HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. R. L. JHANWAR JJ. x CRIMINAL APPEAL No. 47612004 Apgellants 1. ’ ‘Anil Patel, S/o Budhram Patel, (In 10.9.03) jail since aged about 34 years. Vishram Patel, S/o Gosairam Ram Patel, aged about 36 years, Occupation Sarpanch, Both R/o Gram Mohtara, Thana & Tah. Shivrinarayan, Distt. Janjgir—Champa (C.G.) Respondent VERSUS State of Chhattjsgarh, through _ P.S. Shivrinarayan, Distt. Janjgir~ Champa(C.G.)‘ «i w ORAL-JUDGEMENT (Passed on 1 1/2/2010 The following iudgment of the Court was passed by N T.P. Sharma J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 14/5/04 passed by Second Additional Sessions Judge (F.T.C.), Janjgir, Janjgir~Champa in Sessions Trial No. 69/2004 yvhereby and Where under after holding the appellants guilty for the commission of culpable homicide amounting to murder of District ) 16. Autopsy was conducted by PW13 Dr. K.K. Thawait Vide EX. P—17 and found following injuriesz— (1) One ’ laderatec'i wound of 2" x 1/2 c.m. x 2 c.m. in circle shape over occipital region, comprising multiple fracture o occipital bone. (2)— Lacerated wound of 11/2” x 1/2 c.m. X 1/2 c.m. over temporal bone. Death was homicidal in nature. Plain and blood stained soil were recovered from the sport vide EX. P—9. One stick was recovered from the Binda Prasad vide Ex. P—6: Spot map was prepared vide Ex. P— 22. Patwari also prepared spot map vide EX. P-S. Nembai was examined by PW13 Dr. K.K. Thawait vide EX. P— 19 and found swelling. Seized articles were sent for chemical examination vide Ex. P-25. Presence of blood was confirmed over the stick. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge-sheet was filed before the Judicial Magistrate First Class, Janjgir who in turn committed the case to the Court of Sessions, Bilaspur; Learned Additional Sessions Judge received the case on transfer for trial. In order to prove the guilt of the accused/appellants prosecution examined as well as 14 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against \ ‘ f them, innocency and false implication is claimed. They have also examined the defence witness Sushil Kumar Patel who has deposed that Anil Patel and Binda Prasad were quarreling then Dalgirha came thereby he received injury over his head. 7. After affording an opportunity of hearing ‘to the parties learned Additional Sessions Judge convicted and sentenced the appellants aforementioned. 8. Learned counsel for the parties are heard. Judgment impugned and record of court below perused. 9. Learned counsel for the appellants vehemently argued that evidence of PWI Binda Prasad, PW2 Manharan, PW4 Nembai i's not disputing, the injury found over the body of the Dalgirha and homicidal death of deceased Dalgirha has not been substantially disputed by the appellants, on the other hand, it is also established by the evidence of PW13 Dr. K.K. Thawait and autopsy report Vide Ex. P-19. 10. Learned counsel for the appellants further argued that it is clear from the evidence of the prosecution Witnesses‘ that‘ originally there was dispute between PWI Sushil Kumar Patel and appellants regarding Rs. 3IOO/— during course of dispute appellants abuse Binda and even they tried toassault the Binda at the same time deceased Dalgirha came and he objected the appellants then on sudden provocation the appellants have caused single blow by 'each appellant over the head of the deceased then they went away from the spot. They have not caused repeated assault it shows that they have not caused any injury with intent to cause the death of the deceased and their act may be punishable under Section 304 Part —II of the Indian Penal Code. > 11. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that they are intentionally caused the homicidal death of the deceased punishable under Section 302 of the Indian Penal Code. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 13. In the present case homicidal death of the deceased Dalgirha' is not disputed. Appellants have caused single injury by the each of the appellant is also not disputed. The entire episode shows that appellants and Binda were quarreling for Rs. 3100/~ and even they tried to maka ass‘ault to the Binda at'that time deceased Dalgirha came when he was advising the appellants then they caused injury over the head of the deceased. They have not caused repeated injury. There were 2 injuries was found over the body of the deceased. They were having an opportunity to kill the deceased but they have not caused \ t l2. appellants. ‘ Sd/— R.L. Jhanwar Judge 5df~ ' ' T‘P. SHARMA ‘ Judge ' t n i r r repeated injury shows their intention although they were having knowledge that by causing injury over the head the deceased may die. The case of appellants squarely falls Within the ambits of under Section 304 Part-II of the Indian Penal Code 14. For the foregoing reasons, the criminal appeal is partly allowed. Conviction of the appellants under Section 302 of the Indian Penal Code is altered into under Section 304 Part II of the Indian Penal Code and sentenced rigorous imprisonment for 7 years and fine of Rs. 100/— in default additional rigorous imprisonment for l month for both the