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2020 Supreme(All) 261
IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Chandresh Yadav @ Chanda – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 568 of 2017
Decided On : 23-01-2020
Advocate Appeared:
For the Appellants : Anant Prakash Mishra, Chandra Shekhar Pandey, Surendra Kumar Chaubey.
Headnote:
Indian Penal Code, 1860 – Sections 304, 504 – Code of Criminal Procedure, 1973 – Section 313 – Written complaint lodged by complainant with allegation appellant was giving filthy abuses to his younger brother when he refused to do so then appellant gave lathi blow on head of deceased due to such assault deceased got serious injury –Offence mentioned in charge-sheet were triable by court of session, Chief Judicial Magistrate, committed case to court of session for trial where case crime made over for trial from there to court of sessions Judge, on basis of material on record and after affording opportunity of hearing to prosecution as well as the accused-appellant, framed charge under Sections 304, 504 IPC –Additional Session Judge, by judgment and order after analyzing evidence convicted appellant under section 304, 504 IPC – Held, Court is of opinion that nature of simple injury inflicted by accused on part of body on which it was inflicted –Weapon used to inflict same and circumstances in which injury was inflicted do not suggest that appellant had any intention to kill deceased – All that can be said is that appellant had knowledge that injury inflicted by him was sufficient to cause death of deceased –Case would, therefore, more appropriately fall under section 304 Part II IPC – So appellant is rightly convicted under Section 304 Part II and 504 IPC. –Conviction provided under section 304 Part II is confirmed. –Appeal Partly Allowed. (Paras 24, 25, 26, 27)
Facts of Case:
Written complaint lodged by complainant with allegation appellant was giving filthy abuses to his younger brother when he refused to do so then appellant gave lathi blow on head of deceased due to such assault deceased got serious injury –Offence mentioned in charge-sheet were triable by court of session, Chief Judicial Magistrate, committed case to court of session for trial where case crime made over for trial from there to court of sessions Judge, on basis of material on record and after affording opportunity of hearing to prosecution as well as the accused-appellant, framed charge under Sections 304, 504 IPC –Additional Session Judge, by judgment and order after analyzing evidence convicted appellant under section 304, 504 IPC.
Findings of Court:
Court is of opinion that nature of simple injury inflicted by accused on part of body on which it was inflicted –Weapon used to inflict same and circumstances in which injury was inflicted do not suggest that appellant had any intention to kill deceased – All that can be said is that appellant had knowledge that injury inflicted by him was sufficient to cause death of deceased –Case would, therefore, more appropriately fall under section 304 Part II IPC – So appellant is rightly convicted under Section 304 Part II and 504 IPC. –Conviction provided under section 304 Part II is confirmed.
Result: Appeal Partly Allowed
JUDGMENT :
SURESH KUMAR GUPTA, J.
1. Heard learned counsel for the appellant and learned A.G.A.
2. This criminal appeal has been preferred by appellant-Chandresh Yadav @ Chanda against the judgment and order dated 02.12.2016, passed by Additional Session Judge, Court No. 12, Varanasi, in S.T. No. 161 of 2015, State vs. Chandresh Yadav @ Chanda, arising out of Case Crime No. 20 of 2015, P.S. Shivpur, District Varanasi, whereby convicted under Section 304 IPC, for 8 years rigorous imprisonment with fine of Rs. 4,000/- and in default of fine, 4 months additional imprisonment and under sections 504 IPC for 1 year rigorous imprisonment and fine of Rs. 2,000/- and in default of fine 2 months additional imprisonment to appellant. Both the sentences were directed to run concurrently.
3. Brief facts of this case are as follows.
4. The written complaint (Ext. Ka-1) lodged by complainant Namwar Singh, PW-1 by way of NCR (Ext. Ka-5) with allegation that on 21.01.015 in the morning at 10.30 a.m. appellant Chandresh Yadav S/o Buddhu Yadav was giving filthy abuses to his younger brother Arvind Yadav when he refused to do so then appellant gave a lathi blow on the head of deceased Arvind Yadav due to such assault deceased got serious injury.
5. On the basis of written complaint by PW-1 NCR No. 10/2015 was lodged at police station Shivpur, under sections 323, 504 IPC at 15.05 p.m. on 21.01.2015 which was duly entered in G.D. Injured Arvind Kumar Yadav admitted in Pandit. Deen Dayal Upadhyay Government Hospital, Varanasi, for treatment, but on account of serious condition deceased referred to Nova Hospital, Varanasi, for better treatment, where he died on 28.01.2015 at 6.35 p.m. after 7 days on account of head injury sustained by him. On receiving of such information this NCR No. 10/15 converted as Case Crime No. 20/15, under section 304 IPC by way of G.D. No. 19, 9.40 on 01.02.2015 as Ext. Ka-6.
6. The case was investigated by Sub-Inspector Raghvendra Bahadur Singh (PW-4). He received all the documents related to this case and enclosed in CD and during investigation recorded the statement of constable clerk Vinod Kumar and after recorded the statement of PW-1, prepared site plan Ext. Ka-3 on pointing out of complainant and thereafter the statement of sub-Inspector Kashyap Kumar was recorded who prepared the inquest report Ext. Ka-2, after recording the statement of eye-witnesses, completing the formalities of investigation, charge-sheet Ext. Ka-5 submitted under sections 323, 504, 304 IPC.
7. Post-mortem of the body of the deceased was conducted by Dr. Surendra Kumar Pandey (PW-5) on 29.01.2015 at 3.30 p.m. who also prepared the post-mortem report Ext. Ka-7. He has found following injuries on the person of deceased Arvind Kumar Yadav:-
1. Contusion 10.5 cm x 4.5 cm placed on right side upper lateral part of chest up to nipple from the axilla.
2. Contusion 6.5 cm x 4 cm placed on left side upper and lateral part of chest at level of left nipple.
3. On opening scalp extravasation of blood on frontal area of scalp in area 10 cm x 4.5 cm.
4. On opening the scalp extravasation of blood on external occipital on protuberance below in area 5 cm x 3.2 cm. Colour of contusion purplish in colour.
5. Internal Examination-the bone behind the head was fractured. Membrane of brain was congested. Brain was also congested.
Cause of death due to effects of Coma as a result of Head and Brain injuries.
8. Since the offence mentioned in the charge-sheet were triable by the court of session, the Chief Judicial Magistrate, Varanasi, committed the case to the court of session for the trial where the case crime No. 20 of 2015 was registered as ST. No. 161 of 2015, State vs. Chandrash Yadav, made over for trial from there to the court of sessions Judge, Court no. 12, Varanasi, on the basis of material on record and after affording opportunity of hearing to the prosecution as well as the accused-appellant, framed charge under Sections 304, 504 IPC.
9. The accused-appellant did not plea
