HIGH COURT OF CHHATTISGARH : BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ. APPELLANT (In Jaill RESPONDENT Cr.AppealNo. 203 of 1993 : Amarjit, son of Shivratan Chamar, aged 26 years, resident of Udhanapur, PS Chirmiri; Tahsil Manendragarh, District Sarguja M.P. now C.G. Versus The State of M.P. (now Chhattisgarh) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CR.P.C. Appearance: Shri Rajesh Jain, counsel for the appellant Shri Sandeep Yadav, Deputy Government Advocate for the State JUDGMENT (Deliveredon 18.03.2010) The following judgment was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.02.1993 passed by the Additional Sessions Judge, Manendragarh in Sessions Case 'No. 70/91 whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Mannu @ Triveni, the learned lower Court convicted the appellant under Section 302 ofthef.P.C and sentenced him to imprisonment forlife. 2. The conyiction of the appellant is impugned on the ground that without iota of eviderfce, the Court below has convicted and sentenced the appellant and thereby committed the errpr. 3. Brief facts of the prosecution story are that on 10.08.190 at about 12.00noon the appellant, who is the neighbour of the deceased - Mannu, quarrelled with Mannu and at that time brother of the deceased - Jamuna Prasad was there'. As a result of quarrel, the appellant went inside his house li i) ! " " 'i" 3 -2 and came with bamboo stick and after abusing them assaulted Mannu over his head and chest due to which Mannu fell down and other persons snatehed that stick from the appellant and appellant fled from the spot. P.W.1 Jamuna Prasad went to the police station and lodged the F.I.R. vide Ex.P.1 which was recorded for the offence punishable under Section 294, 506 and 323 of the I.P.C. Mannu was sent for medical examination vide Ex.P.8 and he was examined by Dr. R.R.Gajbhiye P.W.9 vide Ex.P.SA and found one lacerated wound about 1 %" x %" x %" over skull on frontal side, Deformity on the left clavical bone, unable to raise the hand and unable to speech. Mannu was admitted for observation. The injured P.W.1 Jamuna Prasad was also examined by P.W.9 Dr. R.R.Gajbhiye and Jamuna Prasad was complaining of pain over right side of the wrist. 4. ' During the course oftreatment, Mannu hasdied on 13.08.1990 at 4.00 a.m. Inquest over the dead body of Mannu was prepared Ex.P.12. Dead body was sent for autopsy to Government Hospital, Chirmiri. P.W.9 Dr.R.R.Gajbhiye conducted autopsy and found the multiple abrasions over left side clavical area, stitched wound was found on the left side of head (scalp) and depressed fracture of tempero-parietal region. Death was homicidal in nature. Spot map was prepared vide Ex.P.7. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. 5. After completion of investigation, charge sheet was filed before the J.M.F.C. Manendragarh who in turn committed the case to the court of Sessions, Ambikapur. The learned Additional Sessions Judge received the case on transfer for trial. S 6. In order to prove -the guilt of the appellant, the prosecution has examined as many as 10 witnesses. The accused was examined under Section 313/of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded his inr^cence and false implication. 7. After affording opportunity of hearing to the parties and after appreciating the evidence available on record, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. .^aaiae - 5 - 8 . We have heard learned counsel for the parties and perused the impugned judgment including the record of the trial Court. 9. Shri Rajesh Jain, counsel for the appellant vehemently argued that the evidence of P.W.1 Jamuna Prasad, brother of the deceased - Mannu does not inspire confidence on aceount of his injury report and evidence of P.W.9 Dr. R.R.Gajbhiye clearly revealed that he examined Jamuna Prasad on 10.08.1990 at about 11.30 a.m. i.e., before receiving injury. Lodging of F.I.R. revealed that the prosecution has concocted the evidence and had not come before the Court with clean hands. It was further argued that the evidence of other witnesses i.e. P.W.3 Narbadiabai, wife of Jamuna Prasad P.W.1 and Jankibai P.W.4, mother ofthe deceased, who are interested witnesses, does not inspire confidence and trustworthy. Counsel for the appellant also argued that even otherwise if the case of the prosecution is considered in its evidentiary value, then it revealed that a quarrel took place between the appellant and family members ofthe deceased including the deceased. The appellant went inside his house and came with a bamboo stick and on a heat of passion he lost his temper and assaulted the deceased by that bamboo stick and thereby caused injury which was not dangerous and only offence punishable under Section 294, 506 and 323 of the I.P.C. was registered against the appellant. It was also argued that subsequently, on account of failure of proper treatment, the injured - Mannu has died on 13.08.1990 which clearly shows that the appellant has not caused any injury with intent to cause culpable homicide amounting to murder of the deceased - Mannu. He further argued that at the most the case of the appellant may fall within the ambits of Section 304 Part II of the I.P.C. Lastly, it was argued that the appellant was in custody since •}2.08.90 and was released on bail on 11.4.2002 i.e. after a lapse of more thanll years and the custodial period would be sufficient for coriviction and sentence to the appellant in case of conviction under Section 304 Part II ofthe I.P.C. ^ / 10.' On the other hand, SK^Sandeep Yadav, learned Dy. Government Advocate for the State that.the conviction is based on the evidence of P.W.1 Jamuna Prasad and Narbadiabai P.W.3, wife of Jamuna Prasad, P.W.4 Jankibaiand their evidence inspires confidence and trustworthy and sufficient for conyiction of the appellant. As regards discrepancy relating to timeof examination of injured witness Jamuna Prasad P.W.1 is concerned, 1 SwS"^^ • ^^^.^•;~" ' ' r - M- although P.W.9 Dr. R.R. Gajbhiye has stated that he has examined Jamuna Prasad on 10.08.1990 at 11.30 a.m.on the basis of EX.P.9A but the documents of the prosecution including the F.1.R. revealed that at about 6.45 p.m. the F.1.R. was recorded on 10.08.1990, then the injured Mannu and Jamuna Prasad were sent for examination. It appears that Jamuna Prasad was examined by the Dr. R.R.Gajbhiye P.W.9 at 11 .30 p.m. but erroneously it has been mentioned as 11.30 a.m. 12. In order to appreciate the arguments advanced by the learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, the homicidal death as a result of injury of Mannu has not been substantially disputed by the appellant on the other hand it has been also established by the evidence of P.W.9 Dr. R.R.Gajbhiye and the injury report Ex.PSA as also autopsy report Ex.P.10. Death was homicidal in nature. 13. As regards the complicity of the appellant in crime in question, the conviction is based on the evidence of eye witness P.W.1 Jamuna Prasad, P.W.3 Narbadiabai, wife of Jamuna Prasad P.W.1 and P.W.4 Jankibai, mother of the deceased - Mannu. These witnesses are relative witnesses. They have deposed that at time of incident some quarrel took place between the appellant and Ammelal and other persons near the house of P.W.1 Jamuna Prasad. Then the appellant went to his house and came with bamboo stick and abusing them caused injury to Mannu, due to which, Mannu fell down. They have shifted Mannu to the hospital. Evidence of these three witnesses clearly revealed that there was some quarrel which took place between the parties ari^ then the appellant went inside his house and came with bamboo stick andassaulted the deceased - Mannu which shows that the appellant -has no intention for causing injury to Mannu and after the injury caused on a spur of moment by losing temper on account of quarrel. Th?' injury was examined by Dr.R.R.Gajbhiye P.W.9 but primarily no fatel injury was noticed. Duijpg the course of treatment the deceased - Mannu died. 14. Inthepresentcase.thefollowingcircumstancesemerge: i) Use of bamboo stick, a lighter weapon. .;• .If ^tf -5 ii) Causing injury on a spur of movement after losing temper. iii) Absence of visible grievous injury. iv) Absence of any other case for causing such injury. All the above circumstances revealed that the present appellant has caused injury to Mannu on a spur of moment by losing his temper but has not caused such injury to Mannu with intent to cause his death. The act of the appellant is squarely covered under Section 304 Part 1 ofthe I.P.C. 15. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 ofthe I.P.C. is altered to Section 304 Part 1 ofthe I.P.C. and he is sentenced to imprisonment for custody period i.e. from 12.08.190 to 11.04.2002 i.e. for more than 11 years, which he has suffered. Since the appellant is already on bail, his bail bonds stand discharged. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 7 < i, f1 ".-J-S'i