(;.'• HI6H COURT OF CHHATTIS6ARH. BILASPUR Crjmjnal Aopsol No,830 of 2006 \ • APPELLANTS/: (Accused) (In Jaii) RESPONDENT: I. Sapan AAalik, aaed about 46 years, S/o Shri Kunj Bihari Malik, K/o Bangali Chaat, Basan-tpur, Police Station Basantpur, bistt. Rcjnandgaon (C.6.) 2. Chandr'ashekher Prajapati, aged about 60years, S/o Shri Ramial Prajapati, R/o Bajrang Nagar iVioharu, Presenl-i'y S residing at Basantpur, Police Station . Basantpur, t5istr. Rajnandgcon (C.6.) Versus State of Chhattisqar'h {Crimina! appeal under Section 374 (2) of the Code of Criminal Procedure. 1973} Present: - '. C.R. Sahu, counsei for the appeltants- Mr. Ponkaj 5hi*ivastava, Panei Lawyer for the State/respondent. Sinale Bench: J-lon'ble Mr. T.P. Sharma. J ORALJUG6MENT — (36-9-2008) 1. This appeal is directed against the jud9ment of conviction & order of sentence datect 15 November, 2006 pcsssed by the Sessions Judge, Rajnandgaon in Sessions Tr-ial No.42/2006 whereby learned Sessions Judge has convicted the oppelicnts under Section 304 Part-FE of the I.P.C. and sentenced each ofthemto under-oo R.I. for seven yearsA poy a fine of Rs.l,000/-,in defauit of pcyment-fcf fine to further under9o 5.1. for six ^. • ' • • ' months. 2. During the pendency of this appeai, oppettant No.Z Ch<mclrashekhar Prajapoti has died on 24-4-2008.. Therefore, this appeat as it relates to| cypellent No.2 Chandr-ashekhar Prajapati abates. flr~" w^/^ ^Tf B,.: a 'vsw" » llitl 3. The judgment is chatlenqsd on the ground that without any prima facie evidence of causing any injury sufficient for causing cleath. Isarned Court below hns conyicted and S8(itenced the appetlnnt. 4. Case of the prosecution, in brief, is that on 13-2-2006 at about 6.45 a.m. while Scmtosh Joshi (since deceased) was passing •t+!rou9h the Kabadi shop of accused Sapon Malik, ttfe accused qucrretted wi1ti •the deceased and ossautted him by fists. The deceased made written report Ex.P-7 in Pelice Station Basantpur. He was sen^for medical examination vide Ex.P-8. Hs ^- was excimined by br. Y.K. Tiwariyw-17) vide Ex.P-8A who found one blunt injury ovei" chest with pain & swetling and seliin9 over his right eye brow. X-rav of chest was advised. On the basis of writt-en reoort, Rozniimcha Ex.P-9 was recorded. Thereafter, deceased Santosh went to the house of Anura9 5hriyastava (PW-12) and stayed there for some time. At about 10.30-11 a.m. Santosh was not responding on which he was shifted to the hospitai where he was declared dead. Merg intimation Ex.P-1 wois recorded. Inquest over ttie dead body of Santosh was prepared vide Ex.P- 3 and 1+ie body was sent for autopsy to Dist-ict Hospital, Roznamcha. Dr. Anil Mahakaikar (PW-18) conducted autopsy and prepared the autopsy report vide Ex.P-16. He found two scratches over right eyebrow of ^-" x t" size, one conlusion over right eye brow of 2" x 2" size, one contusion over right side of chest of 3" x i" size, one contusion oyer right shoulder of 3" x i" size and one contusion over right chest of i" x i" size. On internat examination. Jntet-ncl oraans were found yellowish. Couse of deafh was shock due to excessive internal haemorrhage as a result of rupture of liyer & spleen. F.I.R. was r-egistered yide Ex.P-18. s 5. After compteting investigation, cHarge sheet vwis filed before the Court of .+" Chief Judicicl Magisfrate, Rajnandgaogg who in turn committed tiie case to the Court of Sessions Judae, Rajnandgaon. 6. In order to prove the guilt of -the accused, the prosecution has examined as many as 19 witnesses. Statements of the accused perspns were recorded under Section 313 "of the Cr.P.C. in which -riiey denied the !//' s circumstances oppeorina aaainst them in the prosecution evidence, pleaded innocence and false implication. Appellmt Sapan Matik has atso taken the defence that decsased.5nntosh used to demand Rs.500/- monthly and as \ he has not paid the aforesaid amount, he has been falsely impticated in the crime. The accused per:sons hwe adduced the defence evidence of Devendra Kumar Agrawai (DW-1) who has stated tb_at on 13-2-2006 at about 6.30-7 a.m. accused 5apon <& deceased Simtosh were quarrelling wi'tfi each other, 5antosh was demanding money from accused 5apon. thereafter, 5antosh went to -^e. Police Station. f." '.l 7. After offording opportunity of hearing to the parties, learned Sessions Judge has convicted & sentenced the appellant as mentioned above. 8. Learnedcounsel for the appeltant submits that quarre! between the present appellant and the deceased is not disputed. The oppellont had also lodged report against th®deceased vide Ex.D-1 on the same day at about 8 p.m. He was atso sent for medical examination. &r. Y.K. Tiwari (PW-17) has examined the deceased after the incident and found only two simple injuries. After his examinotion, the deceased went to the house of Anurag Shrivastava (PW-12) where at about 10-11.30 a.m. the deceosed wgs not responding, thereafter, he was finally found dead. The pr-osecution has not adduced any eyidence to the effect that the appelloint has caused any fatol injury to the deceased or caused any imury to the deceassd witii intent to cause his death or wi-th knowtedge thnt by causing such injury he may likely to cause the dea-Hi of deceosed 5antosh. Injuries found over the body of Santosh were superficial, trivial and smatl in size not sufficient for causing death. Therefore, the accused is not responsibte for ony offence of cuipable ;homicide not amounting to murder or .^ . amounting murder. .Learned counsel plhced reliance in the mafterof Bagdi Ram v. Stat® of M.P. (2004 (1) CCSC 1} in which takine into consideration the case of sudden qucu-rel on heat of passion, sentence 'under Section 304 (1) of -ttie I.P.C. was reduced from eight years to three years by the Apex Court. Leamed counsel for the ecpellant dlso submits that the Dresent case is similar to/the absove cited case, as such.even if 1.1 llii;;lI! 4 the conviction of the appellcmt under Section 304 Part-II of •the I.P.C. js maintained, his sentence is liable to be reduced. 9. On the other hdnd, learned^counse! q)pedrm9 for the State/respondent has supported the judgment of the trial Court-. While supportin9 the case of the prosecution, leamed State Counsel submitted that the appellant has coused injuries to the deceased, although no superficial-& grievous injury was found over the body of the dececsed. 10.1 have hear-d learned counsel fot|-ftie parties and perused •rtie impugned M\. . - judgment as also •rtie material availabte on record. 11. Oeath of deceased Sontosh as a result of the iniuries sustcined by him is not disputed. It is established by -t+ie evidence of Dr. Y.K. Tiwari (PW-17), Dr. Anil Mohakalkaf (PW-18), Exs.P-8A & P-16 that the death of the deceased is the result of irijuries sustained by him. 12. Adnnittedly, on the fatefut day there was some altercation between the pfesent appeticint A the decea^d and both of •riiem asscajited each other. The deceased sustained twosimple injuries, no grievous or superficial iniurywas found over -rfie body of the deceased. The deceased died as a result of rupture of spleen & liyer. Admittedly, the appellont w<tS unarmect cnd wrfien tempers ran hiah, in ttie heat of passion, upon sudden quarrei, tiie appeltant asstulted the dece.assd though unarmed but wi'Hiout pre- meditation. The oppellant hcis caused only two injuries to the deceased by fists and the fact that he did riot repeat the blow is indicative of -the fact that he did not intend to cause the death of the deceased. 13. Taking into cpnsiderotion 1+le facts-ond circumstances of -t+ie case, I am of the considered opinion -that the sentence of seven years imposed upon the appetlant ison the h'i9her side. The,*ends of justice woutd be met if the sentence is reduced to three vears. l4.In Itie resuit, the appedl is partty allowed. Conviction of the presenf cypeltant under Section 304 Part-II of 1+ie I.P.C. is maintained, howeveir, the sentence of R.I. .fort seven years imposed upon Him is modffied to R^E. B ^ WlfesS5&. Tw><. .->te,,,A^ Eb^'f!^ for three years. The sentence of fine of Rs.l,QOO/- cind in default qf payment of fine to undergo further 5.1. forsix months iS atso maintained. The aoDelloait shall be entitled to the benefitof setoff under Section 428 of the Cr-P.C. \ Soma SdA T.P,)Shar?ria Judge $ ^' /(:; !£f\ // •"/? III; I : 1