1 2025:CGHC:17346 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 101 of 2016 1 - Charuchand Puri S/o Umeshwar Puri Aged About 21 Years R/o Shivaji Nagar, Mohaba Bazar, Police Station Aamanaka Raipur, Rev. And Civil District Raipur, Chhattisgarh., Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station Aamanaka, Raipur, District Raipur, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Pushkar Sinha, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 15/04/2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a counsel of the High Court legal aid services committee, Mr. Pushkar Sinha, Advocate has been nominated to assist the court. 2 2. I have gone through the judgment under appeal and the deposi- tions of witnesses and exhibits assisted both by Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesj) , I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 3. This criminal appeal has been filed under Section 374 (2) of CrPC, 1973 by the appellant against the judgment of conviction and order of sentence dated 31.12.2015 passed by the learned 5th Additional Sessions Judge Raipur, District-Raipur (C.G.), in Ses- sions Case No. 119/2015, whereby the appellant has been con- victed and sentenced as follows:- Conviction Sentence U/s 323 of IPC SI for 1 year and fine of Rs. 500/-, in default of payment of fine, additional S.I. for 1 month. 4. Brief facts of the case are that the complainant along with his wife and 6-year-old son Durgesh lives under the under-construction market building and does plaster work in the building. On 30/03/15 at 4.30 pm, he was doing plaster work on the upper floor along with other persons. On the same floor, his 6-year-old son Durgesh was playing at some distance, when the accused Charuchand Goswami of the locality made other children playing on the terrace 3 run and threw a brick in his hand and hit him, which hit Durgesh on the left side of his stomach. Due to pain, his wife took Durgesh to Om Clinic Mohaba Bazaar and got him checked. On 07/04/15, when he was taken to Ambedkar Hospital for treatment due to se- vere pain, the doctor declared Durgesh dead and the cause of death was stomach injury. On the basis of the report of the appli- cant, an offence under Section 304 of IPC was registered by the Police Station Amanaka, Raipur. During investigation, Panchnama was prepared and post mortem of the dead body was done. The statements of the witnesses were recorded. After visiting the spot, a visual map of the incident site was made. The seized properties were sent to Forensic Science Laboratory, Raipur for testing. The accused was arrested and arrest panchnama was prepared. After necessary investigation, a charge sheet was prepared against the accused by Police Station Amanaka, Raipur under Section 304 IPC. 5. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 10 witnesses. Statement of the accused/appellant under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false impli- cation in the case. No Defence has been examined in support of its case. 6. After hearing the parties and going through the material available on record including the evidence of the witnesses, the learned Sessions Judge Raipur, District Raipur (C.G.), after appreciating 4 oral and documentary evidence available on record vide judgment dated 31.12.2015, convicted the appellant for the offence punish- able under Section 323 of IPC and sentenced him as mentioned in opening paragraph of this order. 7. Learned counsel for the appellant submits that the prosecution has utterly failed to prove its case under Section 323 IPC beyond all reasonable doubts. He further submits that as there was no in- tention on the part of the accused/appellant to cause death of the victim, the offence under Section 323 IPC is not made out. Alter- natively, counsel for the accused/appellant submits that if the con- viction part of the judgment impugned is not going to be interfered with, keeping in mind the fact that the accused/appellant has al- ready remained behind the bars from 04.04.2015 to 22.01.2016, the sentence imposed on him may be reduced to the period al- ready undergone. 8. On the other hand, counsel appearing for the State supports the judgment impugned and submits that taking into consideration the statements of the injured/victim (PW-5), eye witness Dev Muni (PW-1), and Dr. Sanjay Kumar (PW-1) which gets corroboration from the testimony of other independent witnesses, the findings recorded by the Additional Sessions Judge, Raipur holding the ac- cused/appellant guilty under Section 323 IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal. 5 9. Heard counsel for the parties at length and went through the evi- dence on record with utmost care and caution. 10. PW-3 Rajkumar Netam has deposed that on the date of the inci- dent, he was doing plastering work in the market construction in Mohaba Bazaar, where he lived with his family. On the date of in- cident, his son Durgesh other childrens were playing. At about 4:30 in the evening, the accused came there and picked up a brick and threw it towards the children, due to which the brick hit the rib of waist of Durgesh and he got injured. Then Durgesh was taken to the doctor for examination. On the advice of the doctor, an X-ray was also done. The doctor told that the Durgesh is fine. On the second day of the incident, he went to the Amanaka police station and lodged a report of the said incident, but the police did not come. On the third day of the incident, his son Durgesh died. The above statements of the applicant have also been supported by PW-4 Ashu, PW-5 Asha Netam, PW-6 Kundan Sahu, PW-7 Savitri. 11. PW-3 Rajkumar has accepted in cross-examination that when he took the child for treatment, a scratch mark was visible near the child's waist. After examining the child, the doctor had said that the child did not have any major injury and the child is fine. PW-4 Ashu has also accepted in cross-examination that the child had a scratch and swelling near the waist on the left side. The accep- tance of the above facts by the witnesses in cross-examination also does not make the above statement of applicant Rajkumar 6 and witness Ashu doubtful. Thus, the statements of applicant Ra- jkumar and witnesses Ashu, Asha Netam, Kundan Sahu and Sav- itri confirm the fact that at the time of the incident, accused Charuchand threw a piece of brick and hit the applicant's son, de- ceased Durgesh, and he had injuries near the waist and ribs. 12. PW-1 Dr. Sanjay Kumar has stated that on 31.3.2015, Durgesh aged 6 years was brought for X-ray examination of hip joint (pelvis). He has given the X-ray report in which no bone fracture was found in the hip joint (pelvis) of the child Durgesh. The X-ray report given by him which is exhibited as Ex. P/1. The said child was referred by Dr. Bharat Kishore. In cross-examination, the wit- ness has stated the fact to be correct that no bone fracture was found in the X-ray report and the child did not have any fracture. 13. PW-2 Dr. Bharat Kishore has also stated that on 30.3.2015, Durgesh aged 6 years was brought to his private clinic situated in Mohaba Bazar Raipur for medical examination. On asking about the injury, the parents said that the child had fallen while playing. On examination, he found that Durgesh had an injury over his waist and after giving him first aid he advised PW-3 to get an X- ray done. The next day Master Durgesh's father (PW-3) came with the X-ray report. He saw in the X-ray report that the injury was normal and they did not brought the child with them. Then he asked how the child was, he was told that the child was healthy. After the examination he returned the X-ray report. In cross-exam- ination the witness has accepted that the X-ray report was normal, 7 no mark of injury was visible on the body of the injured. From the statements of witnesses Dr Sanjay Kumar and Dr Bharat Kishore and from the observation of the X-ray report presented, it appears that there was an injury of normal nature near the waist of child Durgesh. 14. PW-9 Dr. Snigdha Jain has stated that on 02.04.2015, constable Omkar Prasad Chandra of Amanaka police station brought the body of deceased Durgesh, son of Rajkumar Netam, to Mekahara Hospital in front of her for postmortem at 12:30 p.m. On conduct- ing the postmortem, it was found that the body of the deceased was cold, dark in colour, he was wearing blue and white coloured half pants, blue T-shirt, brown underwear and torn pink coloured scarf. His eyes were half-open, mouth was open, tongue was in- side and hair on the head was 1-1.5 cm long and nails were blue, stiffness was present laterally in both hands and both legs, PM li- vidity was present on the back and was fixed. The abdomen of the deceased was bloated and there was blackish green coloured dis- coloration on the left side of the abdomen on the left side of the navel in an area of 5 x 5 cm laterally. There was no external injury present on the body of the deceased. On internal examination the skull, cranium, sacrum, brain were normal. The brain was soft and congested. The diaphragm, ribs, lungs, larynx, throat, lungs, heart and large vessels were normal. The mesentery and peritoneal cavities of abdomen had adhesions contained yellow and green pus and slag. The cavities contained 150-200 ml of turbid foul 8 smelling fluid. The stomach was empty and the mucosa was ede- matous. Both intestines contained pus and slag, which was present over the mesentery. The spleen was hard on cutting and was white and grey in colour. The capsule of spleen was adherent and contained pus and slag. The kidneys, urinary bladder and genito-urinary organs were normal. 15. Therefore, after considering the above evidence, this Court is of the considered view that the prosecution has failed to prove be- yond doubt that on 30/03/2015 at about 16.30 pm in the first floor of under construction market building in Shivaji Nagar under Amanaka police station, Raipur, the accused, knowing that death is likely due to hitting with a brick, caused the death of the de- ceased child Durgesh by hitting him with a brick, which does not fall in the category of murder which comes in the category of homicide. But the fact that the deceased got a simple injury near the waist due to hitting with a brick by the accused is proved be- yond doubt. Therefore, the trial Court has rightly convicted the ac- cused under Section 323 of the Indian Penal Code and sen- tenced him to undergo the sentence described in para 2 of this judgment. 16. As regards sentence, considering the facts and circumstances of the case, particularly, the fact that the injuries caused to the de- ceased was simple in nature and the accused has remained be- hind bars from 04.04.2015 to 22.01.2016 and has undergone around 9 months of the jail sentence, therefore, this Court is of the 9 opinion that it would be in the interest of justice if the sentence im- posed on him is reduced to the period already undergone. How- ever, fine imposed by trial Court is maintained. 17. Consequently, the appeal is partly allowed. 18. The appellant is reported to be on bail. His bail bonds are not dis- charged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C. 19. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima