/^5 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM; HON'BLE MR. T.P. SHARMA & HON'BLB MR. R. L. JHANWAR. JJ. CRI. APPEAL No. 311/2004 APPELLANT (IN JAIL) VERSUS RESPONDENT Billu alias Bilwa alias Dilip Mamkpuri .son of Melaram Manikpuri aged about 24 years resident of Subhash Chowk, Nevra P.S. Nevra Distt. Raipur (C.G.5. State of Chhatti^arh Through P.S. Nevra Distt. Raipur (C.G.). APPEAL UNDER SEC. 374 (21 OF THB CODE OF CRIBUNAL PROCEDURE. 1973. Present- Ms. Sudha Agrawal, Advocate for fhe appeUaiit Shri D.K. Gwalre, O.A. for fhe State/respondent. ORAL-JUDGBMENT (Passedon 20/01/2010) The foUowtng iudgment of fhe Court was uassed bv T.P. Sharma, J:- 1. Challenge tn fhis appeal is to fhe judgment of conviction and order of sentence dated 28/11/2000 passed by Sessions Judge, Raipur in Sessions Trial No. 156/99 whereby and where under after holding fhe appellant Billu alias Bilwa alias Dilip gtulty for the commission of homiicidal deafh amounttng to niurder of Dwarka Prasad Tiwari convicted the appellant under i:f-^" -^. 1 ^i, ^ Section 302 of fhe Indian Penal Code and sentenced imprisonment for Itfe. 2. The judgment is impugned on fhe ground fhat without any clinching and credible evidence, Court below has convicted and sentenced fhe appellant aforementioned and thereby cominitted cruelty. 3. The brief case of fhe prosecution is that on fateful day of 25/12/1998 at about 2 p.m. deceased Dxvarka Prasad Tiwari was drinking liquor along wifh his brother PW1 Narayan Prasad Tiwari accused BIUu along with two other accused came near the place of incident at Nevra, District Ralpur, some altercatlon took place with PW1 Narayan Prasad Tiwari and appellant. Other two accused assaulted the deceased Dwarka Prasad Tiwari then suddenly appeUant Billu took out fhe knife fix>m his pocket and inflected injuries over the left fhigh of (he deceased. AppeUant along wifh other co-accused fled away from fhe spot. FWl Narayan Prasad Tiwari took the injured to the Police S.tation Nevra and lodged First Information Report vide Ex. P-1. He also took the injured for treatment to Mission Hospital Nevra. Dwarka Prasad Tiwari finally died as a result of injury. Marg was recorded vide Ex. P-5. Inquest over the dead body of the deceased Dwarka Prasad Tiwari was prepared vide Ex. P-3. BIood stained •//& c? •rc^- & 3 -.-.^. ('. 'i;ii'(: ,:>'•s/ 4. and plain soU were recovered from fhe spot vlde Ex. P- 6. Dead body of fhe deceased was sent for autopsy to the Community Health Centre, Tilda vide Ex. P-13. Autopsy was conducted by Dr. A.A. Siddiqui vide Ex. P- 30 and found following mjuries;- (1) One abrasion of 5.5 x 0.2 cm. over right side of the face, (2) One abrasion of 1.2 x 0.2 cm. over right cheek, (3) One abrasion of 3 x 2 cm. over chin, (4) One abrasion of 2 x 1.5 cm. over ruaxillar;r region, (5) One steb injixry of 4 x 1x9 cm. over left thigh. Blood vessels were found cut, The cause of death was Syncope as a result of excessive hemorrhage, death was homicidal in nature. Injured Narayan Prasad Tiwari was also sent for medical examination which was examined by PW9 Dr. D.R. Verma vide Ex. P-12 and found one incised wound of 1 cm. over left thiunb. Blood stalned cloths were recovered from the spot vide Ex. P-7. Accused was taken into custody. He made disclosure statement of knife vide Ex. P-11. Accused produced the knife and same was recovered from the accused vide Ex. P-10. Blood stained cloths of fhe accused were recovered vide Ex, P-8. Blood statned cloths of fhe deceased were recovered, after autopsy vide Ex. P-9. Spot map was prepared vide Ex. P-12A. Seized articles were sent for chemical examination vide 6 3 •^!llSy^ /^^' i^;[li!^ ''<3ES^5® \^. •'•^ssEias Ex. P-19 and presence of blood over the cloths of fhe appellant and krufe was confu'med vide Ex. P-20 of chemical examination report. Patwari also prepared spot map vide Ex. P-22. Presence of human blood over the clofhs of accused and kmfe was confirmed by Serologist vide Ex. P-28. 5. Statement of the witnesses were recorded under Sectlon 161 of the Code of Crimmal Procedure, 1973 (in short the Code'). After completion of fhe investigation charge sheet was filed before the Judicial Magistrate Ftrst Class, Ralpur. 6. In order to prove the guUt of fhe accused prosecution examined as well as 15 witnesses. Accused persons were examined under Section 3 13 of the Code where they denied the circumstances appearing against them, innocency and false implication is clauned. 7. After affordiag an opportunity of hearing to the parties leamed Sessions Judge acqmtted two other accused namely Raoicharan and Siiresh convlcted and sentenced fhe appellant aforementioned. 8. Ms. Sudha Agrawal, leamed counsel for the appellant and Shri D.K. Gwalre, G.A. for fhe State/respondent are heard. 9. Judgment impugned and record of Court belpw perused. 6 3 ..ii^ ,^-€ ^ '^s ^t.^ 10. Leamed counsel for fhe appellant vehementty argued that present appellant has not committed any offence even according to fhe case of fhe prosecution on sudden provocation he has caused single inJLiiy that too over fhe leg not on vital part and even according to the case of the prosecution fhe act of the appellant does not traveled beyond under Section 304 Part-II of (he Indian Penal Code. The present appeUant has already suffered the sentence of more than 6 years and 9 months which is sufilcient sentence. 11. On the other hand, leamed counsel for the respondent/State opposed the appeal and submits that prosecution has proved the case beyond all shadow of doubts. 12. In order to appreciate fhe argument advanced on behalf of fhe pardes we have exammed tfae evidence adduced on behalfofthe prosecution. 13. In fhe present case homicidal deafh of the deceased Dwarka Prasad Tiwari as a result of fatal injury is not substantially disputed by the appeUant otherwise also established by fhe evidence of PW13 Dr. A.A. Siddiqui and autopsy report P-30 whlch reveals that as a result of tnjury over the left fhigh efiectmg the blood vessels deceased died and deafh was homicidal in nature. -•'!• i"a. •S :'^' '-^ ""*' s •VI 14, As regard the complicity of (he appellant wifh crime in question is concemed the case of the prosecution is based on du-ect evidence of injured witness ffWl Narayan Prasad Tiwari has deposed fhat at the time of mcident other co-accused were-assaulted the deceased and suddenly appeUant took out fhe knlfe frorn his pocket and assaiUted ttie deceased over his left thigh. According to the evidence of FW1 Narayan Prasad Tiwari one injury has been caused by the appellant, he was not qiiarrelling wlfh deceased. He has caused fhe injury over fhe thigh but as a result of excessive hemorrhage deceased died. 15. The case of fhe prosecutlon reveals that originaUy after quarreling with PW1 Narayan Prasad Tiwari two other accused persons chased the deceased then suddenly fhe appellant took out the kntfe and caused single injury over fhlgh of the deceased. The evidence adduced on behalf of the appellant reveal fhat ori^nally fhere was dispute wifh PWl Narayan Prasad Tiwari. Other two accused were quarreling with fhe deceased Dwarka Prasad Tiwari but all of a sudden the present appellant has caused single injury shows fhat the case of the prosecution does not traveled beyond under Section 304 Part-H ofthe Indian Peiial Code. !ii; ^."tBB s 16. After appreciating the evidence avaUable on record leamed Sessions Judge has convicted the appeUant nnder Section 302 of the Indian Penal Code on the ground appellant has caused injmy over the vital part but thlgh is not vital part thereby committed Ulegallly. 17. For fhe foregoing reason, Appeal is partly allowed. Judgment is modified, conviction of fhe appellant BUlu alias Bilwa alias DUip under Section 302 of fhe Indian Penal Code is altered into under Section 304 Part -II of the Indian Penal Code and sentenced the custodial period for about 6 vears and 9 months. Sd/- T.P. Sharma Judge Sdi- R.L. Jhanwar Judge