u IN THEHIGH COURT OF JUDICATURE AT BILASPUR(C.G) ^.^-^ Criminal Appeal No. ^ J of 2009 (Memorandum ofCr. Appeal U/S 374(2) ofCr. P.C) APPELLANT (In Jail) RESPONDEtn ^SP? ^1-^"'^''" ..•• <3? Bhallu @ Onkar S/oSudharsan Soni , aged about 50 years, r/o Girwar, Police Station Gorella, District Bilaspur (C.G) VERSUS State of Chhattisgarh Through police Station Gorella, Dista-ict Bilaspur (C.G) MEMORANDUMOF CRIMINAL APPEAL •^'^ .^•'^" ^y^ UNDER SECTIOIN 374 '(21 OF CRIMINAL ^.^ ^ PROCEDURE CODE Conviction Sentence 'ur ftl HIGH COURT OF CHHATTISGARH ATBILASPUR APPELLANT RESPONDENT (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 530 of 2009 Bhallu @ Onkar, S/o Sudharshan Soni, agecl about 50 years, R/o Girwar, Police Station Goretla, District Bilaspur (CG) VERSUS State of Chhattisgarh. CRIMINAL APPEAL UNDER SECTION 374 (2) W THE CODE OF CRFMIN^- PROCEDURE — Present: Shri Ashok Soni, counsel for the appellant. Smt Smita Ghai, PLforthe respondent/State. JUDGMENT (12.05.2011) This appeal is directed against the Impugned judgment and order dated 09.03.2009 passed by the Additionat Sessions Judge, Pendra Road in Sessions Trial No.22/2007 convicting the accused/appellants under Section 304-11 and sentencing him to undergo R.l. for seven years and pay fine of Rs.500/-, in default of payment of fine to further undergo additional R.l. for sc< months. 2. Case of the prosecution, in brief, is that on 18.05.2007 F.1.R. Ex.P-18 was lodged by deceased Manbodh alleging In it that the accused/appellant ts his next door neighbour, who had constructed a wall on his land and when he had asked the accused/appellant as to why he had constructed the said wall, he had assautted the deceased by crow bar on his head, as a result of which, he fell down and thereafter he was assaulted by Durgesh, Mukesh and Butaria Bai also. He has further stated that when he raised his cries, Kole Rathore and Bhola intervened in the matter and have also seen the entire incident. Basedon this F.I.R, offence under Sections 294, 323 and 506-11/34 of IPC was registered against four accused persons namelv Bhallu Soni the aooellanti Mukesh: :;.i-;tl<^t-.L, ;1, ':'-i4^ "^ 1 •K-sSSs-, % 'r" ^ Durgesh and Butaria Bai. On the ne)d day of lodging of the F.1.R, l.e. 19.05.2007, deceased Manbodh expired and Uiereafter, the offence under Section 302/34 of IPC was also registered against the accused persons. After investigation, chaltan was filed on 20.07.2007 under Sections 294,506-11, 323, 307 and 302/34 of IPC 3. So as to prove the guilt of theaccused/appdtant, prosecution has examined as many as 21 witnesses. Statements of the accused persons were atso recorded under Section 313 of the Code of Criminal Procedure in which, he denied the chaiges levelled s^alnst him and pleaded innocence. 4. By the impugned judgment, leamed trial Judge has aequitted the accused/appellant for all the offences but has convicted him under Section 304-11 of IPC whereas, the other accused persons were convicted under Section 323 of IPC and were sentenced to undergo R.l. for four-months. 5. Contention of leamed counsel for the appellant is that he is not pressing this appeal on merits and would confine his argument to the sentence part 'thereof only. He further submits that the appellant has already remained in jail for about 4 years, he is an old man aged about 52 years, he is suffering from certain ailments and therefore, his sentence be reduced for the period already undergone by him and in lieu thereof, fine amount can be enhanced. It is further argued by leamKl counsel for the appellant that the relatlons between the family of the deceased and the family of the appellant have now become cordial and they are neibhboure. 6. On the other hand, opposing this prayer, it has been argued by Smt Smita Ghai, leamed Panel Lawyer for the State that no sympathy be shown to the accused/appellant. 7. Considering the totality of the case, the appeal is partty allowed. Conviction part of the impugned judgment is maintained. As regards the sentence part, keeping in view the fact that the appellant is an old man, aged about 52 years, the incident had taken place all of a sudden, the appellant and the deceased were neibhbours and as it has been informed to this court that the relations between the two families have rtow become cordial, it would be appropriate for this Court to reduce the jail sentence of seven years to that of 5 yeare. However, fine amount of Rs.500/- is enhanced to Rs.10,500/-. The appellant would get the benefit of this order only if he deposits the additional fine amount of Rs.10,000/- before the trial Court, which would be payable to the widow of the deceased namely Shakun Bai (PW-11) by the trial Court,. -< - S&l- ynt^erj Jttdge / a / P-i'ia