,^' H ^p /^> HI6H COURT OF CHHATTISeARH^T BIb^SPUR597 CriminoJ AoeeaS No. 597 of 20G4 APPELLANT Pramod Yadav alias Denga ©uruji/ aged about 29 years, s/o Deonath Yadav, occupation, Teacher, Police Station Faijarpur (Parpa), District Madhya Bastar, present address viliage Nagamar, PoIJce Station, Naaarnar, District AAadhya Bastar, (Chhattisgarh) State of ChhattisgGrh Through the District Magistrate, Bastar, DsBstrict Bastar (Chhattisgarh). OF SECTION 374 C2) OF THE OF PROCEDURE AAs* Sudha AgrawaE, counsel for the appeliant* Shri Sudhir Bajpai, Dy. ^overnment Advocate for the State. Hon'bl®Shrl T.P. Sharma& H©n<bS€__Snrl_R.L,JhQ^war,JJ JUDSMENT (19.4.2010) P@r T.P.Shcrma, J. L Chaiienge In thls appea! is to the judgment of conviction and order of sentence- dated 22.5.2004, passed by the Speciai Judge, SC/ST Act, Bastar at Jagdaipur in Sessions TrJGi No. 51/2004, whereby and whereunder, the learned Speciai Judge after hoiding ^^JV . ^,1 \..^ the appellant guilty for commisslon of culpabie homicide, amountin9 to murder of 2 children nameEy- Premnath and Harun/ convicted the appeilant under Section 302 of the IPC and sentenced to undergo imprisonment for life to pay a flne of Rs,3000/n, in default of payment of flne to further undergo RJ. for 2 years. 2. The conviction is impugned on the ground that without any credibie and clinching evidence, the Court beiow has convlcted and the Gppeliant as aforementloned and thereby committed iiiegaiit^. 3. Prosecutlon 'm brief is that the appellant is a Teacher and posted at vlliage Chhote Murma School. He chased the students Premnath and rJQrun, aged about 10 and 6 years respectively for taking them to the Schooi for education. On 22*12,2003, he caught hold of both the students, slapped them and dashed their heads, due to which, they feli down and died, FJ.R. was lodged by Sudaru (PW- 1), father of the deceased Premnath and HGrun vide Ex. P/3, Merg was recorded vide Ex, P/l and Ex< P/2, The Znvestigating Officer ieft for the scene of occurrence and after summoning witnesses vlde Ex, P/10, inquest over the dead bodies of Premnath and Harun was prepared vide Ex. P/ll and ExP/12. Dead bodies were sent for autopsy to P.H.C. Nanjur vide Ex. P/13-A ond Ex. P/14-A, where Dr. J.L. Dariyo (PV^-10) conducted autopsy over the dead body of Premnath vide Ex. P/13 and found one contusion with laceration of 6 x 4 cm over forehead. Extra durai haemorrhage was found, Death was accidento.l and homicida! En nature* He also conducted autopsy over the deod body of Harun vide Ex, P/14 and found contusion of u 4 x 3 cm over the forehead. Brain was cong^sted and cause of death was coma as a resuit of head injury and death homicidal in nature. Spot map was prepared vide Ex. P/15* Bfood stained soit and piairs soil was recovered from the spot vide Ex, P/4 and Ex. P/5. School bags were seized from the spot yide Exc P/6 and Ex. P/7. Sealed ciothes of the deceased were seized vlde Ex. P/8 and Ex. P/9. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (En short the Code). 4, After compietlon of the investigation, charge sheet was filed before the Chief JudEcial AAagistrate, Jagdaipur, who in tum, committed the case to the Court of Sessions, Jagdalpur, from where the Specla! Judge received the on transfer for triai, 5. In order to prove the gullt of the accused/appellant, prosecution has examined as many as 12 witnesses* The accused was examined under SectEon 313 of the Code, where he denied the circumstances appearing against h im, inrrocence and false imptication in crime in question was ciaimed. He adduced the evidence of defence witnesses bevnath and Dhaneshwar, Devnoth (DW-l) has deposed that the accused/appeiEcnt is a disabled person and is not in a position to run, However, he has admitted in cross examination that the accused/appeilant was driving motorcycie and was able to waik and he himseif used to come and go to the Schoot. Dhcxneshwar (PW-2) has deposed that some Teachers were tefling the Sarpanch to send ali the children to the Schoo!. Then they took some children to the School. Some children fied towards forest cxnd 2 children were missing. ^ -^"-^ "m^^ \^^ \ 6. After affordina opportunity of hearin9 to the parties, the learned Speclai Jud9e has convicted and sentenced the appeilant as aforementioned. 7. We have heard Ms, Sudha AgrawGl, learned counsel for the appellant and Shri Sudhir Bajpai, Dy, (5.A. for the State, perused the judgment impugned and record of the Court below. 8, Learned counsel for the appeliant vehementiy argued that in the !ight of evidence adduced on behalf of the prosecution, she is not disputing the incident and th©fact that the accused, who was Teacher has dashed the heads of 2 students on the ground that they ran away towards forest and they were not coming to School, but he has not caused any 'snjury with intent to cause fatal injury or death of the students. The accused/appelloint is a Teacher and with a view to compei the students for education for their welfare, he chased and caught ho!d of the students and acted in such a manner. She further argued that even otherwise, the act of the appeltant does not travel beyond the scope of Section 304 part TL of the IPC* 9< On the other hand, iearned counse! for the State opposed the petition and frankly admitted that in the present case, appellant has not cGused any injury with intent to cause death of the students, But at the time of dashing heads of 2 students, at least he might have knowledge that by his act, the teen age students, about 10 and 6 years, may die, therefore, he has not taken proper precaution. (LP' 10* In order to appreciate the arguments advanced on behalf of the parties, we have examined the materiGt avaiiable on record. 11. In the present case/ homicidal death of students Premnath and Harun, aged about 10 and 6 years respectively, has not been substantiaiiy disputed on behaif of the appeilant, on the other hand, Et is established by the evidence of Dr. JL. Dariyo (PW-10) and autopsy reports Ex, P/13 and Ex. P/14 and the death of 2 students homicida! in nature. 12. In the present case, evidence of Sudaru (PW-1), ^anesh (PW- 2), Jigendra (PW-3), Durgesh (PW-4), Chandrasai (PW-5) and Shanshyam (PW-6), PW-2 to PW-7 are students, children aged between 9 to 11 years, have deposed that the accused- Teacher chased Premnath and Harun for taking them to School for education, caught hold of them and dashed their heads and thereby they received injury, feli down and uitimately died. This is G case of unfortunate death of 2 students, aged about 10 and 6 years< The accused Teacher was trying to take the students to School for their education and weifare and to teach them lesson, he has dashed their heads and he has not taken precaution that the students were aged about 10 and 6 years and by his act they may die, The act of the appeiiant does not fall within the category of cuipable homicide amounting to murder but definiteiy, it fai!s within the category of culpable homicide not amounting to murder. He has not caused intentionai death of 2 students. WhiSe convicting the accused, Court j^ .^- —^ <i ^'I& \ ^.^ ^ ,..^""' below has not consldered this aspect of the case and thereby committed iEEegality'. 13. For the foregoing reasons, the cypeal is partly aliowed. Conviction of the appeilant is aitered into Section 304 Part II of the IPC and he is sentenced for imprisonment of custodJGl period i,e, from 24.12.2003 tiSI today for about 6 years and 4 months. He be set at llber'Sy, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 19.4.2010 ^ fy-