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Mstglsttrat,^ of recej.pt b£ .lepellidtes Qiurfc. •,1.iiuutLiiAau.i.ftniaaH^n ^v^ HlGKCQURTOFCHHATTiSQARHAT BiLASPUR DB: Hpn'bte Shn Dhirendra Mishra & Hon'bls Shri R.N. Chandrakar, JJ, Criminal Appeal No. 1087/1^95 Appellant Respondent Vs. Daisu S/o. Dama, Aged 28 years, Viitage Alore, P.S.Pharasgaon, Distt- Suguja, M.P. Slate of Madhya Pradesh Present: Smt. Kiran Jain, counsel forthe appeliant. Sh.ri Ashish Shuk!a, Govt. Advocate for the State ORAL JUDGMENT 2. (17.06.2010) , The appeiiant has preferred this criminal appeal under SecUon 374(2) of the Code of Criminal Procedure against the judgment of conviction andorder of sentence dated 3rd December 19S4 passed in Session Trial No.210/94, whereby iearned First Additional Sess^ons Judge, Jagdalpur, District Bastar, after holding the appellant guiity for Gommitting murder of his brother nameiy Daisai, has convirted him under Section 302 of the Indian Penal Code and sentenced him to iife imprisonment. Case of the prosecution, in brief, is that the appetlant and the deceased are reai brothers. The appellant has borrowed a sum of Rs.100/- from the deceased approximately one year before the date of incident. On 21.02.1994. the appeiiant and the deceased were returning atter coilecting their wages, both of them consumed chindras (intoxicant), and thereafter, the deceased asked the appellant to return the money which he had taken from him, on which theappellant slapped him and on the way he took Cut a wooden piank (Ghoote) of bultock cart and assaulted on his head and bjaek. The deceased died in the following morning at about 4.00 a.m. 2S f^ 2 3. Report of the incident was iodged by Jaisingh (PW-1), brother of the appellant and the deceased on 22.02.1994 at about of 11.30 a.m. vide Ex.P/1. After registering the crime, police proceeded for the scene of occurrence and prepared inquest (Ex-P/4) over the person of the deceased jn presence of witnesses. The dead body was sent for autopsy to Primary Heaith Centre, Pharasgaon, where Dr. J.K. Choudhary, (PW-5) conducted postmortem and gave his report vide Ex-P/8. Weapon of offence, wooden plank was seized from Itwarin (PW-2), mother of the deceased vide Ex-P/5. 4. After conducting usual investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, First Class, Jagdalpur, wh&, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer by the learned Additional Sessions Judge for trial. The trial Court framed charge under Section 302 of the IPC against the appeilant, who abjured his guilt. 5. The prosecution in order to estabiish the charge against the appeilant examined 7 witnesses in att. Thereafter statement of accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and fatse implication. 6. Tiie trial Court after hearing counsel for the respective parties, convicted and sentenced the appeilant as mentioned in paragraph one of this judgment. 7. Homicidai death of deceased Dalsai is not in dispute. Even otherwise, from the evidence of Jaisingh (PW-1), the eye-witness of the incident and the evidence of Dr. M.K. Jaiswat (PW-5), who conducted post mortem & proved his report (Ex-P/8), in which he found the foltowing injunes presenton the deceased and opined that the deceased died as a result of shock duelto ^ s extra dural haemorrhage and e death was homicidal in nature, the homicidal death of the deceasedls estabiished. iNJURIES Twp marks of injury, contusion with abrasion present over forehead on right side with depression over the skui!. On the skull, he found fracture on froniai and temporai bone and the injuries were caused by hard and blunt object and the same were sufficient to cause his death. He has also examined the weapon of offence - wooden plank vide Ex-P/9 and opined that the injury present over the head of the deceased couid be caused by the said plank. 8. Smt. Kiran Jain iearned counsel for Uie appeliant vehemently argued that even if the evidence of Jaisingh (PW-1) is accepted, it is evident that both the brothers, i.e. the appellant and the deceased were returning together after coilecting their wages. The incident occurred after both of them consumed chindfas on the way, without any premeditation, on the spur of the moment, when they quarreled over the return of Rs.100/- allegediy borrowed by the appellant one year before the date of incident. The appellant was unarmed during the course of quarrel. He took up the wootien plank from nearby bullock cart and gave only two blows, one on the head and another on the back of the deceased. Thus, from the evidence of Jaising (PW-1), it is clear that the appeliant had nenher intention to cause death of the deceased nor he had knowiedge that the blows would cause rtis death and in these circumstances, the offence against the appellant would fati within the Exception 4 of Section 300 6f indian Penai Code. 9. On the other hand, Shri Ashish Shukia, Government Advocate.appearing on behalf of State supported the impugned judgmsnt. /y^'\. & St ff ^SBSt 1 ^...J?J "SB<^" 4 10. We have heard iearned counsel for the parties and have perused the records as also the impugned judgment of the triat Court. 11. Jaisingh (PW-1) iodged the complaint in the very next date of the incident. He categorically deposed that when he heard the noise on the day of incident at about 6.30 p.m., he came out of his house and saw the appellant assauiting the deceased with a ghoota af bultock cart, as a resuit, the deceased sustained injury on his head and back. After assaulting the deceased, the appeltant hid himself in the kitohen garden. This witness has been examined at length, however, he stuck to his examination-in-chief. Considering the fact that this witness is none other than the own real brother of the appellant, there is no suggestion to this witness that he has any III wiil or grudge against the appeitant. His orat evidence is worth reliance. 12. ibwarin (PW-2) is mother of the deceased. She has also stated that her son Jaising (PW-1) came to her and toid that Dalsu has murdered Daisai. 13. Anita (PW-3), daughter of Dalsai has also deposed that her uncie has murdered Dalsai. However. she is not an eve-witness ofthe incident. 14. The version of Jaising (PW-1) is further corroborated by the evidence of Dr. J.K. Choudhary (PW-6) who has found corresponding injuries on the head of the deceased. On appraisal of the evidence of the above witnesses, we are of the opinion that Jaising, (RW-1) is a witness of truth and he has proved beyondreasonabte doubt invoivement ofthe appellant in the crime in question and the trial Court has not committed any illegality by relyirag uoon the evidence ofthis witness. 15. The next question for our consideration is - whether the offence commhted by the appeilant falls within any of the exceptions given under Section 300 of the Indian Penai Code? ..s"^. ' ^ \ ^/ "^it.KESS*'' ^ 16. As already pointed out, Jaisingh (PW-1) has deposed that both the appetiant and the deceased, who are reaf brothere were coming together after coitecting wages and fftey together consumed some intoxicating substance on the way and fhereafter quarrel ensued between them as the deceased demanded Rs.100/-, which was borrowed by the appeliant from the deceased and during that quarrel, the appellant took up a wooden piank from nearby cart and assaulted the deceased on his head and back. Ramla! (PW-4) has also deposed that there was a auarrel and marpeet between Dalsu and Dalsai on ttie date of incident. Thus, from the evidence available on record, we find that the offence was committed by the appellant without any premeditation in a sudden flght, which snsued between them, as the deceased asked the appellant to return Rs.100/-, and upon a sudden provocation, in the heat of passion the appeilant assauited the deceased. It is also evident that the deceased susteined only two injuries and the appeilant did not take any undue advantage or acted in a cruel or unusual manner. Thus, the offence against the appellant is squareiy covered by Exception 4 of Section 300 of the IPC, and the frial Court was not justified in convicting the appellant under Section 302 of the IPC. In our considered opinion, the appeliant is guilty of the offence Dunishabie underSection 304, Part-!l ofthe IPC. 17. Learned counsei for the appellant submits that Uie appetiant was only 28 ^ IM ^ years at the time of the incident. He already undergone seven years in jail as he was arrested on 22.02.1994 and remained in jail till 25.09.200i, when he was directed to be released on baH by the this Court and as such, he has already undergone 7 years and 7- months. The above fact is not t disputed by the leamed counsel for the State. .^•:;." tv:Q£^^ 18. In the result, the appeal is parHy aliowed. Conviction of tte appetlant under Section 302 of the IPC and sentence imposed thereunder are set aside. tnstead, the appeilant is eonvicted under Section 304, Part-11 ofthe IPC and sentenced for the period already undergone by him. He is on bail, therefore, his bail bonds are discharged and he need not surrender. Sd/- DHIRENDRA MISHRA Judge Sd/- R-N.Chandrakar Judge Bini i