K' HIGH COURT O^CHHATTISGARH AT BILASPUR Single Bench: Hon'ble^hri CMIip Raosaheb Deshmukh, J. Cr. Aroeal No.547 of 2006 APPELLANTS ACCUSEDPERSONS (INJAIL) RESPONDENT 1. Birbal S/o Devnandan Rajwade, aged about 41 years, ^!^ Wjay Kumar son of Shri Birbal, aged about 22 years, Both are resHtent of Village Kaulaspur, Police StaGon Jainagar, Di^rict Surguja (ChhatUsgarh) Versus : State of Chhattisgarti, through-P.S. Jainagar, Ramkolak, DJstrictSurguJa (ChhatBsgarh) CRIMINAt. APPEAL UNDER SECTION 374 OF CR.P.C.. 1973. Present: Smt.SavitaTiwari,counselforttieappellan(s. 1 Shri G. D^ Vaswani, GovemmentAdvocatefbrthe StatB. ORALJUDGNIENT (Delivered on ttiis 16UIday <rf Mareh, 20)9) Heard finatly. 2. Appetlants Birbal and Vijay Kumar have been convicted for the offences under Section 304 Part 1 and Section 323 read with Section 34 of I.P.C. while the appellant-Vijay Kumaj" also stands convicted under Sectkms 294 and 341 of j.P.C. vide judgment dated 19-07-2006 delwered in Sessions Case No.523/2004 by the 2nd Additional ^essions Judge, F.T.C., Surajpur, District Surguja. Appellants Birbal and Vijay Kumar have been sentenced to undergo R.l. for ten yeare and a fine of Rs.1,0001- each in default of payment of fine to undeigo additional R.l. for three months under Sectfon 304 Part l of u s I.P.C. andto undergo R.t. for one\ear under Section 323 read witti SecUon 34 of t.P.C. Appellant-Vijay Kumar has also beensentenced to undergo R.l. for ttiree months under Section 294 of I.P.C. as also sentenced to pay a flne of Rs.500/- under Section 341 <rf I.P.C. and in default of paynwnt offfne,he has to undergo simple imprisonment for one montti. The sentences have been ordered to run concurrenfty. •^ (3) Brisfly stated ttie prosecutfon story is that on 6-09-2004, Mahendra Prasad Rajwade, P.W.1 w^ working in the agricultural field wWi his mother Kavilaso Bai, P.W.2 and father Harisai Rajwade. At that pointoftime, the appetlant-Vijay Kumar arrived there and diverted the water to his field by cutting the bund of the agricutture field of Mahendra Prasad Rajwade. On being prevented from doingso by Mahendra Prasad Rajwade, Kavilaso Bai and Harisai Rajwade, the appeltant-Wjay Kumar hurted filthy abuses and threatening to kitt them went avray. At 5 P.M., while Mahendra ftasad Rajwade, Kavilaso Bai and Harisai Rajwade were retuming home, appellants Vijay Kumar and his father Birbal armed with Sabbal and Showel way lakl ^ ^. them and hurted fiUhy abusive language andthreatening to kill them, assaulted Mahendra Prasad Rajwade, Kavilaso Bai and Harisai R^wade. Mahendra Prasad Rajwade, Kavtlaso Bai sustained simple injuriesWhite Harisai Rajwade sustained grievous injury on the head and was hospitaNzed at Raghunatti Dishict Hospital, Ambikapur in a semiconscious conditionon 06-09-2004. . ^ V. • •^•'- .IT'* (4) F.I.R. Ex.P-1 was lodged by Mahendra Prasad Rajwade at Police Station Jainagar, Disfrict Surguja on 06-09-2004. Harisai cBed on 1(M)9- 2(KM. Autopsy was conducted by Dr. KamleshKumar Tamrakar, P.W.19, who found the following injuries:- li-fe,-. ^) (A) One stitched tacerated wound present on vertex and interior side 10 C.M. in tength, reddish in colour. (B) Contusion occipital region 6x4X3 c.m., reddi^i in cotour. (C) On removing planted carsum with sfitehed lacerated wound present. Left arm and Irft shoutder sizecortusion 10x6x2 c.m. and 1 c.m. length one sUteh present and 5ifix2 c.m., reddish in cotour. (D) Stitehed wound present, leftypper Up 6 c.m. in length. te1 On intemat examination, it was foundttot there was depressed communited fracture of frontal bone, subdurat hematoma was present and intracerebral hemorrhage was ateo present in the teft skle of brain. Fracture of shaft of l^t humerous was also present. It was opined ttiat cteath was due to head injury and intracerebral hemorrhage. Natureof injury was opined to behomicklal. (5) The appellante abjured the guitt and ptoaded ftiat Harisai had consumed alcohol and sustained injuries on account of a faU on a stone. The prosecution examined as many as20 witnesses. Appellante examined Ram lat and Dhyan as defence witnesses No.1 & 2. The teamed frial Judge white '' f . . ' ' . . .' relying on the evidence ted by the prosecirtion convicted and sentenced the appellants as aforesaid in para 1. (6) Smt. Savita Tiwary, leamed cwnsel for the appellarts submitted at Uie very outs^ ttiat s(w would not assail Ihe convicfon of the appellants for v the offences under SecUon 304 Part-1, 323 read wth Section 34, 294 and 341 of the I.P.C. but would argue this ap^al onty on the quesUon of sentence awarded foroffence underSectton 304 Part-1 ofthe I.P.C. (7) In view ofthe submission made by leamed counsel forthe appellants, ttie appeal was heard onlyon the quesfion ofsentence. ?. (8) Smt. Savita Tiwary, learrted counsel for the appellants submitted that the appetlants are in jail since 11-09-2004 i.e. for a period cwer four years ^ •'. • • and six months, and therefore.the sentence awarded by the teamed trial Judge should be modified to the sentence already undergone by ttie appellants. Reliance was placed on Narslngh vwsus Stete af ChhaMsgarh, 2007 (4) Crtnies •tt^ (ChhaMsgarh) and Raf Pal and ,^ Othws vereus State of Haiyana^ (2209) 3 Supreme Court Cases (Ci1.)361. In boUi the abovementioned cases, sentence of imprisonment for seven years was considered to be appropriate for ttie offence under Section 304 Part-11 of I.P.C. (9) On the other hand, Shri G. D. Vaswani, learned Govemment Advocate for the State opposed the prayer whilesubmitting that e sentence awarded by fte teamed trial Judge is commensurate with the nature of offence committed bythe appeHants. (10) Having considered rival submissions, l have perused the record. Considering the natur^ ofinjury sustained by Harisai, the intention with which the injury was caused on vital part and the weapon of offence and the force used for causing the injury as also considering the grav^ of ttie offence committed by the appetlants, 1 am of the consklered opinion that the sentence awarded by the learned trial Judge under Secta'on 304 Part-1 of Ifte ^ I.P.C. is adequate.No interference is tterefore called for in the sentence awarded bythe leamed trial Judge under SectiqA 304 Part-1 ofthe I.P.C. The l^. case law cited by leamed counsel for the appellants is disttnguishabte since the appellants have been convicted fpr the offence under SecBon 304 Part-1 of I.P.C. and not underSection 304 Part-lt of I.P.C. |3i"^^n, iKwitfifriinu.uJi^BB ^' „„ ,n^*.^»".'"°'-"'sualwhtowt" appeal has no merit and is accoKlingly disnrissed. 1 Tunane Sd-/ Dilip Raosaheb Deshmukh Judge u •X ^' (--T—*'«f>iNasiifS-alUaa