IN_THE HIQH GOURT Qff :JU03£%TURE A.T 3H&SPUR CHm.TTISCfe.RTi CEI,. &.. SO. c!~\\ OF 2001 CRIMII.&L a.pofe.L U/S 374 (2) OF CR.P.G. 1973. Raidhar s/o TjsTthS.ra'm Ganda, aged abou-S: 30 yesrs, R/o villagerila;;pur p. S, Basna Dist-c, ha,ssmun(3. (C.G.) V/s &ppe3.1anti Sf.ccused (In jail) Prosecutlons The State of Chhattisgarh through P.S. Basna Qi.stt«: Maha se.mi-ind XI-HC-22 -SSf^fWvW, SrfNTTC, Rtcrtl^y t(5)ch tfTOni shwich OTI^T ..C^,ft...^.^%\ 200^ f^g sn^TT^T R-fi<h3n^T aiiiNiHficr sn^rs^HTWflfeT qrofe^ wRft'ff te^t rfsRCT: ^3rf^T3II^T DIVISION BENCH HQN'BLE MR. L.C. BHADOO & HON'BLE MR. DHIRENDRA MllSHRA, JJ, 14-11-2006 Shri Abhay Tiwari, couns^l for the appellant. Shri G. D. Vasvani, Govt. Iftdvocate for the State/respondent. As agreed to by learned <j finally. Oral judgment dictated on PER L.C. BHADOO, J. ounse! for the parties, appeal is heard Dais. This appeal is directed a^ainst the judgment of conviction and order of sentence dated 30th M^iy 2001 passed by the 2nd A.dditional Sessions Judge, Mahasamund about 6 p.m. in the evening wl n S.T. No.78/2001 whereby learned Additional Sessions Judge after l^olding the accused/'appellant guilty for commission of offence under Secjtion 302 ofthe I.P.C. sentenced him to undergo imprisonment for life. st Case ofthe prosecution, ih brisf, is that on 151 January 2001 at en the accused/appellant along with Shriram were returning home aft^r consuming liquor and they were in drunken condition, they started <tuarrelling on the way, on which Nan Bai and Mangtu intervened and| Sadhni Bai (since deceased) ca separated them. In the meantime, me on the scene of occurrence and asked the accused as to why the^ are quarrelling, on this the accused (ift^^l^) XI-HC-22 SST-^fFIRTIT, »Tfl^'l6,[Slcll'Hy 3TT^?T^iach l|t<ni sh*llt«> ••••••••••••••••••••• ^p]- 200 f^s -<"N. (2-^' SII^rqiT f^iraisn^r Sb1 Hf?(T 9hHI°h 3I1^T5TgT^R:gf?(T ^irafcpfl^T wra¥ir' te^ <Ri«i< ^STf^q'sn^T attacked the deceased with fistsl of which Sadhni Bai fell dowih However, she died at his hous^ Shurulal in the Police Station P/11 was registered. The posf Smt. Jaishree Sahu, Medical and she opined that cause of organ (heart). No extemal injury| |on the chest of Sadhni Bai, as a result She was brought to the house. The matter was reported by PW-3 under Ex.-P/1, on which F.I.R. Ex.- tmortem was conducted by PW-4 Dr. F, Community Health Centre, Basna tleath is shock due to rupture of vital Imarkwasfound. Babna Ofilicer After usual investigation, Judicial Magistrate, 1 Class, Ms case to the Sessions Judge, Ra(] Sessions Judge received the ca^e ^harge sheet was filed in the Court of ^hasamund, who in turn, committed the Ipur from where learned 2 Additional le on transfer. The prosecution in orde) accused examined 4 witnessels recorded under Section 313 ofl material appearing against him that he is innocent and has However, Learned Additional counse! for the parties and convicted and sentenced the to establish the charge against the- Statement of the accused was the Cr.P.C. in which he denied the jn the prosecutionevidence and stated (>een falsely implicated in the crime. fessions Judge after hearing learned (jierusal of the evidence and record as aforementioned. acdused We have heard learned c4unsel for the parties. Shri Abhay Tiwari, did deceased Sadhni Bai. Apart frijim not dispute the homicidal death of that, from the medical evidence of (Ift^y^) .^_^B^5TtE7%tw^S*^f XI-HC-22 3:^'?qraRPT, ^Tfty'is, R<'iiyy 3TT^T c^ VS^h KIHWI ai*ii<*i WT 200 fg^i% sn^rw R-fitbsn^r shlithtlfScT ShHltl 3n^T?TBTWfff?(T qiTiifeft-i'iiTiRrr'ir'tecft rfsRsK ^sri^R'sn^r artd PA/-4 Dr. Smt. Jaishree Sahu Ram, it is established that the d! nature. the ocular evidence of PW-2 Ghurau ath of the deceased was homtcidal in As far as involvement question is concerned, learned not dispute that. PW-2 Ghurai| about 7 p.m. he was standing oi| was in drunken condition and and both were quarrelling and Mangtu intervened and separate|: (since deceased) came on the quarrelling, on which the accuse|d with fists, as a result of which Sa| to Sadhni Bai and took her to h( ^ . .. injurlgp. In the cross-examinati< been able to elicit any circumsts witness unreliable or untrustwort witnessed the crime in questi deceased with fists on her ct accused in the crime in question the accused/appellant in crime in [counsel for the accused/appellant did Ram has stated that on 1-1-2001 at the Chowk, at that time, the accused ghriram was also in drunken condition abusing each other. Nan Bai and them. In the meantime, Sadhni Bai scene and said why you peopfe are attacked on the chest of Sadhni Bai ihni Bai fell down, they provided water sr house where she succumbed to the |n of this witness the defence has not ihce which makesthe evidence of this |y. He is an independent witness who »n when the accused attacked the i|sst. Therefore, involvement of the fe established. Learned counsel for the a evidence on record the prosecul the accused attacked the 'decea' In fact, as per the evidence of r ~", ^cused/appellant argued that from the it>n has not been able to establish that )ed with intention to cause her death. !PW-2, when the deceased asked the (^y^) ^ i XI-HC-22 Sll^T^iT f^iNisn^r OTWHfer Tsi^nwvpf, W-AWIQ, Rirti+fy 3TT^T 4 ("2£ ^STt.h <n*iwrsh*<i'h V^ 200 fol'b^i 3Tr^r?TgT^Kflf?a' accused and his nephew as to ^ the accused assaulted the det proved fatal and Sadhni Bai suc|c against the accused does not t( I.P.C. On the other hand, learfied supported the judgment of the trj In order to appreciate counsel for the accused/appell^i PW-2 and we are of the considet learned counsel for the accusedl merit. PW-2 Ghurau Ram has nephew Shriram were quarrellii and she asked them as to why tl^i moment, the accused, all of a s| chest with fists which proved Therefore, from the above evi( accused assaulted the deceas( However, the manner in which tt her chest with fists, it can safely with fists, the accused had knov death, therefore, offence against 304 Part-11 ofthe I.P.C. is made qipfeifrr iniRff ff fgtd'rfSreen: ^ari^iTST^sr iy they are quarrelling, all of a sudden, eased with fists on the chest which ;umbed to the injury, therefore, offence avel beyond Section 304 Part-11 of the counsel for the State/respondent Court. the argument advanced by iearned nt we have perused the evidence of ed opinion that argument advanced by appellant canoot be said to be without itated that when the accused and his ig, the deceased came on the scene ey are quarrelling, without waiting for a idden, assaulted the deceased on her fatal and she died after some time. lence, it cannot be inferred that the 'd with intention to cause her death. ke accused assaulted the deceased on |be inferred that by assaulting on chest I'ledge that he may likely to cause the |the accused punishable under Section lut. (<N;^f^) XI-HC-22 sn^rqiT R-<jch3n^T st>li<o<rf?<T Barve ^^, ^' rV ^ tTWdi sh*<icn 3^ '^[•lllct'4, ^^'l<o, (Sf<-1l<rl^< 3< 1^1 ^a<h g^ 200 <^ f^% an^TSTdTWHfSff In the resuit, the appe|i sentence Imposed upon the a((< the l.P.C. are set aside, insteac) 304 Part-il ofthe I.P.C. and sent accused is said to be in detentioh accused/appellant shall be entil period against the sentence imp<| Consequently, M.(Cr.)P. stand disposed of. Sd/- L.C.BHADOO Judge qirafepft^ TORft'ff te^t :rf^Rsn: ^Slf^TTSn^T ,ai partiy succeeds. Conviction and |cused/appel!ant under Section 302 of thereof he is convicted under Section snced to undergo R.l. for 7 years. The since 3-1-2001 till date, therefore, the lled for set off for the above detention (ised upon him. lNo.1936/2005 and I.A. No.2714/2005 ^- ('ft^^^t) :iUi.i :^!: