ARUN DHEEMAR Vs. STATE OF C.G.

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 24-4-2002 passed by the VIIth Additional Sessions Judge, Raipur, C.G., in Sessions Trial No. 209/2000 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for causing homicidal death not amounting to murder of Sugriv, convicted the appellant under Section 304 Part II of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine Rs. 5000/-, in default of payment of fine, to undergo additional rigorous imprisonment for 3 months. Conviction is impugned on the ground that without there being any iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(2.) As per case of the prosecution, on 22-4-2000 at about 4.00 p.m., Samaru, father of the deceased, Sugriv, reached to Police Station Arang and lodged the First Information Report (Ex.-P/3) and merg intimation (Ex.-P/4) wherein he stated that on 21-4-2000, at about 9.00 p.m. when he was present in his neighbour Mangla's house where marriage of her daughter was being held, the appellant came along with a stick and asked him where his son Sugriv is and told that Sugriv entered into his house, he will not leave, take care of him otherwise he will also beat him thereby he attempted to beat Samaru which was protested by Ramlal Rawat and others as to why he is beating a senior citizen. Thereafter, the appellant left the place. Initially Sugriv left his house without intimating anybody, when he returned at about 11.00 in the night, he kept him inside the house. At about 6.00 a.m. morning when Sugriv went to answer the call of nature, after 5 to 10 minutes, the appellant came and asked about Sugriv. He had not replied, then the appellant went to the same direction where his son went. At about 8.00 to 9.00 a.m., his son Sugriv returned home and the appellant also came behind Sugriv, he was having stick at the moment and said that today he made correction in Sugriv by assaulting him in a volume and thereafter he pushed Sugriv in the cot lying in the court yard of his house. Samaru and other family members noticed many injuries over body of Sugriv. Thereafter, Samaru went for making arrangement regarding treatment of Sugriv in some hospital, he returned back his home at about 12.00 noon after making arrangement, he found his son died. Thereafter, he along with Village Kotwar Jam Bai and Bhagat Dheemar reached to Police Station Arang and lodged the First Information Report and merg intimation accordingly. Police numbered the merg as 17/2000 under Section 174 of the Code of Criminal Procedure, 1973 (for short 'the Code') and registered the First Information Report vide crime No. 59/2000 under Section 302 of the IPC against the appellant. Assistant Sub-Inspector R.S. Pandey (PW-7) of Police Station Arang made over the case diary to In-charge, Police Station, Arang, S.L. Maravi (PW-12) who during the enquiry gave inquest notice to the witnesses vide Ex.-P/5, conducted the inquest vide Ex.-P/6. He also seized from Samaru, paint, shirt and heavy hand made mattress vide Ex.-P/9. The dead body of Sugriv was sent for autopsy by memo Ex.-P/14. Doctor Gyanesh Kumar Choubey (PW-11) conducted the autopsy and noticed multiple contusions antemortem, swelling present over neck and jaw and occipital region backside bluish and swelling present over neck area, neck was disfigured, one antemortem lacerated wound 5 c.ms. x 2 c.ms. on right jaw, blood clot present over right area canal and also on the ear canal, contusion 4 c.ms. x 2 c.ms. over back of chest, also contusion 6 c.ms. x 2 c.ms. over chest. He noticed on internal examination, swelling and inflation of right occipital scalp, hematoma present 8 c.ms. x 6 c.ms. of size, deposit of blood and swelling present. As per opinion, the death was occurred due to injuries possibly of neck and head injury and was homicidal in nature. The duration between the death and autopsy was opined to be 48 hours. He gave autopsy report vide Ex.-P/13. The appellant was taken into custody, he made disclosure statement of facts vide Ex.-P/8. One bamboo stick was seized at the instance of the appellant vide Ex.-P/7. Shirt and pant stained with blood were seized from the appellant vide Ex.-P/10. The appellant was arrested vide arrest memo Ex.-P/11 and Ex.-P/12. The seized articles were sent for chemical analysis to Forensic Science Laboratory (FSL), Raipur vide draft Ex.-P/15. The FSL, Raipur after necessary examination gave its report Ex.-P/16 wherein no blood stain is noticed in the clothes of the appellant. The statements of the witnesses were recorded under Section 161 of the Code.

(3.) After completion of the investigation, charge sheet was filed on 14-6-2000 before the Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Sessions, Raipur, the learned Additional Sessions Judge received the case on transfer and conducted the trial. The appellant was charged under Section 302 of the IPC which was denied by the appellant and he prayed for trial.