^ll'''lS'^)!15iWI.'"^L-^!^iJg''??^l^JJJi!ly^:^^- <? (In Jail) HI6H COURT OF CHHATTI-SeARH AT BIb^-SPUR Crim'nal Appea! No. 174 of 2007 Sudhir Kumar Singh S/o Late Awadhesh Pratap Singh, Aged about 30 years, R/o Village-Taraju, Poiice Station- Lakhcinpur, Distt.Surguja -(C.6-) Versus /'>•• State of Chho+tisgarh, Through; District-Maaistrate ArnbikoDur, uistt.Surgujg (C.6.) (APPEAL UN&Eft SECTCON 374(2) OF CO&E OF CRIMIN.AL PROCEDURE, 1973) jon'ble. Mr. T.P. Sharma, J.) Pre-sent: Mr.Mahendra Dubey, counsel for the appellant. AAr.Akhil Mishra, Dy.Sovt.Advocate for the State/resDondent. JU&6M.ENT (Passed onl6thjuiy;2009) This appea! is directed against the iudgment of cony'ction and order of seytlsncs d<s'tsd 2.12007 passed by the Third jAdditiono.1 SGSS!O"S JudQe (F-T.C-), Amb'kapur-, in Sessions Trial No.459/2005 whereby the learned Third .4dditioncl Sessions Judge after holding tha oppel!a"t gui!ty for 1+ie offence punishabte under Section 304 Part-I of the India." Pena! Code sentenced him to undergo r'igorous impr'jsonment for 10 years a"d to pay a fine of fts.500/-, in default of pffynner't of fine to fur+her undergo rigor'ous ih''p>'isontrisr!t for 1 "'ori'tfi. 2. The Judgme"+ of conviction and order of sentence is chailenged on the gr'nund that the prosecutio" has not proyed 1+ie charge against the oppeliant and has failed +o prnye the fact thct +he accused has sssaulted the deceased c^d caused d^gerous injury r^sultii^g into d®<sthof th©dAc%GSed. •\^ i:t ^ i::!ii sl t!' • i! '-^li ^ 3. Bnef facts of the'case nre l+igf the present oppellait and Awadhesh Pratap Singh (since deceased) are fal+ier a"d son. On 2.3.8.2005 at about 7.45 p.m. present accused was qunrTeling with Arun eand AA,eghari at that time deceased hcs tri^d to interyerts rt!^d ths <irccus®dctssclu!t©dh'm by feast crnd stick and caused injury. Dececsed todgerf P-ojnamcha Sanha vide Ex.P/16. He wcis %><ami"€d by DEfl',P.S.K<s?9-k®13"^^E (PW"3) who^otic^d two abrasio"s oy@r sar. one contusEon oyer' left eibow a"d one e'lbow ovsr knse ctr'n1 yid®Ex.P/3. Subsequently he died on 24.8.2005.A'terg intimation I'ras recorded vide Ex.P/1. Inquest over the body of the deceased was prepared yide Ex.P/5, M.L.C. register of 5r.Dr.P.S.Ke''ketta (PW-3) was seized yide ExP/2. bead body was sen* for autopsy yide E.X.P/6A-. Autopsy was conducted by &r.S.PBaish 03W-il) and found fractiire of left parietal bone of scufl and death was due to coma as a r'esult of fF-ucture of scut! vide Ex.P/12. Ctoth of the accused was wcoyered vide Ex.P/9. One stick and tor'ch were recove''ed fror" the accused o" th©bosis of disclosure stGt6!Ttent made by hi??t yide Ex.P/li. Ssized o.rticles were sent for chemicai anclys's and presence of blood over cloth of "ftie dcceo.'ss.d n?id torch WQS confirmed ytde E.x^/20. F.X.R. was lodcied yid& Ex.P/22. Spot mey was preparedVde Ex.P/23. 4. 4ft%r recordinQ the statemsiits of ths witr^esses under Ssctlon 161 of +he Code of Criii'ina! Procedur'e, 1973 and after completion of inyestigntion, charge sheet wcs fiied before the Chief Judicia) Magistrate, Ambikapur who i" turn committed •riie case to the Court of Sessions, Ambikapur from wher'e thes Third Additional Sessions Judge (F.T.C.), Ambikapur' recewed 1+'e same o" trgnsfer' for trial. 5. In o!''der to prove the guilt of the accused/appellant; 1+ie prosecution has exami'ned as many as 17 witnesses. StaterT'ent of the aGcused/appeSlant "'as pecorded under Section 313 of the Code u'her'e he dgnied the Cfcumstancss appearing against him aid innocency and false implication is cbirned. ' gi w\ ^- 6. Learned Thii'd Additiona! Sessioris Judge (FT.C-). Anibikapur after affofding an opportunity of •hear'ing to the parties convicted and sentenced the appe!iant as aforementioned. 7. I haye heard Mr. Mahendra E»ubey, counsel for the appeliant and Mr. .41<hi! Mishra, &y. <5ovt. Advocate for the State/respondent o/>d perussd the Igment impugr'edand recorc! of the tria! Cour't. .•>.. 8- Lear'ned counsel appearing fof the appeS!an+ submits +hnt the prosecution has not co!!ected any evidence to show that tiie appeiio.nt hns caused any injury to 1+ie deceased and deceased dsed as a result of such injur'y. Originnliy/deceesed was. exomined by Dr-P.S.Kerkettcs (PW-3) who noticed oniy four injuries and fr'acture which are "ot sufficient for causing death. He was not admittect any hospita! while he was in h.ouse cnd he d'sd may be as a result of dny injury caused due to other reason. Learned counsel fur't^0.? sub^its that in the ebsenc®of csnv crsdible eyide"ci?. conviction G:nd ssintsi^cs of liici ct0psll^rlt is ?iot sustoJnQble us^d^r ttie IQIW^ 9. On the other hand, Searned counsel oppear'ing for the State/respondent supported •t+'e Judgmsnt impugned ond submi+s •that the, eyidence adduced on behalf of th.e prosscutior! is sufflcie.nt for drowing infer?"ce that 1+<e B'ppeTla.it has assaulted his father and caused death of his father. Learned counsel further submits th.at Dr'.P.S-Kerketta (PW-3) was cnreless i" the examination of 1+ie decedsed and hls M.L.C. r'egistered was cslso seized by the po!ice. 10. In order +o appreciate the conten+lohs of the parties, I haye examined +heevidence adduced on behaif of the prosecution. The injury found over' the body of the deceased "nd causeof dea+h is not subs+antially dispu'ted by the appellant, otherwise established by the eyidence of br.S.P.Baish (PW-ll), Kii.Neelam Singh (PW-12), Jitendra Singh (PW-13), brother of the appellant, Arun Kurpa?' Singh (PW-14) ond autopsy report (Ex.P/12). Rojnar'i.cha Sanha iodged by 1+>e deceased having the fact that dying dectaratjon. Fracture of scullcmd haeinotomawas found oyer the body of the dece"sed at the time of outopsy which is sufficient for causing death and death was a result of shock. 11. As regards the complicity of th.e appeHant in the crime in questio" is concer'ned, most of the witriesses have not supported the case of prosecution ond the prosecution has declared them hostile. -Jitendro Singh (PW-13) brother of the accused has deposed that the present oppe!!ant has assaulted his fa+he''. In his cross-examind+ion, 1+ie prosecution has nlso asked him that in the sudden quarrel without any cause, the accused has assaulted his fal+ier by stick and caused death whjch this witness has accepted. Suggestio" of sudde" quar'rei is "CCepted by Arun Kuniar Singh PW-14) csiso. 12. It appears from the cross-examination of Sub-Inspector K.S.Paikrn (PW-16) thQt the accused had also taken the defence that he wcs under intoxicatiori and under- the influer'ce of intoxication, he has caused Injury but to proye the sajd defence of mtoxicotior!, the defence has not adduced any evidence. Statements of these witnesses are sufficient m the !igh+ of specific suggsst'Qn given by •t+ie defence tho.t the accused has caused fata! 'mjury to the deceased and as a result of such injur/ he died. When +he deceased tried to inter-yene between the accused, ^run cnd Meghori, then the Qppellant assaulted hi!" by stick. It shows that the appella"t has not caused any'njury wi'tfi intent to commit murder of the dec<ased but when the dsceased tried to interveie the qucirpe! then the accu^ed assa'jited him who wrts his father' <snd as a result of such assciult he died on the second dav. Zt shows that the appei!a"+ has not c/iused any injury with intent to commit murder of his father but injury found oyer the body especia!!y on the head of the deceased and weapon i.e. stick used by the accused shows that h? has caused irijury with the knowledge that as a result of injury h!s father may die. 113. On the basis of evidence availttb!e on record, the Cotirt below has convicted and se"te"ced'the appellant under Sect'on 304 Part-I of the India" Pena! Code and sentenced hlm to undergo r'9orous impr'isor'ment for 10 years and-to pay a fme of Rs.50Q/-, i" defoult of payment of fine ttt furthet"; undergo Dgorous i?npr'so)'l!7ter!t for 1 mionth. The evidence cEdducsd on behaif of the prosecution clearly shows that the accused was ha"!n9 k"ow!edge that It rncsy Hks'y to couse d^ath of 1^e deceased and ho.s causssd injury. The rtGt of +he accused/appeliant squarely fa!ls within the ambit of Section 304 Part-II of the Indian Peno! Code and "ot first part of Section 304 of the Indian Penal Code. Lear'ned Court below haS not consider-ed this most importnnt fact and thereby committed illegnli+y In conyicting the appeliant under Section 304 Part-I of the Indi<tn Pena! Code. 14. For the foregomg reasons, Judgment of convictio" a"d order of ^en+ence is not sustajriable under the law o"d requires modifica+ion. The appeal is partly ailowed. Judgment of convic+ion cnd order of sentence is par'tty modified. Instead of convic+io" under Section 304 Part-I of the India" Penal Code the aoDeliant is conyicted uider Section 304 Part-II of the Indian Per'al Code cmd instead of sentence of rigorous imprisonment for 10 years and fine of fts-500/-, in defnult of payment of fine to further undergo rigorous impr'isonment for l month, the appelian.t is ser'tencecl ngorous imprisonment for 5 years nnd fme of Rs.500/-, in defcu't of payment of fine he shQH fL(r''t4'!<sr und^rQO r'i^orous irnDrisonrn^nt for 6 months. B/- :1 :':Sd/-," TRShanna Judge