1 2025:CGHC:6900 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 881 of 2005 Diwali @ Dipawali @ Dineshwar Prasad Devid S/o Sahasram, Aged about 27 years, Occupation Labourer, R/o Jute Mill, Bajhinpali, District Raigarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through: District Magistrate, Raigarh (Chhattisgarh) ... Respondent For Appellant : Mr. Rajendra Tripathi, Advocate. For Respondent/State : Mr. Ajay Kumrani, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 06/02/2025 1. Heard Mr. Rajendra Tripathi, learned counsel for the appellant as well as Mr. Ajay Kumrani, learned Panel lawyer appearing for the State/ respondent. 2. Today, the matter is listed for orders on IA No. 1/2025, which is an application for condonation of non-appearance of the appellant before the Registry of this High Court on 25.01.2024. 3. Mr. Tripathi submits that because of some confusion in the dates, the 2 appellant could not appear before the Registry of this Court which may be condoned and he may be granted any other date on which he may cause his appearance. For the reasons stated therein, the application is allowed. However, since the matter relates to the year 2005, this Court deems it appropriate to hear the same finally and as such, with the consent of learned counsel appearing for the parties, the matter is heard finally. 4. The appellant has preferred this appeal under Section 374(2) of the Criminal Procedure Code, 1973, challenging the judgment of conviction and order of sentence dated 28.11.2005 passed by the learned 4th Additional Sessions Judge, FTC, Raigarh, in Sessions Trial No.66/2005 by which the appellant has been convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years with fine of Rs. 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. 5. The case of the prosecution, in brief, is that on 16.04.2005 at around 8:30 p.m. the deceased Rajesh Nirala alongwith Tarachand, Hardip and Manoharlal had gone to liquor shop. The deceased bought liquor and all the four persons were consuming liquor. Hardip Singh was sitting on the boundary wall and Rajesh and Tarachand were sitting on the ground. At that time, the appellant came and asked them as to why they were sitting on the boundary wall and pulled the collar of Hardip Singh. Seeing this, the deceased came in between to intervene upon which the appellant pushed the deceased upon which the deceased fell on the ground and became unconscious. Then the appellant went inside the liquor shop and brought water and poured on the head of the deceased but the deceased did not came to consciousness. Thereafter, he called a Rickshaw and 3 took him to K.G.Hospital, Raigarh where the Doctor examined and declared him dead. 6. On the intimation of Dr. Anil Kumar Kushwaha, merg intimation bearing No. 34/2005 (Exhibit P/6) was recorded by the police and inquest (Exhibit P/11) was prepared. The postmortem of the deceased was conducted vide Exhibit P/15 and the FIR (Exhibit P/13) was recorded on the basis of merg intimation by Inspector C.P.Bhatt. During the course of investigation, two bottles of liquor were seized from the liquor shop. 7. After completion of the investigation, charge sheet was filed by the police before the Chief Judicial Magistrate, Raigarh and the learned Magistrate committed the case to the Court of Sessions. 8. Charges were framed against the appellant for the offences under Sections 304 of the IPC which was denied and the appellant prayed for trial. 9. In order to bring home the offence, the prosecution examined as many as 16 witnesses, namely Mohd. Aziz (PW-1), Tarachand (PW-2), Manoharlal Nirala (PW-3), Hardip Singh (PW-4), Abdul Salim (PW-5), Sobhnath (PW-6), Mohanmati (PW-7), Nandlal Dansena (PW-8), Yadam Reddy (PW-9), Jagdish (PW-10) Ramesh Chouhan (PW-11), Dilip Nirala (PW-12), Lalit Kumar (PW-13), Sanuk (PW-14), I.L.Kurre (PW-15) and Dr. R.K.Agrawal (PW-16). 10. The statement of the appellant/convict was recorded under Section 313 Cr.P.C. wherein he expressed his ignorance about many questions and some of them were denied as well. He stated that he had been falsely implicated in this case. 4 11. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 12. Mr. Rajendra Tripathi, learned counsel for the appellant submits that the death of the deceased cannot be said to be homicidal as the allegation against the appellant is that he merely pushed the deceased when he came to intervene in the scufÒe which took place between the appellant and one Hardip Singh. Even in the postmortem report, there are no injuries found on the body of the deceased and the cause of death has been stated to be syncope and even the cause of death could not be ascertained. He has also paid the fine amount. There is no material on record to show that there was either any intention or knowledge on the part of the appellant to cause death of the deceased. The deceased himself was in a drunken condition as is evident from the postmortem report which states that some dirty coloured fluid was found in the stomach of the deceased. Even the viscera report (Exhibit P/19) does not indicate that the deceased was administered any kind of poisonous substance. The appellant is a Plumber by profession and during the trial and after his conviction, he had remained in jail for a period of about 3 ½ months. Hence, he prays that this appeal may be allowed and the appellant may be acquitted of the charges. 13. On the other hand, Mr. Ajay Kumrani, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned trial 5 Court needs no interference and the appeal filed by the convict/appellant deserves to be be dismissed. 14. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 15. The prosecution witnesses Mohd. Aziz (PW-1), Abdul Salim (PW-5), Rupesh Chouhan (PW-11), Dilip Nirala (PW-12), Sanuk (PW-14) were declared declared hostile as they had not supported the prosecution case. 16. Tarachand (PW-2) stated that when there was a scufÒe between appellant and Hardip. When deceased intervened, the appellant pushed him aside upon which he fell on the ground. He alongwith his other friends though that the deceased had sustained elpileptic attack and hence, they brought some leather materials near his nose but when since his consciousness did not return, he was taken to hospital where he was declared dead after 5-10 minutes. Similar deposition has been made by Manoharlal Nirala (PW-3) Hardip Singh (PW-4). One of the witness namely Yadam Reddy (PW-9) stated that appellant had asked those people who were sitting on the boundary wall and consuming liquor, to come down and to consume liquor. Thereafter, the appellant ran inside the liquor shop and shouted for bringing water and after taking water, he ran outside the shop. 17. From the statement of the above prosecution witnesses, it is clear that there was neither any enmity nor any dispute between the appellant and the deceased. Even it is not a case where the deceased and the appellant had any quarrel. As per the deposition of the prosecution witnesses, there was a scufÒe between the appellant and Hardip Singh 6 (PW-4) who was consuming liquor by sitting on the boundary wall which was being objected by the appellant. The deceased intervened in between them and simply the appellant tried to push him back because of which the deceased fell on the ground and became unconscious. When the deceased became unconscious, even the appellant ran inside the liquor shop to bring water so that the deceased may be brought to consciousness. Hence, it shows that there was no intention of the appellant to cause any kind of harm to the deceased. However, unfortunately, the deceased died when he was taken to the hospital. 18. The postmortem report also is not clear and does not state the reason of death. No injuries have been found on the body of the deceased and the cause of death has been stated to be syncope. It is an admitted position that the deceased alongwith others were consuming liquor at that place. There was no premeditation on the part of the appellant to cause any sort of injury to the deceased neither there was any knowledge or intention that mere pushing away the deceased would take away his life. Hence, there is nothing on record to show that the act of the appellant would fall under Section 304 Part II of the IPC. 19. The appellant was in jail from 19.04.2005 to 29.05.2005 and after his conviction by the learned trial Court on 28.11.2005 till he was granted bail by this Court on 25.01.2006. In this way, he has undergone jail sentence for period of about 3 ½ months. 20. From the above analysis, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the judgment of conviction and order of sentence passed by the learned trial Court needs to be interfered with by this Court. 7 21. Accordingly, the judgment of conviction and order of sentence dated 28.11.2005 passed by the learned trial Court is set aside and instead of convicting the appellant for the offence under Section 304 Part II of the IPC, the appellant is convicted for the offence under Section 323 of the IPC and is sentenced to the period already undergone by him. The fine amount imposed by the learned trial Court is upheld which has already been deposited by the appellant on 29.11.2005. 22. Accordingly, the appeal is partly allowed. 23. The appellant is stated to be on bail. He need not surrender, however, his bail bonds shall remain effective for a period of six months from today in view of the provisions of Section 437-A of the Cr.P.C. 24. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- (Ramesh Sinha) CHIEF JUSTICE Kunal / Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.07 16:31:26 +0530