Harinder Kumar and Another vs State of C.G.

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 31.7.2012 passed by Additional Sessions Judge, Durg in Sessions Trial No. 49/2010 convicting the accused/appellants for the offence punishable u/s 304 (Part-1) /34 IPC and sentencing each of them to undergo R1 for five years and pay fine of Rs. 1000/- plus default stipulations. Facts of the case in brief are that on 29.1.2010 FIR Ex. P-9 was lodged by injured Harish Chand (since deceased) to the effect that on that day at about 7.45 a.m. he was brutally beaten by the accused/appellants with hand and fist as a result of which he sustained number of injuries on his body. It is alleged that he had parked his truck in the ACC plant for loading the cement and at that time accused/appellant Ravinder asked his driver to remove the said vehicle. It is further alleged that when he (injured) asked accused/appellant Ravinder not to use abusive language, both the accused/appellants assaulted him with hand and fist and caused severe injuries on his nose and eyes. After lodging the report, victim was referred to Government Hospital, Baikunthdham Camp-2 and form there he was sent to Sector - 9 Hospital, Bhilai for further examination where he died during treatment. Information about death was sent and merg Ex. P-23 was recorded at Police Station, Jamul. After inquest, postmortem on the body of the deceased was conducted on 30.1.2010 vide Ex. P-11 according to which cause of death was coma due to external and internal head injuries. After completion of investigation, charge-sheet was filed on 17.2.2010 for the offence under Sections 302, 294, 506, 323 /34 IPC. Court below however framed the charge under Sections 294, 506 and 302 /34 IPC.

In support of its case the prosecution has examined 16 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them pleaded their innocence and false implication in the case.

After hearing the parties, the Court below acquitted the accused/appellants of the charge u/s 294 and 506 IPC but has convicted and sentenced them as mentioned in paragraph No. 1 of the judgment.

Heard counsel for the parties and perused the material available on record.

Counsel for the accused/appellants submits that even if the entire case of the prosecution is taken as it is, accused/appellants cannot be convicted u/s 304 (Part-I) IPC and at the most their act would fall u/s 304 (Part-II) IPC. He submits that as the appellants are in jail since 30.1.2010 and thereby completed about three years in jail and that the incident had taken place on the spur of moment, their sentence may be reduced to the period already undergone.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are strictly in accordance with law and there is no infirmity in the same.

Ghanshyam (PW-2) - the driver of truck bearing registration No. CG-04-8862 is an eyewitness to the incident who has stated that the deceased had parked his vehicle in queue for loading purposes and at that time accused/appellant Harinder asked him to remove the truck from there and when he refused for that, he (Harinder) started abusing him and when the victim intervened in the matter, accused Harinder abused and assaulted him too causing injuries to his nose and eyes. Subsequently, on intervention of the factory guards, the victim was taken to hospital and during treatment succumbed to the injuries. Premlal (PW-10) - another eyewitness to the incident supporting the prosecution case has stated that the accused/appellants caught hold of the victim and started abusing and beating him with hand and fist as a result of which he had suffered number of injuries. Dr. Rajendra Prasad (PW-1) is the witness who took CT scan of the deceased vide Ex. P-1. He has stated that he noticed internal bleeding in the brain of the victim. Ramkisun (PW-3) - the witness to inquest has duly supported the case of the prosecution. Dr. Sujeet Kumar Sinha (PW-4) is the witness who medically examined the deceased in Sector-9 Hospital, Bhilai. According to this witness, the victim had suffered grievous injury on head and after treating him in the ward he referred him for x-ray and CT scan. When the victim was brought, he was unconscious and that he found the blood oozing and then he succumbed to the injuries sustained by him. V.K. Mandlesh (PW-5) is the witness who assisted in the investigation. Dr. Jaishri Gopinath (PW-6) - the witness who had first treated the deceased has stated that he was unconscious, that he noticed injuries on his eye and then referred him to higher center. Dr. N.C. Rai (PW-7) is the witness who conducted postmortem examination on the body of the deceased. According to this witness, he noticed number of injuries on the head of the deceased and cause of death was opined to be various external and internal injuries. Purendra Kursewada (PW-9) is the Patwari who prepared spot map Ex. P-5. T.N. Yadav (PW-11) is the witness who prepared Nazri Naksa Ex. P-6. Govind Ram Sahu (PW-12) and Bhagwat Prasad Sahu (PW-13) - the eyewitnesses to the incident have duly supported the case of the prosecution. Sanjay Pundhir (PW-14), N.R. Nishad (PW-15) and D.S. Thakur (PW-16) are the witnesses who assisted in the investigation.

Minute examination of the evidence of the witnesses goes to show that on 29.1.2010 deceased was brutally assaulted by the accused/appellants as a result of which he died while taking treatment in Sector - 9 Hospital, Bhilai. Now the only question to be decided by this Court is whether the appellants'' act would fall u/s 304 (Part-I) or 304 (Part-II) IPC. Section 304 IPC reads as under:

Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment for either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

In the case in hand, the victim had parked his truck in the ACC plant for loading the cement and at that time accused/appellant Ravinder asked his driver to remove the said vehicle. It is further alleged that when he (injured) asked accused/appellant Ravinder not to use abusive language, both the accused/appellants assaulted him with hand and fist who succumbed to the injuries sustained by him during treatment in the hospital. Thus it cannot be said that the accused/appellants had any prior intention of causing such bodily injury to the deceased likely to cause death and in these circumstances they cannot be convicted u/s 304 (Part-I) IPC. However, their act would fall u/s 304 (Part-II) IPC as from the record it appears that they had assaulted the victim with hand and fist due to which he sustained several injuries on his body and succumbed to the same during treatment and that being so they had the knowledge that the injuries caused by them may result in his death. In the result, the appeal is partly allowed. Conviction of the appellants u/s 304 (Part-I) IPC is set aside and they stand convicted u/s 304 (Part-II) IPC. As the Court below has already taken a lenient view while imposing sentence, no further leniency can be extended to the accused/appellants as far as sentence part of the judgment impugned is concerned. Accused/appellants are already in jail and therefore no order regarding their surrender etc. is necessary to be passed.