Bipin @ Bablu Singh vs State Of Chhattisgarh
2024 Latest Caselaw 91 Chatt

Chattisgarh High Court

Bipin @ Bablu Singh vs State Of Chhattisgarh on 21 June, 2024

    Neutral Citation
    2024:CGHC:20955




                                  1



                                                              NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                  Criminal Appeal No. 1202 of 2019

     Bipin @ Bablu Singh S/o Banshilal Thakur Aged about 25 Years
     R/o Lachhanpur, Police Station - Baradwar, District - Janjgir-
     Champa, Chhattisgarh.

                                                      ---- Appellant

                                Versus

     State of Chhattisgarh Through District Magistrate Janjgir,
     District- Janjgir-Champa, Chhattisgarh.

                                                     ---- Respondent

For Appellant : Mr. Malay Shrivastava, Advocate For State/Respondent : Mr. Arpit Agrawal, Panel Lawyer

Hon'ble Shri Justice Arvind Kumar Verma

Order On Board

21/06/2024

1. This appeal has been preferred by the appellant being

aggrieved by the judgment of conviction and order of sentence

dated 31.07.2019 passed by learned First Additional Sessions

Judge, Sakti, District Janjgir Champa (C.G.) in Sessions Trial

No.29/2018 whereby, the trial Court has convicted the

appellant for the offence punishable under Section 304 Part-II

of the Indian Penal Code, rigorous imprisonment for 10 years Neutral Citation 2024:CGHC:20955

and fine amount of Rs.5,000/-, in default of payment of fine

amount, he shall undergo additional rigorous imprisonment for

six months.

2. According to the case of prosecution in brief is that on

18.07.2018, the deceased Mukesh Kumar Bareth has lodged

a report before the concerned police station alleging that when

he was sitting in the Bazar Chowk of his village, appellant

came there and he asked to him you having some friendship

with Bharat Bareth then he told I have no any friendship with

him. Thereafter, the appellant annoyed and abused the

deceased and picked-up a brick which has been lying there

and caused injury on the head of the deceased due to which,

the deceased received injury on the head. On the basis of his

report, offence under Sections 294, 506 and 323 of IPC have

been registered and the deceased has been sent for medical

examination. Thereafter, on the next day, i.e., 19.07.2018, he

died. Thereafter, offence under Section 302 of IPC has been

added.

3. Statement of the witnesses was recorded under Section 161 of

the CrPC. After completion of investigation, charge-sheet was

filed by the police and the trial Court framed the charges Neutral Citation 2024:CGHC:20955

punishable under Section 304 Part-II of IPC against the

appellant.

4. To prove the guilt of the accused/appellant, the prosecution has

examined as many as 13 witnesses. However, no defence

witness was examined. Statement of the appellant under

Section 313 of the Cr.P.C. was recorded, wherein

accused/appellant pleaded innocence and false implication in

the matter.

5. After completion of trial, the trial Court has convicted the

appellant and sentenced as mentioned in paragraph one of this

judgment. Hence, this appeal.

6. Learned counsel appearing on behalf of the appellant submits

that he does not wants to press this appeal on merits and

confines his argument to the sentence part only. He further

submits that the incident is of the year 2018. He is aged about

25 years old and he is facing the lis from last six years. The

appellant is in jail since 19.07.2018 and has undergone about

five years and eleven months in this case, therefore, it is prayed

that the jail sentence awarded to the appellant may be reduced

to the period already undergone by him.

Neutral Citation 2024:CGHC:20955

7. Per contra, learned counsel for the State/respondent opposes

the argument raised by counsel for the appellant, supported the

impugned judgment and submits that sentence awarded by the

trial Court is just and proper and requires no interference.

8. I have heard learned counsel appearing for the parties and

perused the material available on record with utmost

circumspection.

9. Perused the statement of Yogesh Gabel (PW-03) has stated in his

deposition that the incident occurred on 18.07.2018. When he came

back from Baradwar at 06:00 PM after getting clothes stiched, he

saw that many people had gathered near the Bazar Chowk. He went

closer and saw that Mukesh Bareth had a head injury and was in an

unconscious state.

10. Bharat Kumar Bareth (PW-05) has stated in his deposition that on the

date of incident when he reached at the place of incident he saw that

Mukesh Kumar Bareth was lying unconscious near Babulal's Pan

Stall. He and Yogesh Gabel (PW-03) took Mukesh Bareth to

Baradwar Hospital for treatment. The doctor advised Mukesh to be

taken to the police station as it was an accident case. On the advise

of doctor, they went to police station. The policemen took Mukesh to

Baradwar Hospital for treatment. He left Mukesh at the police station

and went home for work. The next day, due to Mukesh's sudden Neutral Citation 2024:CGHC:20955

health deterioration, he was again being taken to hospital for

treatment. Mukesh died on the way.

11. Dr. Pradhan Singh (PW-04) who examined the deceased-

Mukesh Kumar Bareth has stated in his deposition that after

examination of external part of the body of the deceased he found

that the deceased was suffering from Polio since childhood, his

body was thin, There was stiffness in the dead body. There was a

lacerated wound on the left parietal part of the head, the size of

which was 3x2x1 cm, in which the blood clot was red and the

edge part was yellow. The edges of the would were swollen. On

examination of internal part of the body he found that a blood clot

was found on his left side and the occipital and parietal bones

were broken. The right and left lungs were in normal condition.

The heart chamber was empty. The stomach was empty. Fecal

matter was present in the small intestine and large intestine.

Liver, spleen, kidney were congested. The internal and external

genitalia were in normal condition. He opined that the deceased

died due to head injury and respiratory and heart failure as a

result of it. The above injures sustained by the deceased were

ante-mortem. Post mortem report is exhibited as Ex.P/13.

12. On 18.07.2018, deceased- Mukesh Kumar Bareth lodged the FIR

(Ex.P/24) before the Police Station- Baradwar, District - Janjgir-

Champa (C.G.) which was written by Head Constable

Santosh Tiwari (PW-11). As per Ex.P/24, deceased has Neutral Citation 2024:CGHC:20955

received severe injuries on his head. After lodging FIR, on

the very next day, i.e., 19.07.2018, Mukesh Kumar Bareth

has died, therefore, the trial Court has relied upon the FIR as

dying declaration of the deceased under Section 32 of the

Indian Evidence Act. FIR (Ex.P/24) shows that the appellant

abused the deceased, threatened to kill him and hit him on

the head by holding a piece of brick lying nearby in his hand,

therefore, the FIR is treated as dying declaration of the

deceased recorded by Head Constable Santosh Tiwari (PW-

11). FIR shows that covering minutes details of the incident.

It is also pertinent to mention herein that seized properties

were sent to the Regional Forensic Science Laboratory,

Bilaspur for chemical testing (Ex.P/27), the samples of seized

articles have been found positive vide its report exhibited as

Ex.P/29. Though witnesses are hostile but FIR lodged by the

deceased is a dying declaration under Section 32 of the Indian

Evidence Act. Therefore, this Court is of the considered view that

the trial Court has rightly relied upon the FIR (Ex.P/24) is dying

declaration for the purpose of convicting the appellant for the

offence punishable under Section 304-II of IPC.

13. Considering the above facts and circumstances of the case,

particularly, considering the fact that only one injury caused to

the deceased through brick on his head without intention to kill Neutral Citation 2024:CGHC:20955

him and the appellant has undergone about 05 years and 11

months in this case out of period of 10 years sentence imposed

upon him by the trial Court, I am of the considered opinion that

the ends of justice would be met if, while upholding the

conviction imposed upon him, the jail sentence awarded to him

is reduced to the period already undergone by him and the fine

sentence should be enhanced.

14. Consequently, the appeal is partly allowed. The conviction of

the appellant under Section 304 Part-II of the IPC is affirmed

and against the conviction he is sentenced to the period already

undergone by him. However, the appellant is directed to pay

Rs.10,000/- (rupees ten thousands only) as a fine amount which

shall be payable within a period of 30 days from the date of

receipt of this order. In default of payment of the fine amount,

the appellant shall liable to further undergo simple imprisonment

for three months.

15. Records of the trial Court be sent back along with a copy of this

order forthwith for information and necessary compliance.

Sd/-

(Arvind Kumar Verma) Judge Vasant