HIGH COURT QF CHHATTISGARH AT BiLASPUR CrimlnaJ AoDea! No.SI O of 1995 ApDJicant Resoondent ^NN^1 !yatu son of Tingaju Madiya, aged ab-out 28 years, occupation AgricuJturist resident of vilSage Kohakameta, Pojics Station Narayanpur, District Bastar Versus The State of M.P. (now C.G.) thro. P,S. Narayanpur, Djstrict Bastar. Criminal appea! under section 374 (2) of the CrP.C.) SB: Hon'ble Mr. T.P. Sharma.J. Ms Sudha Bhardwaj, counsel for the appeliant. Mr.Pradeep Singh, Pane! iavvyer for theState/respondent. JUDGMENT rORAU (Passed on 29" ^arch, 2010) 1. Chalienge in this appea! is to the judgment of conviction & order of sentence dated 2,2 1995 passed by the Addjtional Sessions Judge, Kanker, In Sessions Case No.272/92, whereby learned Addjtiona! Sessions Judge after holdlng the appellant guilty for the offence punishable under Section 304 Part II of the Indian Pena! Code sentenced hlm to undergo rigorous jmprisonment for seven years. 2. Conviction is impugned on the ground that without there being any iota of evldence, the Court beiow has convicted and sentenced the appelja.nt as aforementioned and thereby committed illegality, 3. Case of the prosecutjon, in brief,is that on 10.9.91 at about 4 p.m. some meeting was convened, during the course of meeting, deceased Bande ieveiled the charge of witchcraft against the appelJant and other persons, then Somaru slapped deceased Bande and the appeJiant assaulted hjm by kitchen stoo! over hjs head, he fel! down and become unconscioys. Dead body of the deceased was cremated, Thereafter, merg intimation was reGorded vide Ex.P/7, F.J.R. was lodged vlde Ex.P/1. K'rtchen stool was selzed vide Ex.P/2. Bloodstained & piajn soll were recovered from the spot vide Ex.P/3. Burn pjeces of bones and ash were selzed vlde Ex.P/4 and sa.me were sent for examlnatlon. After cQmpjetlon of investlgatlon, charge sheet was fiied before the Judlcial IVIagjstrate Flrst CSass, Narayanpur, who jn turn commjtted the case to the Court of Sessions, Bastar. from where iearned Adcjjtjonal Sessions Juo'ge, Kanker received the case on transferfortriai, n •z 4. in order to prove the guiit of the acoused/appeliant, the prosecution has examined as many as 4 wjtnesses. The appeliant along with other co-accused persons were examined under Section 313 ofthe Code. 5. After provlding opportunity of hearing to the parties, Jearned Addjtional Sessions Judge, KanRer whiie acquitting eight accused persons has convicted the present appeiiant as aforementioned. 6. ! have heard learned counse! forthe parties, perusedthe judgment impugned and record ofthe Court below, 7. Learned counsel for the appellant submits that the evidence adduced on behalf of the prosecution to prove the guilt of the appeSlant is not sterijng quality, despite thjs she js not disputing the conviction of the appeliant and praying for tenient vjew in sentence. Learned counse! further sufomlts that the present appeijantwss in custody since 20.9.91 till 31.3.96 and was in custody f6r about 4 years and 6 months on account of causlng aileged one injury, therefore, custodia! period may be treated as sufficient sentence under Section 304 Part II ofthe Inciian Pena! Code, 8. On the other hand, learned State counsel supported the judgment jmpugned. 9. !n the present case, on account of cremation of dead body of the decessed, autopsy was not conducted to prove the injury, but the evidence adduced on behajf of the prosecutjon reveais that the accused has assaujted the deceased over hls head by kitchen stob! on accoynt of sudden quarre! when the deceased ieveiied charge of witGhcraft, 10. Deflnitely, the appe!!ant has caused injun/ without any motive and has caused only sjngle injury. When Bande become unconscious, then present appel'ant ajong with co-accused Somaru took the deceased to his house shows that he ha.s not caused any injury with intent to causjng hjs dleath. 11. The appeliant was in custody since 20.9.91 tit! 31.3.96 and was in custody for about 4 years and 6 months. Considering the mltigating clrcumstances, the custodial perlod js sufficient sentence under Section 304 Part II of the indian Penal Code. 12.Cons©quently,the appea! is partiy aliowed. Conviction ofthe appellant under Section 304 Part II ofthe Indian Penal Code is malntajned, however, instead of rigorous imprisonment for seven years, he Is sentenced to the custodial period i..e 4 years and 6 months, Sd/- T.P. Sharma Judge