WWW mm f€ém $3im$méa PPELLANT: ( In Jail) RESPONDENT: under Section 374 (2) of the Cr,P.C.) M Sr. Advocate with Shri Avinash Mishra, Additionai Public Prosecutor for the State/ State of Chhattisgarh, Through P.S. Chhuriya, District Rajnandgaon (Ctiminal Appeal ivisi5n Bench: - on'ble Shri L.c. Bhadodé on’bie Shri Sunil Kumar -9-2007:- Shri P.K.C. Tiwari Advocate for the appenant. Shri D.K. Gwalre, tespondent. Oral judgment dictat ‘d on Dais. L.C. Bhadoo, J. This appeal is direct against the judgment of conviction and order of sentence dated 27‘” ay, 2001 passed by the Sessions Judge, Rajnandgaon in S.T. No.2 12001 whereby teamed Sessions Judge after holding the accused/appe Section 302 of the l.P.C., se ant gulity for commission of offence under intenced him to undergo imprisonment for life. A D H H 6 Rambiias, Slo Gokul, Caste Yadav. aged 50 years, Rio Wlage Bamhani. P.S. Chhuriya. District Rajnandgaon (Chhattisgarh) -Versus- XI-HC—78 ~ CVAVPwNO SZ (L/goil WT m 200 3mm (W) mmm Maw 1' ’ WWW - WWIWW - $simané¥r ution, in b!ief, is that on 1 6-1 1 -2000 at about av was grazing came near Bamhani road. him. At that time, the accused came there, ed in the name of mother & sister & said that 'you have already him earlier‘. Thereafter, he threatened Binjhwar Yadav to attack h When Binjhwar Yadav objected to it, the accused attacked him with lathi on his head, left & right hand & len shoulder, as a result of h Binjhwar fell down on the ground. The s grandson Rajeshwar (PW-1 5), from there n of the deceased, and informed him about , the accusedran away towards the village. The deceased lodged a r t EXP/25 at 5.50 p.m. in the Police Station Chhuriya, on which offence under Sections 294, 323 & 506 of me l.P.C. was registered. injured Binj war was sent for medical examinadon under EXP/22 to the Govemme Hospital Chhuriya where Dr. A.K. Bansod (PW-9) examined his in ies and prepared injury report EXP/1 0. Binjhwar Yadav was adm in Chhuriya Hospital for treatment. During his treatment, when his co dition became precarious, he was shifted to RajnandgaonHospital und Ex.P/1 2. The case of the pr 4 p.m. deceased Binjhwar P.W.-15 Rajeshwar was :5 g d he started abusing the A incident was witnessed by he went to PW-14 Kushlal, the incident. ln the meant During the police cus ody, the accused gave memorandum EXP/5, in pursuance of that, weap n of offence, Tendu club was seized under EXP/4, which was sent to doctor for examination under Ex.P/24. Dr. Y.K. Tiwari after examinati ‘n gave his report EXP/13. He opined that injuries sustained by Bi Yadav can be caused by said lathi. The investigating officer seized lain soil & blood stained soil from the place of o In the Govemment Hospital Rajnandgaon, X- ccurrenceunder EXP/21. ‘ d s r n i . c i o e e r i j r o ‘ i n] r XI-HC—78 . cyxww§é2/0t WW~ In 200 @ WW,M,W 3mm (W) m§$ mmm ‘ amiazna$m ' ‘#‘§@ ray of the injuhes of Binjhmw Yadav was taken through plates Exs.P/8 & P/9 by Dr. Y.K. Tiwari. As; per the report EXP/7, fracture on the left humorous bone was noti During the treatment, Binjhwar Yadav succumbed to the injuries n 2311~2000 in the Govemment Hospital, , Rajnandgaon. The merg intimation sent to the Police Station & LO. aher giving notice EXP/2 to the chas, prepared inquest Ex.Pl3 on the body of the deceased. The body was sent for postmortem examination under EXP/20 where (PW-7) Dr. .K. Damle conducted postmortem, prepared postmortem report EXP/6. opined that cause of death was excessive haemorrhage, on account of ead injury 8; pressure on the brain. After completion of th investigation, charge sheet was tiled in the Court of Chief Judicial Magi a te, Rajnandgaon, who in turn committed the case to the Sessions Ju e, Rajnandgaon, where the prosecution in order to establish the charge gainst the accused examined 2O witnesses. Statement of the accuSed recorded under Section 313 Cr.P.C. in which he denied material pearirig against him in the prosecution evidence, stated that he is i nocent and has been implicated in arfalse Leamed Sessions Ju ge after hearing learned counsel for the respective parties, conv and sentenced the accused as aforementioned. Wehave heard Shri P K.C. Tiwari, Sr. Advocate with Shri Avinash Mishra, Advocate for the cused/applicant and Shri D.K. Gwalre, ‘ x , I \\\ Additional Public Prosecutorf rthe State/respondent. s\\ / \ c s n e s p i c XI-HC—78 @ ‘ CanAjww $z1/&i WW a1 200 3mm (WW) WWW Hmsnémamia? WWiwm mm'am és‘aTan’m Q) As faf as homici death is concemed, PW-15 Rajeshwar, grandson of the deceased, has shted that at the time of the incident he was at the scene of occurr nce. The accused present in the Court had attacked his grandfather Iathi on his head, thereafter he attacked on his hand & ran away. He'i ormed his uncle Kushtal that the accused had attacked him. When Kush i came on the scene, he saw that Rambilas had already raAn away. P 9 Dr; A.K. Bansod has stated that on 16-11- 2000‘he examined injur of Binjhwar Yadav. There was lacerated wound 9n the left side’of e head in the size of 4cm x 0.5cm x 0.5cm. The injured was vomiting, refore, he was kept under observation in the PHC. There were multiple fractures inthe humorous bone & the injured was complaining of pain. re was abrasion on the leh shoulder. PW-7 Dr. V.'K. Damle has stated at on 23-1 1-2000 he conducted postmortem on the body of the deceas There was a stitched wound in the size of 3" x 1" x 1" on the left side of e head. There was fracture in the left hand. ' There was clotted blood on he right side of the head & multiple fracture of the right parietal bone. Me brane of the brain was ruptured. He opined that cause of death wa head injury, excessive haemorrhage and pressure on the brain. T erefore, in view of the ocular and medical evidence, it is established hat death ofthe deceased was homicidal in nature. As far‘as involveme t of the accused in the crime in question is concerned, Shri P.K.C. i, learned Sr. Advocate, argued that there is only one eyewitness to th incident whose presence on the scene of occurrence is doubtful. xr\\‘\ \\\ d I w‘ i e e e . T' r XI—HC—78 47 AWM $7: L/D’ WW vi 200 mvm (W) $1:::44 :A awwé As has’ been mentio$ned earlier, PW-1 5 Rajahwar has categoricauy stated that at the time of.th incident he was with his grandfather. He saw accused Rambiias attack with a club. The presence of this witness is established by the fact th t Binjhwar Yadav, injured, himself [edged the FIR EXP/25 in the P51i e Station Chhuriya :in which presence of Rajeshwar has been menti ned. Moreover, PW-15 Rajeshwar has stated that he immediately info his uncle & son of the deceased namely, Kushlal. The above evid nce of this "witness is corroborated by the evidence of PW-14 Kushl l, who has stated that at about 4 p.m. his nephew‘Rajeshwar came nd informed at his residence that accused Rambilas is attacking his g ndfather with a club, therefore, he went to the place of occurrence and sa that his father was lying in injured condition. Therefore, from the above fact, presence of PW-15 Rajeshwar on the place of occurrence is es blishecl, who has stated that the accused attacked the deceased. As far as other circu stantial evidence invoiving the accused in the crime in question is conce ed, PW714 Kushlai has stated that when he reached to his house, he that his father was lying on the ground & he was unconscious. He enq ired from his father as to who has attacked him, then he said that Ra ,bilas has attacked. About making oral dying declaration before this ' ss, perusal of Ex.D/1, police case diary statement which was reco ed by the LO. on the very next day of the incident reveals that there i mention about oral dying declaration made by the deceased before this w Shrl Tiwarl argued at from the evudence of PW-14 Kushlai It \ \\appears that when he ca e Binjhwar Yadav was lying unconscious r e i _ A yA MA A Xl-HC—78 WW,W,W mm (W) mam m Wm WWW ‘ mmiwm awimanaa tm therefore, there was no occasion fat him to make oral dying declaration before this witness. A son regarding attack mad by the accused on his head. Therefore, involvement of the accused established in view of the ocular evidence of PW-15 Rajeshwar as also oral dying declaration made before PW-14 Kushlal by the deceased. Shri Tiwari argued th tfrom the facts, there is nothing on record to ked the deceased with intention to cause his death. Moreover, the incident occurred on 16-1 1-2000 whereas, Binjhwar Yadav died on 23-1 1 -2000. On the other hand, S ri Gwalte supported the judgment of the trial Court on this fact. lt is admitted position that Binjhwar Yadav was attacked on V1 6-11- 2000 whereas he died on a ount of injuries on 23-11-2000. Moreover, quarrel started on a petty m er because the deceased was grazing cattle near the road where the ac used appeared & objected about grazing of cattle atthat place, he ab establish that the aocused l$f ‘ \\the accused attacked hlm m mcaA'PfW‘V'Z‘z/a‘g 200 Perusal of the record does not show that Binjhwar Yadav remained unconscious forever. It isj st possible that initially he was unconscious, / thereafter, he must have'r gained consciousness. There is nothing in crossexamination to sugge that Binjhwar Yadav remained unconscious throughout till he died The efore from the eVIdence of PW 14 Kushlal rt Is established that the de ased made oral dying declaration before hrs him which was objected by the deceased & club carrying with him as a result of which the deceased sustained inju es Moreover the doctor who examined the u L c XI—HC—78 3a WW, m,W 2;? ‘ 7 W m (W) Maw-rm am mm 3m afar m mmiwm §§ 3mm m J 1 injuries of thé deceasgd! also the doctor who conducted postmonem ‘ have not stated that injuti s found on the body of the deceased were sufficient in the ordinavy urse of nature to cause the death. There is i nothing on reoord to show at in fact, the accused attacked the deceased with intention to ; i‘ to cause his eath. Therefore, in view of the above, we are of the considered opinion that the prosecution has not been able to establish against the accu d'that he in fact, attacked the deceased with t intention to cause his de . However,-‘'looking to the nature of injuries, knowledge can be attribut d to the accused that manner in which he attackedtthe deceased, h had knowledge that he may likely to cause death of the deceased. T refore, offence against the accused does not r travel beyond Section 304 art-ll of the l.P.C. ln the result, the ap al partly succeeds. Conviction and sentence imposed upon the accused under Section 302 of the i.P.C. are set aside, instead thereof, he is convi under Section 304 Part-l1 of the l.P.C. and sentenced to undergo R.l. or 7 years. lt is stated that the accused is in detention since 20-11-2000 till today. The accused shall be emitted for set off of the said detention pe ' against the sentence impoEdL upon hirn. Sdl— _J ‘Sdl- L.C.BHADOO Sunil Kumar Sinha Judge Judge off of the said detention pe ' against the sentence impoEdL upon hirn. Sdl— _J ‘Sdl- L.C.BHADOO Sunil Kumar Sinha Judge Judge