KSBi Jli; APPELLANT: (In Jail) HIGH COURT OF CHHATTISGARH, BILASPUR Cnminal AEipeaj No^1631 of 1994 Nityanand Pandey, son of Vijay Pandey, aged about 17 years, R/o Santoshi Nagar, Tikrapara, Raipur (M.P.) (now C.G.) RESPONDENT: Versus The State of Madhya Pradesh (now Chhattisgarh) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Divjsion Bench: - HonlbleJVIr. T.P.^harma and Hon'bleJU'Ir. R,L._Jhanwar^_JJ ORAL JUDGMENT ,(9-3-2010) T.P. Sharma,J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 13-9-1994 passed by the 2 Additional Sessions Judge, Raipur in Sessions Trial No.291/93, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission ofthe murder of Vinay Tiwari, convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life. -- . 2..C-onviction isjnpugned on the ground that without any iota of evidence •and without cohsidering the fac^-that the appellant has committed the murder on grave & sudden provocation, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegajity. ^. 1 )1 ^ •^ ^' '%, :*"% 1 7 S 3. Case of the prosecution, in brief, is that on the fateful day of 5-5-93 at about 7.30 p.m. the appellant assaulted Vinay Tiwari (since deceased) with knife on his abdomen and caused serious injuries on the ground that the deceased has earlier caused injury to him. After causing injury, the appellant fled away from the spot. Injured Vinay Tiwari was taken to the hospital, the doctor intimated the Police vide Ex.P-13 and on the basis of Ex.P-13, the Police lodged F.I.R. vide Ex.P-14. Injured Vinay Tiwari was examined by Dr. M.P. Pujari (PW-l).vide Ex.P-1 who found two stab injuries over abdomen, omentum came out from the injury. During the course of treatment, Vinay Tiwari died on 8-5-93. Merg was recorded on basis of which Dehati Nalsi was recorded vide Ex.P-12. After summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P-15 and dead body was sent for autopsy to D.K. Hospital, Raipur vide Ex.P-16. Dr. D.C. Jain (PW-11) conducted autopsy vide Ex. P-20 and found following injuries: - (1) Stitched wound over left side of abdomen of 7". (2) Stitched wound over left side of abdomen. (3) Stitahed wound of2" over left thigh. (4) Incised wound of 1 1/2" x %" x %" over face. (5) Intestine and pancreas were found cut. Mode of death was syncope and nature of death was homicidal. 4. During the course of investigation, the appellant was taken into custody, he'made discloser statement of knife vide Ex.P-2A and same was - recovered fro.<ti Sheikh Badrul vide Ex.P-5. Blood stained & plain soil / werfe recovered from the spotj/ide Ex.P-6. Blood stained clothes ofthe deceased were recovered vide Ex.P-7. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C, and after completion of investigation, charge sheet was filed : rBefore the Additional Chief Judicial Magistrate, Raipur who in turn, ;, -'..-^^^•^^ff^- , ; ^]'{^ < committed the case to the Court of Sessions, Raipur, from where the 2 Additional Sessions Judge, Raipur received the case on transfer for trial. 6. In order to prove the guilt of the accused persons, the prosecution has examined as many as eleven witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. 7. After affording opportunity of hearing to the appellant herein and other co-accused persons the 2 Additional Sessions Judge, Raipur has acquitted the other two accused persons and convicted & sentenced the appellantin the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellant vehemently argued that in the present case, age of the appellant is disputed and at the time of commission of offence he was below the age of 18 years. Learned counsel further argued that the appellant has taken specific defence that on account of previous injury caused to him by the deceased with blade, the appellant has assaulted the deceased on grave & sudden provocation on second day, therefore, even otherwise, if the evidence of prosecution witnesses is believed, the act of the appellant does not travel beyond the scope of Section 304 Part-11 of the I.P.C. Learned counsel also argued that - memorandurh of accused/appellant Nityanand clearly reveals that the de'ceased had earlier assaulted him with blade and he was having enmity. These facts are'not confessional statements, .therefore, this part is admissible in evidence. Learned counsel placed reliance in the matter of Kotikalapudi Subba Rao v. State of Andhra Pradesh and another ^':{(2008) 2 S.CC (Cri) 621} in which the Apex Court has held on the ground of threat on first day assault made by the deceased on second day shows that the appellant has assaulted the deceased under sudden provocation and the offence does not travel beyond the scope of Section 304Part-lofthel.P.C. 10.0n the other hand, learned State counsel opposed the appeal and submitted that at the time of incident, age of the appellant was more than 18 years and the appellant has intentionally caused injury to the deceased. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 12.1n the present case, homicidal death of Vinay Tiwari as a result of ante- mori:em fatal injuries has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. D.C. Jain (PW-11) & autopsy report Ex.P-20 which reveal that fatal injures were found over the body ofthe decease.d and death was homicidal in nature. 13.1n the present case, conviction is based on the evidence of eyewitness Bhupendra Goswami (PW-5) who has deposed that at the time of incident the appellant told the deceased that he has assaulted him previously and the appellant assaulted the deceased with knife over his abdomen, thereafter, they took the deceased/injured to the hospital., The deceased was taken to the hospital on 5-5-93 and during the course of treatment he'died on 8-5-93, after three days of the incident. 14.Memorandum Ex.P-2A aniS-'-evidence of Bhupendra Goswami (PW-5) clearly reveal that the appellant has assaulted the deceased on account of previbus enrhity that the deceased has earlier assaulted the appellant. This showsthaf the appellant has assaulted the deceased on grave & .<sudden provoeation when he saw the deceased who has earlier ;!"5"'''>1, .-?i".""<tiil,.'•^^ --fsy assaulted him. Therefore, the act of the appellant squarely falls within the category of Section 304 Part-11 ofthe I.P.C. 15.After appreciating the evidence available on record, the trial Court has convicted & sentenced the appellant, but has not considered the circumstances in which the appellant has committed the offence and thereby committed illegality. On close scrutiny of evidence, we are of the view that act of the appellant squarely falls within the ambit of Section 304Part-llofthel.P.C. 16.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 Part-11 of the I.P.C. and considering the teenage of the appellant at the time of commissionof offence, he is sentenced to imprisonment for the custodial period i.e. from 6-5-93 to 29-10-2001 i.e. for about eight years. The appellant is on bail. He need not surrender before the trial Court. soma Sd/- . T.P. Sha'-ma Judse Sd/- R.L. Jhanwar Judge "•^^