IGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon’ble Shri T.P. Sharma & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Aggeal No. 543 of 2004 Sadhwa @ Sukhad Singh s/o. ‘ Ujaiyar Singh Rathod, aged about ' 19 years, resident of JhapaL P.S. Lormi, Distt. Bilaspur (CG). gpellant (in jail) Vs. State of Chhattisgarh through Police Station Lormi. t Respondent a (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. BM. K. Bajpai, counsel forthe appellant. Mr. D.K. Gwalare, Govt. Advocate for the State. ORAL JUDGMENT (Delivered on 19-8——201 1) Per T.P. Sharma, J. Challenge in this appeal is to the‘ludgment of conviction and order of sentence dated 28-4—2004 passed by 2nd Additional Sessions Judge (FTC), Mungeli, in Sessions Trial No. 422/2003, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of‘culpable homicidal death amounting to murder of Bhupendra Singh after causing annoyance by using obscene language in public place and intimidating, 1. A @§ convicted the appellant under Sections 302, 294 and 506-B of the tPC and sentenced him to undergo life imprisonment and fine of Rs.5000/—, in defauit of payment of tine to undergo further RI for one year, RI for three months and RI for two years and fine of Rsl500/—, in default’of payment of tine to undergo further RI for one month. "Conviction of the appeiiant is impugned on the ground that without there being any iota of evidence, the court beiow has convicted and ‘sentenced the appellant as aforementioned and thereby committed an illegality. ‘ ‘As per case of prosecution, on 22-7-2003 at about 11.00 a.m., appellant and unfortunate deceased BhUpendra Singh @ Bhoop l‘Singh quarreled with each other. Appellant holding axe andkknife, assaulted Bhupendra Singh by knife in his abdomen (near umbilical region) and also caused injuries over his head by axe, thereafter he fled away from the spot. Deceased went to Police Station Lormi and lodged first information report vide EXP/26. He was sent to Primary Health Centre, Lormi, for medical examination vide E£t5/10~A Where Doctor .Sagar Shukla (PW/6) examined him vide Ex.P/1O and found'the following injuries; i) one lacerated wound of"‘l"x 1/2 cm xt/z cm over infra- umbilical region; ii) lacerated wound of 1/2 cm x % cm x% cm over left ear; iii) lacerated wound of 1/2 cm x 1A cm x% cm over left parietal region of head and opined that all injuries were simple in nature. Thereafter, deceased was referred to CIMS Hospital, Bilaspur where Doctor A.S.Khan (PW/10) examined him vide l»; EXP/16 and thereafter he was examined by Doctor Shanti Prakash Kujur (PW/17) vide EXP/30. During the course of treatment Bhupendra Singh died on 28-7-2003 and intimation thereof was sent to Police Station on the basis of which merg was recorded by i Police vide EXP/24 and after summoning the witnesses vide EXP/7, inquest over the dead body of deceased was prepared vide Ex.P/—8, dead body of deceased was sent for autopsy to Government Hospital, Bilaspur vide Ex.P/9 where Doctor A.P. Rai «(BW/9) conducted postmortem vide Ex.P/15 and found the ; aforementioned injuries and opined that cause of death was due to 1 shock and septicemia and death was homicidai in nature. During s the course of investigation axe was seized from the possession of accused/appellant vide Ex.P/4. : Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was fiied against the appellant in the Court of Judiciai Magistrate First Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur from where the case was transferred to 2'” Additional Sessions Judge,_‘*lvlungeli, who framed charges under Sections 302, 294 and 506-5 of the IPC against the appellantwho abjured the guilt. " ln order to prove the guilt of the appellants, prosecution examined as many as seventeen witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. . * After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 9. :Mr. B.M.K. Bajpai learned cnse appearing for the ppellant vehemently arued» that convicton is based n the evience of s alege eye-witnesses Shiv Kumar Rajpot (PW/1), Prahalad ('P/2) and Narendra Singh (PW/13 ad the evince of Sher ingh (PW/8) bere wom th deceased made a dying delaration. 3 . The eVIdence . of these Witnesses . i are cntradictory . and do not inspire confidence and trtworthy ad-same is not fe l us n sa to rely for convictio of the apllant under Sections 302, 94 and 506-8 of the IPC. As er initi case of prosecution appellant and dad a wh a dn atse c e simple in nature. Deceas himself wen Police Sttion and ed t to a lodged first informati eport and thereafter he was referred to CIMS Hospital, Bilasur on account inry On the intestine and e died after lapse of seven days which shows th the appella has not caused ny inry to he decsed with intet to cause his deat and he injurs aused by te appellant were simple in at e o of e e nure and the incidnt took place n a spur momnt, suddn provocation an sudden quarrl without re-metation. Thus, the ‘ act attributed to the present appellant does not travel beyond the scope of Section 304 Part ll of the IPC. Present appellant is in ecese qurreled it each other nd urig course of altercation appellncaud injuries to deeased which wre , oul a l g i o d l gld o ;W ) n de iS fo h e i lc a o i l n pe 2 p al x. on r p of ju h at nt a ju t ea n h t ie c h d e pdi custody since 5—8-2003 and has completed more than eight years which is sumcient sentence to the present appellant. 10. On the other hand, Mr. D.K. Gwaire learned Govt. Advocate for the l State opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for drawing l inference that the present appellant committed the aforesaid ‘ offence and the court below has rightly convicted and sentenced the appellant as aforementioned. 11. l «lrrorder to appreciate the arguments advanced by learned counsel - for the parties, we have examined the evidence adduced on behalf of fhe prosecution. . In the present case, homicidal death as a result of fatal injuries over l the body of deceased Bhupendra Singh has not been substantially disputed on behalf of the appellant. On the other hand also it is established by the evidence of Doctor Sagar Shukla (PW/6) vide EXP/10, Doctor A.S.Khan (PW/10) vide EXP/16, Doctor Shanti Prakash Kujur (PW/17) vide Ex.P/30 and autopsy report vide EX.P/15 of A.P. Rai (PW/9), death of Bhupendra Singh was homicidal in nature. 13. As regards complicity of the appellant in question, Shiv Kumar (PW/1) and Prahlad (PW/2), the“ alleged eye-witnesses were declared hostile, who have deposed and supported the case of prosecution to the extent that the appellant and deceased both quarreled with each and appellant was having an 'axe. As per evidence of PW/8 Sher Singhr deceased made dying declaration before him stating that the appellant had caused injuries to him. 14. Defence has cross-examined the aforesaid witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimonies to that extent. The evidence of these witnesses are sufficient for drawing inference that the present appellant caused homicidal death of Bhupendra Singh by causing Injuries. As regards intention is concerned, nature of injuries, weapon used, v agnd other circumstances are to be considered. In the present case, appalant and deceased quarreled with each other and appellant caused three injuries to the deceased out of which two were l stiperficial in ‘nature and third injury was lacerated wound. deceased himself had lodged tirstii-nformation report in Police l Station and initially offence was registered under Sections 294 and 506-B of the IPC and obviously after death of deceased it was altered into 302 of the IPC. This shows that present appellant has caused injuries to deceased Bhupendra Singh not with intent to cause his death but at the time of causing such injuries he was having sufficient knowledge that by such act the deceased may die. In these circumstances, the act of the appellant Bhupendra Singh does not travel beyond the scope of Section 304 Part ll of the IPC. "\ As per evidence available on record, prosecution has not adduced any evidence to show that the appellant used obscene language with intent to cause annoyance to the deceased that too in public place, therefore, conviction and sentence under Sections 294 and ‘506-B of the IPC are not sustainable under the law. While convicting the appellant under Section 302 of the IPC and @ sen'tencing him to undergo imprisonment for life, the trial Court has not considered the circumstances in which the incident took place, nature of injuries and weapon used and thereby committed an illegality. 17. Consequently, th'e appeal is partly allowed and conviction and i sentence of the appellant under Sections 294 and 506-B of the IPC is hereby set aside and conviction under Section 302 of the IPC is altered into Section 304 Part ll of the IPC. Instead of life «imprisonment and fine of Rs.5000/— under Section 302 of the IPC, t g appellant Bhupendra Singh is sentenced to undergo RI for custodial period. i.e., more than eight years as he is in custody . since 5-8—2003. He shall be released forthwith, if not required in any other case. a, t 7 I Sd/- Sd/- l T.P. Sharma l ‘ R.N. Chandrakar 7 a Judge Judge