8thgteBe IN THE HIGH COURT OF CHH^TISGARH AT BILASPUR, CRIMINAL APPEAL N0. '/II OF 2009 APPELLANTS ^ -..•(^' .x^%^' .^'"''_.,«>r<i'"'^ ...^%?^-' ..^•t'-\'y'?..''"' ^•^'<^y^ t^ ^s' 1\D-'~ RESPONDENT: 1. Rajesh Kumar, S/o Shri Hiralal, aged about 26 years. 2. Rakesh Kumar, S/o Shri Hiralal, aged about 30 years. Both are resident of village Sajapahad, Police Station Pondi, District Korea (CG). Versus State of Chhattisgarh, Through : Dista'ict Magistrate, Korea(CG). MEMO OF APPEAL UNDER SECTION374 (2) OF THE CODE OF CRIMINAL PROCEDURE Hon. Nr. .lystsce Pritinker Djwaleer) .-^ff-a ^:?-.-^. "°• ^w _€ .-h,4? '^^^tft ^'^Ajl. ^g|" ^a Ralesh Kumar and another VEP.SUS IT State of ChhattisQarh Stiri s. R. J. Jalswa!, counsei :ne apDeilants. <~'L*.-: \f:t^^,l^ f* L. .—.^^^,.-,. ?^ t .4;^ ,- 4-E-<» r"-.^.-^,"..^, onn viveK .snarma, r'.L. ror cne ^iaLe, ^B^U; ! E • OF^RZM TS.S .^. ? a^w'^k^w"?^? ?a-&: ^^-"'^•"s •^^^ T;e present appeal anses out of the judgmenf and order dated 17.09.2009 passed by Sessions/Specjai Judge, Korea. Baikunthpur in Sessions Trial No. 05 of 2006 convjctlna the accused/appeilants under Sections 304 part 1/34 and 32.6/34 of IPC and sentencina each of them to underao riaorous imprisonment for 10 years and pay fine of Rs.l/JOO u/s 304 part 1/34 and rigorous jmprisonmenfc ror 5 ysars and pay fine of Rs.500 u/'s 326/34, pfus ciefault stipuiations. Both the sentences were djrected to run concurrentlv. 2 Brief facts of the case are that on 15.08.2004, inti'matlon EX.P-I vvas given by Ramdayal (PW-1) statlng therein that on tnat day yrfhen the deceased Snyama and Adesh Kumar (PVV-13) were returning after attending the functlon of sndspendsnce day, the accused/appetlants assaulted them by axe and club as a result of whjch Shyama died and Adesh Kumar suffered various injuries. Based on •th-is report, FIR Ex.P-2 was reaistered on 15,Q8.2004 under Sections 307, 302 read wlth Section 34 of IPC and 3 ('l) (x) of .Scffed.yled ' Castes and Scheduied ,Tnbes. (Prevention of Atrocstiea) Act (for short *the Act'). After co.mpletion of ^,.!?^\ :-,-11 y / i'-"1^' -!:~'' -3.- ...eilSSiN SS!1:33;!S s'y jnvestigafc'on Challan was filed on 05.10.2004 307, 302, 325 read with section 34 of I.PC and 3 ( Act agajnst the accused/appellants. However,. the framed charge against them under Sections 30. with section 34 and 3 (2) (v) of the Act. section ,) (x) Qf the court below 307 read lants gulity, of its case. 3. So as to hold the accusecl/appei has examlned 17 witnesses in support of the accused/appeiiants were also recorded under section 313 of the Code of'Crimlnal Procedure jn whlch they denied the charges level'sed against them and and faise impjicatlon Sn the case. 4. After heanna the parties the accused/appel!ants or the 307 and of IP'C and 3 (2) (v) sentenced them for the ofrence and 326/34 of IPC. tria! Court 'nas acaujtted nces under Sectlons 302, :he Act but convicted and ler Sections 304 part 1/34 5. Heard counse! for the parties and per available on record inctuding thejudgment t'mpugned. 6. Learned counsel f'or the appeiiants submlts that he Is not pressinq this appeal as far as it relates to convictlon part of the impuQned ludqment and would confine his argument to the sentence parfc thereof only. Accordlng to hlm, the appellants are young persons, they are in jait since 17.08.2004.i.e. last 6 years and 7 months, that the sncident took place ali of a sudden because the dsceased used to tease the slster of the appellan.ts and there is no previous crimlnai record against tnem, no useful purpose would be served in keeping them in jall and st woutd be in the Interest of justice If t'ne sentence imposed on them is reduced to tha period al.ready underaone bv them, ' SSiiM'f --3- 7. On the other hand supporting the impugned judgment it has been argued by the learned State counsei that as the trial Court has already taken a lenient vjew whlle passina the jmpugned judgment. the sentence imposed on the appeilants isjust and proper and tHere Is no need of interference, 8. Accordingly, the appeal is partly ailowed, Convlction part of the impuQned ludqment ls maintained but lookina to the facts and circumstances of the case, In Darticular, both the appellants are •• young persons,. they are ln jail • since 17,08.2004 i.e. about 6 vears and 7 months, that the incident took piace a!l of a sudden because the deceased useci to tease the slster of t.ne apDeilants and there is no previous crimsnai record against them, the Jail sentence imposed on them is reduced to rlaorous jmDrisonment for 7 years from that of 10 vears as has been done by the Court below. However, in II thereQf. the appeJjar.ts are dlrected to pay a fine of Rs. 5,000 eacn In additlon to the fine amount awarded by the triai Court totailng Rs.10,000 which would be pald to tne wife of the deceased Panmats (PW-2). As ttie appellants are aiready in iait, thev be set free after comptetion of the iai! sentence of 7 years. Both e appeltants wouid aet the advantage of this judgment, if they deposlt the fine amounfc imposed on them by thls Court as weii as by the triai Court, 9. A-Dpeal thus oartiv succeeds. Sdf- Pritinker Diwaker -:-. • JM^ge '