 2 i-" length on the pa>'istal region, 3) Laceratad wound on the occipital ragion of 2 iength. 4) &eprsss fracture of fronto parietal bone. Mode of death was .comma and dea+h was ho"!icidal in nature. Injured Paryati Bai, Laxma" cnd ckiughter of the oppelbnt were nlso examined by the aoctor. uursng the course of Irivestigatio" accused Rajarann was tnken into custody, he made disclosure statement of pipe yide Ex.P/14. Accused Jffliardhm made disclosure statemfent of stick vide Ex.P/15 <md same was seized from him "ide Ex.P/16. P'pe wos seized from accused Rajaram vide Ex-P/17. Clothes W5re seized from b. LoixmoiiRao vide Ex.P/19. Seized articies weps fient for chemical examination vide Ex.P/22 end presence of b!oo3 WQS confirmed fr-om tfae articles seized from accused Rajaram, JanardhnR &nd b. Laxman Rao yide Ex.P/22.4. 4. Statements of the witnesses were recorded under Section 161 of the Code . of Cr'.'ninal Procedure, 1973 (heremafter referred to cs ^+ie Code') and '^ qf|tey compietion of inyestiqotion, charge sheet was filsd in the Court of ^r -Judicjai Magistrate First Ciass, Raipur, who in turn committed the ccse to the Court of Sessions, ftaipur, from where the First Additionai Sessions jud^e, R&'pur recsiyed ths CQSS on trcyisfer fop triGl. 5. In or-der to proye Ihe guitt of +he accused/oippeiia"ts, The prosecution has exarnined as "wny as 14 witnesses. Slatewents of the-aecused/appsiiants were eslso r'ecorded under Section 313 of tiie Code where they denied the circumstonces appearing ngainst them csnd piesded 'nnocence and faise impl'cution in the crime in question.. Ttie accused have dso examined defence witnesses Eramlu (&W-1) and K. Chinieiyn (bW-2). Eramiu (&W-1) has deposed in ttis eyidence that deceessed Appa! Swami used to drink liquor nnd was in habit of (juarrelmg- On liie dcte of incident, the appellant shouted thct Appa! Swami is quarreling with him and assauited his dnughter Ronamma. The cppeliant also shouted thathe is going to lodge the report. He has further deposed that there was no light faciiity and they used to get iight fr-om chimney. 6. After proyiding opportunity of hearing to the parties, the Fir'st Additional Sessions Judge has conyicted & sen-tBnced the appellont as afor*etr^sntioned. 7. We have hecu'd M''-Hanuman Prasad Agrawai, counsei for- the appellant and M.r'.Rakesh Kumar Jha, by.Soyt. Advocate for -the Stsite, perused the judgme"t iinpugned and record of the Court below. 8. Learned counsel for the appellant yehementiy argued that as per eyidence of the pr'osecution w'tnesses there wss no light fQcility ond it was not - possibie fqr fhs witnesses.to see the incident. The inc'dait took pioce in front of house of the oppellapt where the deceased assiuited daughter of the appeliant who wcs haying pregnoi"cy of four months, thai the oppeliant went to the poiice station for lodging the report, at that time, pubiic gnthered and probabiy somebody has assauited t>. Appal Swami who was i" haait "f dF-inking liquor and qunrreting with •the persons and on -itie second '~. ~9qy, b. Appai Swami died. Tne present qspeilait hsis not cous&d any injury ' ^' 1^ to him. As per the eyidence of the pwsecution wltnesses, 1+ie cypeilnnt has coused 'njury by rod, but no rod hos been seized- The factum of rod does not find suppor-t from ftojnamcha Sa"ha EX.P/IO.A and F.I.R. Ex.P/8. The eyidence of the prosecution witnesses are seif-contr'adictor/ wd not Sdfe to reiy. Lear-ned counse! further argued that the eppellanf was not quarreling with &. Appal Swami, there was some quarre! between the appetiant a"-d Par'yati Bai (PW-8) and whe" the deceased came between them, then he receiyed injur-ies. Injuries were not serious in "eture. TTie injufed stayed i" his house at night and on the second day, his reiatives took him to hosp'tai. This shows •A'.ar the present oppellant h.dsnot coused a"y injury with intent to cause his death. 9. On the other hond, iea'-ned State counsei supported the judgment impugned and orgued that the evidence of Parvnti Bai (PW-8) is sufficient for drawing wri.fere.ri.ee that the present oppeilant is the person who has coused fata! injuries to t>. Appal Swami ffl''d committed murder of t). Appat swnmi. 10.In order to appr-eciate the arguments advanced on behalf of the parties, we haye examined the material availabis on pecord. In the present case, homicidal death os a result of fatal injuries of b. Appal Swami has not been substantiaiiy disputed on behalf of the qspeilmt, on the other hand, olso established by the eyidence of br.b.C-Jai" Q'W-l) and autopsy repor-t Ex.P/1 which reveai that depresafractur'e of fronto par-ietal bone was found <md death was hoinicidnl in "ffture. 11. As regards tpe c'omplicity of the accused/q3pe!ltin+ in the crime in questjon, coriviction is substsintialiy based on the eyidence of Paryciti Bai (PW-8). She has deposed in her eyidence thet at the time of incident she ,h6ard commotion, she came out from her house where •t+»e appe!lant was present dlong with ov.er co-ttccused persons, Ihe accused persons tr'ed to drag her and assculted her. .After hearing co'nmotion, her brother-in-law disceased E>. Appai Swami came to rescue her, then cppellnnt assaulted him ~> TS by rod, Rajaram by pipe and Janardhai by st'ck. then her bro'riier-in-iaw become unconscious. Her husband came, the" cccused persons assaulted to her husbaid. Both the persons went to the police statio". I" her- detosi cross-examinatio" she has s+Qted that he?" husbond was detained in the poiic«statio" ond or> the second day she csn'ie to her house, then she saw that her elder bro+hef-in-iaw was unconscious, then they took hjf" to hospitai and at that time, he died. In her deta'i cr-oss-exttmination, she s1uck into her yersion that the c^peikint has assaulted her brolfter-in-iaw- She has Sodged Rojnnmcha Sanha "ide Ex.P/lO.A which reveals that the appellont has assauited 1ne deceased by stick, but nothing has been seized from tiie accused- There are some contradictions reiating to use of weapons, whether it was stick or iron rod. 12-Raju (PW-14) has deposed in his evidence that there was no !i9ht fncilit/ and persons residing in the coiony used to get tight fronr lantem- befence witness Eramlu has deposed that they used to chimney for getting light. 13.In the present case, eyidence of Paryati Bfi yw-8) inspires confidenc«up the extent that while the deceased tried to rescue her, at that time tie oppellant assaulted C>. Appal Swam! and ceujsed mjuries to him. 14.After c^preciating tlie evidence ayaUnble o" re<:ord, ieamed First .Additional Sessions Judge has conyicted <md sentenced the appellant as aforementioned. f.: 15.In the present case, as per -the eyidence of Parvati Bai O'W-B), the pre^nr appeliant wns quarreling wilT' her, not with the deceased ond when - &. -Appal Swa^si came to rescue her at •rt-iat time the a^peliant nssaulted hirn'No immediate treatment was made a"oilab!e1-o the deceased. This -"Si- shows thgt the appeliant has not caused ar'y injury with intent to cause death of the deceased, but while causing injury on the head, he was haying !wow!edge of his act •that deoth mcy be coMsed- ,.(-iS^ii r i6.Learned First Additiona! Sessions -Judge while conyicting the (^ipeiiant under Section 302 of the Indion Penal Code has not considered the circumstances of the case in which injury and dea+h was caused and thereby comm'tted illegality. 17.0n ciose scrutiny of the eyidence, conviction of the appeilant under Section 302 of the Indion Pennl Code is not sustdunable under- the hw. The act of we appeilont does not travel beyp"d the scope of Section 304 Part ZE of the Indian Penal Code. 18. Consequently, the appeal is part!y cilowed. Conviction of the appeilant under Section302 of the Indian Penel Code is altered into Section 304 Part' IE of the Inditm Penal Code cnd sentenced to undergo rigorous imprisonment for five years. The appellont is 'm jail, he is sntitled for set off of t+ie detention period ns per rules. Sd/- T.P.Sharma Judge Sd/" R.L. Jhanwar Judge 1 J';: 1