‘\ z / '~ lllHlH llllWlilMHI\lI\l cFooooae a. ”géj’é/ N 9972(« i‘ather‘sr name N m7 34775— Residence §Z9 .Qq—AJ (m W3 gma 7P7 WWM Eqmwmw ,H M“ ...L.-‘_~. Senenced @0 31 ‘5’“ h // g /2g__-_ ,U Llraiarm’l ‘7 Under secticgtigé’r l: a (;7mi§_w7.: bYéUK (37mw’m%@‘k ..,.__... .._.,N.‘.._~..~.,.*....k_..._.‘... ¥ ‘ ,. it is ex‘wlained to the prxgonu‘ tmt if ha gkutob or w¢§bc~ Le be renresented bv legal placutloner thgAlppufate Courf will not proceed with the bage for seven days uh’ltss the legal practitioner abpears. It the legal pract4» Mnor does nut” appear with—in seven days he my not nearc‘ at alJ . If Elie yrismmr state.) that he does not wish to n legal practlotnmer the court may proceed case dnd_.vill not be obliged to give a hecr‘ practitioner who shoule appear. Yepresented by 1' oace With Hie NJ to any lEgal 1. Date of Application for copy of Judgement M‘Lgg‘ggmwn m 2. Date of which copy reoeiveai ’8» '1 ‘ 11ml” - lélm ’ Whether the prisoner Wsncd to be repx No. .‘H ~[q‘__”w Name ._ 9+1< [\I Continued in kzJy N - .lxiQge? Forward to the to gather which av copy of order oassed Jn t1 EhJse Eor favour of transmissi n to the n over nooelliate Co Superintendent Date of receipt in C.J.M‘s Office Date 01" receipt Ifecord to accompany Memo of 3.‘ Date on which appeal sent w -u.._ .. -......-... e “.ul 4...... _ “so z/ ecu 9U Dated seawnwy @W We f5Ci’V) “vi/ Appeal of; the Appeliate Court NO. _'.‘____‘ _ __’_ L“ 'Dated Forwarded to the C . J. Ma gistrc’m Date of receipt in Appeliate Court / _ t O W _ )il-HC-78 HW,W§,W aA/e kQi 5 oi} / of . »...~o.o‘.yo.~.~.‘ .. WWW WWW Wafgam WW(WEW) WW&WW é;aw%cran%v DIVISION BENCH -: HON’BLE MR. LC. BHADOO, Ag. C.J. & HON’BLE MR. SUNIL KUMAR $INHA, J. 17.01.2007 Shn‘ Abhay Tiwari, Cour Lscl for the appellant. Shri Necraj Mehta, Pan :1 Lawyer for the State, Heard. Oral judgment dictated ‘m Dais. Justice; This appeal is dimcted and order of sentence dated 1 Sessions Judge, Suxajpur D Tn'al N0. 116/ 1998, whexeby, holding the accused/app under Section 302 of the imprisonment for }ife and to payment of dne to flu‘ther un that the accused] appelhnt is The case of the pmse at about 5:00 p.m., in the Vic accused assaulted the deceas head, on account of old ani Singh sustained injmy g 01 b Chi As er L.C. Bhado against the judgment of conviction [3/2001 passed by the Additional strict — Sarguja (C.G.) in Sessions Additional Sessions Judge after guilty for commission of on‘ence IPC, sentenced .hinl to undergo y a tine of Rs. 1,000/- , in default of ergo R.I. for 1 year. It'is mentioned in detention since 12/ l 1 / 1997. on, in brief, is that on 09/ 1 1 / 1997 inity of Govindpur, Village a Kumda, ed with an iron rod (crowbar) on his mosity, as a result of which, Prom i head, fell down and became P.T.O. s c t e ‘ XI—HC»78 ' ..C8.Q..r..é. 11mm §¢‘O‘ o; v~%\ 0 / 200 mm(W> mam WWW WWW a mm$iwm %axf%trsn%¥r unconscious. The incident was witnessed by PW-l - Govind, PW— 2 - Smesh Kumar and PW-5 — Mangalsai. PW—4 ~ Janki Bai, wife of the deceased, was informet'l about the incident by one Bablu, on which, she saw her husba viBagers alongwith the Sarpg scene of occuuence and they Dispensary, Kmnda. The ma Police Station — Bishrampur (Ex.—P/4) was registered forl 307 of IPC and Prem Si Bishrampur, from’where, he for treamlent‘agl:i when he V to the injmy on 13.11.1997. sent to the Police Station — Bhilai Nagar, on which, investigation tigating O$cet prepaied inquest (Ex.- 3sses on the body of deceased. The t for postmortem examination (Ex.- The mch namely Satyvau leached to the took the injmed - Prem Singh to the tter was reported by Janki Bai to the on which, First Information Report mmmissiou of oEence under Section agh was sent. to Central Hospital, was referred to the Bhihi hospital vas taking teatment, he succumbed The merg intimation (Ex—P] 11) was ind in an iujm'ed condition. was conducted and the hives P/9) in plesence of the Witn body of Prem Singh was se‘ P/ 10) to Govt; Hospital, D , where Dr. S.R. Churendra (PW— 10) conducted the postmortem n the body of deceased and opined that the cause of death was ead injuty and death was homicidal in nature. Thereafter, the case was transferred to the Police Station - Bishrampur. After completion of th investigation, the chaxge sheet was med against the accused] ppellant in the Court of Judicial Magistrate First Class, Suraj In“, who in tum committed the case P.T.O. XI»HC—78 3am,whm,%amgx < o ftzfw Q / .. o .oo‘..~.oo. In 200 wm<W> - the lsanled Additional Sesw‘aous Judge received the case on hansfer for trial. The pmsecuiion in‘ordcr to establish the charge against the accused] appellant examined 11 Witnesses. The statement of the accused/appellant was recorded under Section 313 Cr.P.C., in which, he denied the material appearing against him in the pmsecution evidence and smted that he is innocent and has been falsely implicated in the crime in question. Learned Additional Ses sions Judge after hearing counsel for the parties and perusal of record convicted and sentenced the accused] appellant as aforementioned. As the accused] appellaint was not able to furnish hail bond, an application was moved (Ln behalf of the appellant to grant further time. During the came of healing, learned counsel for the appellant argued that accused] appellant is in detention for mote than 9 yeaxs, themfore, the appeal itself may be heard hnally, to which, Shri Neeraj Mehta, Panel Lawyer for the State teadily agreed. We have heard Iespe Shri Abhay 'l‘iwari, disputed the homicidal de from the ocular evidence of and PW—S — Mangalsai, counsel for the parties. e nsel for the appellant has not of Prem Singh. Apaxt from that, -1 - Govind, PW-Z — Suresh Knmar is established that the accused PTO c " a u W $rW am 311%31m amt Hf%am E W?WWW &‘WWK é: 31%?W to the Sessions Judge, Ambikapur, from Whera Xll-HC—78 . EW,W,W . & {*z éogr/ :3 ‘\ C WW(W) mwm WW§WWA ‘1 WWW 3‘3 Wwm $Ww§¥r assaulted the deceased with an iron rod (crowbar) on his head. The medical evidence of Dr. S.R. Chutendra (PW- 10), who conducted the postmortem on the body of the deceased, would show that there was one ihjmy on the head and on account of that, there was a linear hactme on the skull bone, brain was ruptured and clotted blood s also piesent, which caused the death of Pnem Singh and d th was homicidal. In View of this ocular evidence as well as m dical evidence, it is established that the death of Plem Singh was omicidal in nature. As far as involvement f the accused/appellant in crime in — Govind has stated that on the , when Prem Singh returned nom the market; Mangalsai inf d him that the accused has taken away his bicycle alter snat the same from him. Thereafter, Prem Singh went to the acc ed - Bhaxat Gond for taking back the bicycle and at that time, en he asked the accused to return back the bicycle, accused at cked the deceased on his head with an iron rod (crowbar), as a ult of which, he fell down. This evidence has been corrobo ted by PW- — Mangalsai. Even though PW-2 — Suresh Ku question is concei'ned, PW- fateful day, at about 5:00 p. son of the deceased, has also been examined as an eye-witness, but in the cross-examination, he has admitted that the place of occurrence was not visible from the side of his house and when he was playing in front of the door of his house, on hearing some quarrelsome, he went towards the place of occurrence and saw that his father was lying in an injured / P.T.O. a o e . c g h s m , XI—HC—78 WW WW,WW,W pr/go9 Q3/- ooo.o~o o.o oo.‘ ai 200 mam-(W) memm WWW mmwm y WW%‘WW $WW condition, and in fact, this Wi assaulting the deceased. The defeiicc has not be the cross-examination of th: evidence of these witnesses iron rod en able to elicit any cimnmstance in :se witnesses, which discredit the and the presence on the scene of occurrence is also established. Moreover, the weapon of offence - (cmWbar) was l of accused/appellant and the evidence of these witnesses has also been corroborated by the medical evidence, in which, the injuxy was found on the head and the same has been stated by these eye-witnesses that the accused assaulted the deceased with an iron md (crowbar) on his hea d.. Therefore, the involvement of the accused in committing the crime in question is established beyond reasonable doubt. In the facts and circu opinion that the judgment of any illegality or infilmity. Leamed counsel for t] deceased went to the house accused, without anyinte assaulted him with only once. Moreover, the whereas, Prem Singh died o 13/ 11/ 1997 i.e about 4 days after tness has not witnessed the accused instance Iecovered at the mstance‘s, we are of the considered the trial Court does not suffer h‘om ‘ne appellant argued that when the of accused, all of a sudden, the to cause death of the deceased, an iron md (crowbar) and that too ident took place on 09/ 11/ 1997, P.T.O. An ' ' c n I I t mun anwuwiim “ , XI-HC—78 Wm m 200 g Emmetfiwehm ...§‘.[%.i.§.??./.‘?9 o WW(W) WWW WWW mwmm 5 WW§WW éNTf$mm the incident, therefore, the oifence against the accused/appellant does not travel beyond Section 304-11 of IPC. On the other hand, ’le arned counsel for the State placing reliance on the judgment of the Apex Court in the matter of State at Rgiasthan u. Dhool Sling: reported in Am 2004 SUPREnm e injuly inflicted by the accused on the iron rod (crowbar) was sutTicient in the ordinary course of nature to cause the death, therefore, )nvicted for commission of onence COURT 1264 argued that th the head of the deceased by accused has been rightly c‘ under Section 302 ofIPC. Having heald learned perused the ocular evidence record. The facts are admitted fiont of the house of the accuised, where the deceased had gone to bring back the accused/appenant dom Ma accused assaulted the deceas head and he entered in his 1 there was a linear fracture or who conducted the postmorh cross-examination, has statec possible on account of the sai or in cross-examination, he lhas not stated that the injury was bicycle, counsel for the panies, we have as well as the medical evidence on that the otfence was committed in/ which was snatched by the ngalsai and in that process, the 3d with an iron rod (crowbar) on his Louse. As per the medical evidence, L the head and Dr. S.R. Churendra , 3m on the body of the deceased, in 1 that the death of 13mm Singh was i injury. In the examination-in-chief P.T.O. Xl—HC—78 wH/b Wm H1 200 WW(W) mam WWW WWWeiwW MWWW 9 aawm su$ci£nt in tha ordinaxy coulse of nature to cause death of deceased. Moreover, he has further stated there was a possibility of survival of the injured person. It is an admitted position that Prem Singh died after 4 days of the incident and the pmsecution evidence is not of suggestive nature that the accused attacked the deceased with an intention to cause his death. It appeaxs from the record that when Preni Singh went to the accused for demanding the bicycle, in that process, some altercation might have taken place and the accused assaulted the deceased on the head with an iron Iod (crow'oar) and he went inside his house. Therefore, the incident took place all of a sudden and only one injury was inflicted on the head of deceased and the deceased died after 4 days of the incident. As per the medical evidence, the Doctor has not stated that the injury found on the head of deceased was sudicient in an ordinary course of manner to cause death of deceased. In View of the above, we ale of the considered opinion that the prosecution has not been able to establish that the accused assaulted the deceased on the head of the deceased with an intention to cause his death. Therefore, an on‘ence under Section 304-11 of IPC is made out against the accused. As far as in the judgme nt cited by learned counsel for the State is concerned, the Apex (dourt reached to the conclusion that as per the medical evidence, the injury was sudicient in the P.T.O. XI~HC-78 MWWW m» eowas WW a? 200 mW<W> mam WWW WW§WWA mmwm 5’ %3q%11311%$r Shyna mdinaxy course of natuIB tip cause the death. Moreovsr, the injury was inmcted with the shatp cutting weapon on the neck, which damaged the blood vessels of the neck, resulting in excessive bleeding, therefore, The Court mached to the conclusion that the injury was swcient in the oldinaly course of nature to cause death and the Court also held that ou'ence under Section 302 was made out against the accused, therefore, the above facts of the case are distinguishable. In the result, the conviction and sentence imposed against the appellant under Section 3 32 of IPC cannot be sustained and is set aside. The conviction and sentence imposed upon the 4 k accused/appellant under Sec 'on 302 of IPCdse hereby set aside and instead thereof, he is co victed under Section 304 Part II of [PC and is sentenced to un ergo RJ. for 10 years. As per the judgment, the accused is in tention since 12/ 11/ 1997 till date; therefore, the accused is e d for set off the detention period against the sentence imposed pon him. Certined copy as per Sdl- l ACTING CHIEF STICE i Sd/ SUNIL KUMAR SINHA udge P.T.O. n