t's'Sf^ BUfi '•SssfSi iics ti '?i •itf^" Uf THE HIOH COURT OF JUDICATURB AT BH<ASPUK_C^. CRIMINAL APPEAL N0. ^230_/2005 „•.-•_. InJail <l\°^..--TS%3.2001 :...^^s^-:.:^ SHRAVAN KBWAT S/o Baba Kewat @ Ramprasad Kewat, Age -18 Years, R/o Village Kathakoni, P.S. TaKhatpur, Tahsil Takhatpur, Distt. Bilaspur (C.G.) -VERSUS- State of Chhattisgarh Through PoUce Station: -Civil-Une, Distt. Bilaspur (C.G.) t.0I^RESPONDBNT APPEAL U/S 374' i2i OF TKE CODE OF CRIMIKAL PRC8CEDURE ^'^UttauAaaAAAM^ ^^. XI-HC-78 an^TaRTRara; <TSTT3T[^Tsh^Ich *11HMI sh*1iq> 3^'^[FTI?PT, ®Tn+f'!S,Rtcll+fy ..cr.'.d..?L?.°. ^ 20(K gn^TTg^ (i^cfi^si^a') BTtTTW trfN'sn^T HIGH COURT OF DIViSION BENCH CR Appellant Hd HCiN'BLE SHRI DHIRENDRA MISHRA, JJ Respondent Shri Ajay Ayachi, iearned cour|sel Shri U.N.S. Chandel, learned Per L.C. Bhadoo. J While arguing the bai! counsel for the accused/appei accused is that he assaulted t since 13.3.2001, v/hich has n State. Learned counse! for tl «hl^F(-l41-<^WW ff fecA <('a1+!il< ^sri^iTsn^T ' CHHATTiSGARH : BILASPUR M'BLE SHRI L.C.BHADOO & AL N0. 730 OF 2006 Shravan Kewat Vs. itate of Chhattisgarh forthe appeilant. .L. for the State/respondent. L J (12/09/2006) lappllcation M.Cr.P.No. 1487/2006, learnsd |ant submitted that the allegation against ihe he deceased with fists and he is in detention been disputed by learned counsel for the |e accused/appeilant prayed that the appeal P.T.O. XI-HC-78 <@) *ll«4^1StiHIcb 3^ '<i\W^, VS-^WW, Rl<'11+iy .6?::'?.'.r?.3?. ^ 2005- 3:n^?TMa<t> (tctt^Gl<<'iT) sn^TqiTR'fi't) craTan^Tstitiiiti S^nWflfiHST^T — 2- -. qil'iltl'l'n-l HIH<-lTffte^t<R]^l<, ^arf^Tsn^r itself should be finaliy disposecf counsel for the State also doesl arguments were heard. 2. The aDDeai is directed aih and order of sentence dated 25L Sessions Judge, Bilaspur (C.q. Additionai Sessions Judfle aft4r of being a sma!l matter, to which learnef not have any objection; therefore, the flne commission of offence under jainst the irnpugned judgment of conviction th January 2002 passed by Fifth Additionai .) in S.T.No. 170/01 whereby the learned holding the accused/appellant guilt/ for Section 302 of the indian Pena! Code sentenced him to undergo imj^risonment 1,000/-, in default of paymerf month. for life and pay a find of Rs. t of fine to further undergo R.l. for one 3. Case of the prosecution real uncle of the accused/appel nameiy Ram Prasad, the dece^sed Droupadibai in his house as| Droupadibai and one of them st On the fateful day i.e. 01SI M near Matachoura templg, the a and after saving that he ha; |in brief is that deceased Ramphal was the lant. On the death of father of the accused kept the wife of Ram Prasad namely his wife. There were three sons of |is the accused/appellant Shravan Kewat. ^rch 2001 deceased Rampha! was sitting fccused al! of a sudden came from behind ^ been ousted from the house, started P.T.O. XI-HC-78 35T "41.i|lcf'4, yrfly'IS, (tciwy WTW gwro..^. /?. .^3.q.... ^ 200^- 3n^r<TgqT (yil^st^ff) 3I1^TWf^Thfi ?TSTT 3T(^T ^T{R? 'STdTWgfN'sn^T ~'3 ~ cbi«tt'i41.fmireff¥te^ (f^5K ^isri^iTsn^T assaulting him with kicks and| unconscious and he was tak^n the Executive Magistrate Sh| declaration (Ex.P-3) of Ramp| 3.3.2001 in the hospitai. TN (PW-2), Kalu Yadav (PW-13J and they intervened. Dehat) Ramphal in the Police Statioj (Ex.P-8) was given fay Dr. Sased on that the First Inform; rsgistration of the crime the ji and after giving notice (Ex| Panchanama (Ex.P-2) of the body of Ramphal was conduct Tiwari (PW-8) v</ho prepared opined that cause of death is to spieenic rupture and smal usual investigation the charge Magistrate, Bilaspur who in ^ Fists, as a result of which Ramphal became to the hospital. On the request of police S.S. Dubey (PW-3) recorded the dying ia!. During his treatment Ramphal died on e incident was witnessed by Prem Kumar sajran Kumar Kewat (PW-14) and Nanhu Nalishi (Ex.P-17) was lodged by deceased n - Civil Line, Biiaspur. Merg intimaticn >J.S.Chande! (PW-9) to the poiice station. tion Report (Ex.P-18) was registered. After (vestigating officer took up the investigation I.P-1) to the Panchas, he prepared the |ead body of Ramphal. Postmortem on the ^d in Dharam Hospital, Biiaspur by Dr. C.M. |he postmortem report (Ex.P-6) in which he |hock secondary to internal hemorrhage due intestinal perforation. AfSer completion of Isheet was filed in the Court of Chief Judicial turn committed the case to the Sessions P.T.O. XI-HC-78 HI*1MISb*11ch a^^ipiRra', STftwTe, Riciiyy . ^-•^,.:5.?o. W[ 200 s- 311^1 4^* (yi(3<s"<<T) 3T[^T V\ R-fi* craT3TR?Tsh*ll* ^nwfl^crsn^T —'r- +iot<'i41-f wRiyft'fec^<.t°i+<;i< i;3lRq'311^T Judge, Bilaspur from where I) received the case on transfer 4. Prosecution in orderl accused/appellant examined 1 of the accused was recorded | Procedure in which he denie<( prosecution evidence and sta| implicated in the crime in quesf 5. Learned Additional Se^ Prosecutor and counsel for iarned Additional Sessions Judge, Bilaspu or trial. accused/appeilant as mention to estabiish the charge against the 6 witnesses. On the other hand, statemeni under Section 313 of the Code of Criminai the materiai appearing against him in the ied that he is innocent and has been falsely pon. Isions Judoe after hearing Additiona! Pubiic Ihe accused convicted and sentenced ths id in paragraph one ofthis judgment. 6. Learned counsel for t! homicidal death of deceased dying declaration (Ex.P-3), of Dr. C.M. Tiwari (PW-8) as (PW-1) and Prem Kumar ( Ramphal is estabiished. )e accused/appellant has not disputed the pamphal. Apart from that, from perusal of po^tmortem report (Ex.P-6) and the evidence Iv/ell as the ocular evidence of Vimal Pstei fffW-2'), the homicidal death of deceased 7. As far as involvsment is concerned, Shri S.S. Dubey r the accused/appellant in crime in question |(PW-3), Nayab Tehsildar has stated that on P.T.O. XI-HC-78 <-n<^tT!ih+1|cft Tq'BlPTRPr, y-rfltf'Ko, fcictl'My .^.^:.^3.Q. WT 200^ w^r'ra^? ('^3^?T) 3T1^T^?rR-<i+ traTSD^TOTra, BRiTWHfscrsn^T ?'- qirafen'ft-r WRft'ff fe^ ^f^RTt ^T3l1^T3n^T 02nd March 2001 he was posted] request of Police Station - Ci} declaration of Ramphal which is| that Shravan assaulted him v/it.hl |as Nayab Tehsildar in Bilaspur and on the ?il Line, Biiaspur he recorded the dying Ex.P-3 in which the deceased has stated 3) reveais that deceased Ramph|al has assaulted him and as to 4 Vimal Pate! (PW-1) has stated with fists. Similar is the evidencti the basis of evidence of Vimall dying declaration of Ex.P-3, ii was the author of the injuries m\ as a result of which he succum9( spleen and perforation ofthe int^ illegality or infirmity in the judgm< 8. Learned counsei for thi fists. Perusa! of dying declaration (Ex.P- himself stated fhat his nephew Shravan /hy he assaulted him, he did not know. that the accused attacked the deceased ;e of Prem Kumar (PW-2). Therefore, on Patei (PW-1), Prem Kumar (PW-2) and s estabiished that'the accused/appellant licted on the body of deceased Ramphai, ed to the injuries on account of rupture of tetines. To this extent '//e do not find any int of the tria! Court. accused/appeilant submitfed that ths accused had no intention to caUse death of Ramphal vvho v/as his reai uncie and on account of som accused allof a sudden without of passion, assaulted the decea, of which spieen was ruptured family dispute on a 'trivial matter, the ^ny preparation or premeditation in a heat ied wjth fists on his stomach as a resu't which proved fatal to the deceased. P.T.O. XI-HC-78 +11«4^11 St>*11<sh TS? -^wi^, •iS-Aww, Riciiuy .ca~.'.'^:.:?.3A W^ 200S 3TT^TMs|th (yt^q^il) 3n^T^?T R4i<t) gS(T3n^?Tsb*<i<ti SRTTWHftcrSD^T 6 - 'hiirci'fl-i *iiti<iTfftet^'<R]<^i< ^i Sri^IT 3TI^5T Therefore, at the most the offen) trave! beyond Section 304-11 ofttt 9. Learned counsel for the judgment ofthe trial Court. 10. In order to appreciate the[ for the appellant we have perus) deceased was the real uncle d sudden when the deceased wasl him with fists and no weaDon ^ made by fist ianded on the stc) ;e against the present appeilaRt does not e Indian Penal Code. tate/respondent supported the impugned arguments advanced by tearned counse! id the record. It is admitted position that the accused and the accused ai! of a [sittjng near the tempie, started assaulting |as used by the accused and the assauit stcjmach, as a result of which spleen was febove evidence it cannot be inferred thaf ruotured. Therefore, from the the accused assauited the decei However, it can safely be inferr^d from the manner in which the accused attacked the deceased on stomfech was ruptured and there was pei] haci knowiedge that assautting tl] sed with an intention to cause his death. from the manner in which the accused with fists as a result of which spieen foration in the intestine that the accused to cause his death, therefore, against the accused/appellant di ]ie deceased in such a manner may iikeiy in our considered opinion the offence |es nottrave! beyond Section 304-il ofthe ^- P.T.O. XI-HC-78 3:ar "'n'qi^ra', ^Tny'iii, fadiyy . OTr.^-523a *II*IMI ai*ncti H?[ 200^" sn^riraw (yt^ci<<<T) 3T[^T ^iT R-li-ti craran^TsRHNi ?RITW;Hf^W^T - -7- tiwfc'i^fl-i tii*iriTit'teI^I'<,Ri«'ci< %3ri^T3n^T < ^- IPC and the conviction and sehtence under Section 302 of the IPC cannot be sustained. 11. In the resuif, the appeaf imposed upon the accused/apj aside. Instead thereof, the ac]c 304-11 of the IPC and senterfi accused/appellant'is in custodt off of the above period against|the j Sd/- L.C.BHADOO Judge partly succeeds. Conviction and sentence ellant under Section 302 of the iPC are set bused/appeilant is convicted under Section |ced to undergo R.l. for 6 years. As the \1 since 13.3.2001, he will be entitled for set jail sentence imposed ypon him. Sd/-' . | DHIRENDRAMISHRA! Judge / r