.l.--3S HIGH COURT QF CHHATTISGARHAT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA BB HON'BLE MR. R. L. JHANWAR. JJ. CRIMINAL APPEAL N0. 459 OF 1992. APPELLANT VERSUS RESPONDENT Vijay Yadav son of Mehtar Yadav, aged about 32 yeEirs, resident of village Urla, Police Station Pulgaon, District Durg (M.P.) The State of MadhyaPradesh. APPEAL UNDER SECTION 374(2t OF THE CODE OF CMMINAL PROCEDURE. 1973. Present:- Mr. M.D. Dhote, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 02/02/2010) The following iudgment of the Court was passed bv T.P. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29/1/92 passed by IInd 'Additional Sessions Judge, Durg in Sessions Trial No. 209/90 whei-eby and where under after holding the / . <appellant guilty for the commission of culpable homicide , ambunting to murder of Rajendra Kvss.ar convicted the appellant under Section 302 Qf the Indian Penal Code and sentenced imprisonment for life. ^ •^a ^. ...--.<'• Judgment is impugned on the ground that without any credible and clmching evidence Court below has convicted and senfenced the appellant aforementioned and thereby committed an Ulegality. The brief case of the prosecution is that on 13/3/90 on the occasion of Holi festival appellant along with other two accused persons quarreled with the Rajendra Kiunar and assaulted over his head and matter was informed to police vide Ex. P-8A. Injured was sent for medical examination vide Ex. P-11. He was examined by PW12 Dr. K.P. Chandrakar vide Ex. P-1A and found one lacerated injuiy over his head of 3 x l/i cm. x bone deep. He was admitted in to the hospital on 13/3/90, during course oftreatment he died. The matter was intkaated to the police and police recorded Rojnamcha vide Ex. P-15. Plain and blood stained soil were recovered from the spot vide Ex. P-13. Marg was recorded vide Ex.P-12. On the basis of Ex. P-8, Dekati Nalisi was prepared vide Ex. P-9. First Information Report was lodged vide Ex. P-10. After summoning the witnesses vide Ex. P-5. Inquest over the dead body was prepared vide Ex. P-6. Dead body for sent for autopsy to District Hospital Durg. Autopsy was conducted vide Ex. P- 16 by PW12 Dr. K.P. Chandrakar and found one lacerated injury over the head and haematoma inside the brain, :!1 1 :( !:l ; : : ; i i!si.aiii!^&.._^i:jE6ifc - i s-~^-n[r -ifTiffi irill~iU3aaUiB ,„ —^ K'wasK: n '•h i 6. 7. fracture ofpartial bone was found. Death was shock as a result of head injury. Death was homicidal in nature. During course of investigation appellant was taken in to custody. He made disclosure statement of stick vide Ex. P- 1. Stick was recovered from the accused vide Ex. P-2. Seized articles were sent for chemical examination vide Ex. P-14. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code'). After completion of the investigation charge-sheet was filed before fhe Chief Judicial Magistrate, Durg who in tum committed the case to fhe Court of Sessions, Durg. Leamed- IInd Additional Sessions Judge received the case on transfer for trial. In order to prove the guilt of the accused/appellant prosecution examined as well as 12 witnesses. Accused was examined under Section 313 of the Code where-he denied the circumstances appearing against him, innocency and false iinplication is claimed. He had also examu'ied DW1 Dayarara who has deposed fhat appellant was not present in the vUlage Urla at the tune of incident. After affording an opporti-inity of hegtring to the parties leamed 'IInd Additional Sessions Judge acquitted the two other co-accused persons and convicted and sentenced the present AppeUant aforementioned. Bi ^ttfii ys' ^ •' K;; liriil - J; ^-'/ '"^'^fr'-STBf' 8. Leamed counsel for the parties are heard. Judgment impugned and record of court below perused. 9. Learned- counsel for.the appellant frequently submits that considering the evijdence of PW2 Chandrashekhar, PW3 Rupendra Singh Thakur, PW4 Tikaram Sahu and PW5 Ashok Kiunar is not disputing the fact that injury found over the head of the deceased was caused by appellant. Rajendra Kumar was died as a result of injury found over the head. Death was homicidal in nature. The aforesaid facts has already been established by the evidence of PW12 Dr. K.P. Chandrakar, his medical report Ex. P-11A and autopsy report Ex. P-16. 10. The evidence of PW2 Chandrashekhar, PW3 Rupendra Singh Thakur, PW4 Tikaram Sahu and PW5 Ashok KuBtiar reveal the at the tkne of Holi function appellant was dancing with other.persons. Appellant was objected by deceased Rajendra Kumar then appellant annoyed and they quarreled with the deceased. After some time he went along with his two friends and after some time agedn he came back .yvith stick and assaulted the stick over the head'ahd waist of the deceased but no injury was found •k the waist only single injury was found over the head, deceased fell down then they took the deceased to the hospital. It clearly revel that there was no previous enmity. . The ihcident took place on account of dispute of dance on :::;E£^^ fi. the Holi festival and only one injury has been caused by the appeUant over the head of the deceased it shows that appeUant has not caused any injury with intent to cause the death of the deoeased and the act of the appellant does not travelled beyond the scope of iinder Section 304 Part-II of the Indian Penal Code. 11. In order to appreciate the argument advanced on behalf of the parties we have examuied the evidence adduced on behalf of the prosecution. 12. After appreciating the evidence available on record leamed IInd Additional Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code but has not considered the raost aiaterial aspect of the case that there was no intention to cause the death of the deceased and incident took place on the trifle ground of dance on the Holi festival and. only one injury has been caused and thereby committed an illegality. 13. For the foregoing reason, the conviction of the appellant under Section 302 of the Indian Penal Code is not sustainable under the law. Appeal is partly allowed. Judgment inipugned is modified. The conviction of the appellant Vijay Yadav under Section 302 of the Indian Penal Code is altered irtfo under Section 304 Part-II of the Indian Penal Code and sentenced for the custodial period i.e. from 14/3/90 to 5/2/97 for about 7 years. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ii&