@ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar JJ. Criminal Agpeal No. 1040 of‘ 2004 Appellants 1) Sidhun Ram s/o. late Somar Sai, (in jail) Caste-Kanwar, occupation — Agriculture, aged 32 years. 2) Kishun Singh, s/o. Late Somar Sai,’occupation Agricuture, age 22 years. Both r/o. village Katkona, P.S. Lakhanpur, District Surguja, C.G. Vs. Respondent The State of Chhattisgarh through S.H.O. P.S. Lakhanpur, District Surguja,C.G. (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. P.L. Swarnakar, counsel for the appellants. Mr. D.K. Gwalare, Govt. Advocate for the State. ORAL JUDGMENT v (Delivered on 9—8—-201 1) Per TP .. Sharma, J. 1. So far as appellant No.1 Sidhun Ram is concerned, the appeal stands abated as he died on 20-7-2009. Challenge in this appeal is to the judgment of conviction and order u of sentence dated 4-11-2004 passed by ii Additional Sessions Judge, Ambikapur, Surguja, in Sessions Trial No.357 of 2004, whereby and whereunder while acquitting co—accused Bisun Singh, @ Iearned Additional Sessions Judge after holding the appellants guilty for causing homicidal death with intent to cause death of Shibodhan in furtherance of common intention and causing injuries for attempting to murder of Jugmaniya Bai and causing injuries to Ramcharan, convicted the appellants under Sections 302, 307 and 324 read with Section 34 of the IPC and sentenced to undergo life imprisonment and tine of Rs.100000/-, RI for five years and tine of Rs.5000/ and RI for one year and fine of Rs.100/— respectively V . With usual default clauses. Conviction of the appellant is impugned on the ground that without :5 there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of prosecution, on 24-6-2004 in the morning appellants called Panchayat meeting in their house where Shibodhan was also present along with villagers. In the Panchayat meeting there was some altercation between the appellants and Shibodhan regarding correcting the house of appellants from witchcraft by one “Devar”. Thereafter, they entered into compromise and when the appellants were taking meals in the house of complainants, again quarrel took place between them and appellants assaulted Ramcharan by stick and brick. When unfortunate deceased Shibodhan came to intervene the incident, appeilants also d assaulted him. After hearing the sound of quarrel, Bisun came to "the spot who also assaulted Ramcharan and Shobodhan and when Jugmaniya Bai (PW/1) came to intervene the incident, she t; \ @ them they fled away from the spot. r A was als_o assaulted by the appellants. After causing injuries to Shibodhan fell down and became unconscious. 5; Jugmaniya Bai (PW/1) went to Police Station and lodged first information report vide Ex.P/1 and spot map was prepared by Int/estigating Officer vide Ex.P/2 and Ex.P.3 was the spot map prepared by Patwari. Injured were sent for medical examination to Community Health Centre, Lakhanpur, where Doctor Prem Singh Marka (PW/10) examined Shibodhan vide EXP/19 and found the following injuries; i) superficial abrasion over right knee; ii) two abrasions over fight thigh of 6X2cm and 5x2cm; iii) swelling over right palm; iv)swelling over forehead ‘of 4x3cm; iv) swelling and abrasion over right parietal region of 3x2 cm. Injuries were caused by hard and blunt object. Injured Ramcharan was also examined by Doctor Prem Singh Marko (PW/1 O) vide Ex.P/20 who found the following injuries: i) one Iacerated wound over left temporal region of 06cm x01cm x 01cm; ii) Iacerated wound over parietal bone of 02 cmx2cmx01cm; iii) disfigurement of left hand. Injured Jugmaniya Bai was also examined by Doctor Prem Singh Marko (PW/10) vide EXP/21 who found the following injuries; i) swelling over right elbow region and ii) supemcial abrasion over left wrist vertical region. 6. During the course of treatment Shibodhan died on 24-6-204 and t intimation thereof was sent to Police Station vide Ex.P/22. On the ' basis of Ex.P/22, merg was recorded by Police vide Ex.P/30 and after summoning the witnesses vide Ex.P/5, inquest over the dead @ body of deceased was prepared vide Ex.P/4, blood stained soil and plain soil were recovered from the spot vide Ex.P/11, dead body of deceased was sent for autopsy to Government Hospital, Lakhanpur vide EXP/31 where Doctor Prem Singh Marko (PW/10) conducted postmortem vide EX‘.‘P/13 and found the aforesaid injuries and fracture of frontal and right bone and brain tissue came out and brain was ruptured and opined that cause of death as a result of l ‘ brain hemorrhage due to fracture of frontal and right parietal bone andudeath was homicidal in nature. During the course of investigation accused/appellant Kishun was taken into custody and he matte a discl’osure statement of stone vide Ex.P/9 and same o was recovered at his instance vide EXP/7 and other articles were also recovered from other co-accused. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, ,who in turn committed the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge, received the case on transfer for trial, who framed charges under Sections 302, 307 and 324 read with Section 34 of the lndian Penal Code against the appellants who abjured‘ the guilt. ln order to prove the guilt of the appellants, prosecution examined as many as fourteen witnesses. Accused/appellants were examined under Section 313 of the Code of Criminal Procedure, J where they denied the circumstances appearing against them and p leaded innocence and false implication. \ 9. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appeliants as aforementioned. We have heard Iearned counsel for the parties, perused the judgment impugned and record of the trial court. 11. Mr. P.L. Swarnakar, learned counsel appearing for the appeilants vehemently argued that conviction is based on the evidence of PW/1 Jugmaniya Bai, PW/12 Ramcharan and injured witness PW/2 Dashfmeth Shankar, PW/5 Ramadhar Singh and PW/8 Panduram. The evidence of these witnesses are contradictory and do not A inspire confidence and trustworthy and same is not safe to rely for conviction of the appellants under Sections 302, 307 and 324 read with Section 34 of the IPC. He further submits that out of three accused, accused - Bishun Singh has been acquitted by the court below and accused Sidhun died during pendency of the appeal. The appeal tiled on behalf of present appellant Kishun remains for consideration. Learned counsel further submits that as per evidence of prosecution witnesses, on account of some dispute, quarrel took place between the parties, thereafter they entered into compromise and when appellants were taking meals in the house of complainants again quarrel took place and all three persons caused injuries to deceased, Jugmaniya Bai and Ramcharan which shows that the incident took place on a sudden provocation u and sudden quarrel without pre-meditation. Except one injury found "Over the head of Shibodhan, other injuries caused by the appellants were simple in nature and found on non-vital parts of '1'0. @ the body which shows that the present appellants alon'g with other cd-accused have not caused homicidal death of Shibodhan with intent to cause his death. Thus, the act attributed to the'present appellant does not travel beyond the scope of Section 304 Part ii of the IPC. Present appellant is in custody since 26-6—2004 and has completed more than seven years which is sufficient sentence to the present appellant after death of co-appellant —Sidhun Ram. 12. On the other hand, Mr. D.K. Gwarem learned Govt. Advocate for the ‘State opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sumcient for drawing r £ inference that the present appellant along with other co-appellant committed the aforesaid offence and the court below has rightly convicted and sentenced the appellant as aforementioned. 13. in order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. ln the present case, homicidal death as a result of fatal injuries over the body of deceased Shibodhan has not been substantially disputed on behalf of the appellant. On the other hand also it is established by the evidence of Doctor Premsingh Marko (PW/10), injury report Ex.19 and autopsy report vide EXP/13, death of Shibodhan was homicidal in 'nature and the injuries found over the bodies of Jugmaniya Bai and Ramcharan have not also been . disputed on behalf of the present appellant. On the other hand it is also established by the evidence of Doctor Prem Singh Marko ‘ (PW/1 0) and medical examination reports vide Ex 20 & 21. As regards complicity of the appellant in question, conviction of the appeiiant is based on the evidence of injured witnesses Jugmaniya Bai (PW/1) & Ramcharan (PW/12) and the evidence of P.W/2- Dashmeth Shankar, PW/5-Ramadhar Singh & PW/8-Pandu Ram who have witnessed the incident. As per their evidence, previously both parties quarreied with each other, they entered into compromise and thereafter when appeiiants were taking meals in ‘ the house of compiainant party after compromise, again quarrel tooio place, then all the appellants caused injuries to Shibodhan, Jugmaniya Bai and Ramcharan as a resuit of which Shibodhan A died. « Defence has cross-examined the aforesaid witnesses at length but has not been able to elicit anything in their cross-examination to show that the appellants have not caused injuries to them along with other accused persons and they have not seen the incident. PW/1 Jugmaniya Bai has deposed in para 1 of her evidence that at the time of incident, accused Sidhun Ram and Kishun Singh were taking meals in her house, thereafter, the incident took place. They used stone and stick in the said incident. The evidence of this witness is sufhcient for drawing inference that the present appellant along with co—appellant Kishun Ram caused homicidal death of Shibodhan and caused grievous injuries to Ram Charan and simple injuries to Jugmaniya Bai. 17. As regards intention is concerned, as per evidence prosecution l Witnesses, incident took place all of a sudden without pre- t th“e! meditation and on sudden quarrel. Except one injury found over v the head of deceased Shibodhan, other injuries were found on non- vital parts of deceased and no fatal injuries were caused to Ramcharan and Jugmaniya Bai as per medical examination reports. This shows that present appellants caused homicidal death on a sudden préVocation and sudden quarrel without pre- meditation, but at the time of causing such injuries they were having sufficient knowledge that by such act the deceased may die. They have caused injuries to Ramcharan and simple injuries to l Jugmantya Bai by pelting stone and stick; In these circumstances, the act of the appellant Kishun Singh does not travel beyond the scope of Section ‘304 Part ii of the IPC. While convicting the appellant along with co-appellant Sidhun- Ram under Section 302, 307 and 324 read with Section 34 of the IPC and sentencing them to undergo imprisonment for life, the trial Court has not considered the circumstances in which the incident took place, nature of injuries and weapon used .and thereby committed an illegality. 18. For the foregoing reasons, the appeal is partly allowed while maintaining conviction of the appellant Kishun Singh under ' Sections 307 and 324 read with Section 34 of the IPC, conviction under Section 302 of the IPC is altered into Section 304 Part ii of the IPC. Instead of life imprisonment and fine of Rs.1,00,000/— under Section 302 of the IPC, appellant Kishun Singh is sentenced to undergo Rt for custodial period. i.e., more than seven years and one month and tine of Rs.2000/-, in default of payment of fine to undergo additional Rl for three months. He is in custody since Hiu a ‘Vsa/— T.P. Sharma Judge 26-6-2004. He shall be released forthwith, if not required in any other case. Sd/Li R.N. Chandrakar Judge