Beer Singh Kujur, S/o Late Piyus Kujur, Aged About 21 Years, R/o Village Mayur v. 1 - Basil Tirkey, S/o Joseph Tirkey Aged About 28 Years R/o Village Mayur
Case Details
PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.01.17 17:17:08 +0530 1 2025:CGHC:2681-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 27 of 2013 Beer Singh Kujur, S/o Late Piyus Kujur, Aged About 21 Years, R/o Village Mayur Chundi, Post Dandadih, P.S. Duldula, District Jashpur (C.G.) ... Appellant versus 1 - Basil Tirkey, S/o Joseph Tirkey Aged About 28 Years R/o Village Mayur Chundi, Post Dandadih, P.S. Duldula, District Jashpur (C.G.) 2 – Claimant, S/o Libanus Tirkey Aged About 22 Years R/o Village Bhalmanda, P.S. Kurdeg, Distt. Simdega, (Jharkhand) 3 - Jaipal S/o Libanus Tirkey Aged About 19 Years R/o Village Bhalmanda, P.S. Kurdeg, Distt. Simdega, (Jharkhand) 4 - Kuldeep S/o Libanus Tirkey Aged About 20 Years R/o Village Bhalmanda, P.S. Kurdeg, Distt. Simdega, (Jharkhand) 5 - State Of Chhattisgarh, Through P.S. Duldula, Post Duldula, Distt. Jashpur (C.G.) ... Respondent(s) For Appellant
Legal Reasoning
: Mr. V.K. Pandey, Advocate For Respondent No.1 : Mr. Nilkanth Malaviya, Advocate For State/Respondent No.5 : Ms. Smita Jha, P.L. 2 Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board. 16/01/2025 Per Deepak Kumar Tiwari , J. 1. The appellant has preferred the present appeal under Section 372 of the Code of Criminal Procedure, 1973, against the judgment dated 19/02/2013 passed by the Additional Sessions Judge, Kunkuri, District- Jashpur in Sessions Trial No.27/2012, whereby, the learned Additional Sessions Judge has acquitted the accused Jaipal and Basil Tirkey of the charge under Section 120 (B) of the IPC and under Sections 4 and 5 of the Chhattisgarh Tonahi Pratarna Nivaran Adhiniyam. The other accused, namely, Kuldeep and claimant were acquitted of the charges under Sections 302, 120 (B), 201 of the IPC and under Sections 4 and 5 of the Chhattisgarh Tonahi Pratarna Nivaran Adhiniyam. However, learned Additional Sessions Judge has convicted and sentenced the accused Jaipal and Basil Tirkey as under:- Name of the Accused Conviction Sentence Jaipal and Basil Tirkey Under Section 304 (II) of IPC Jaipal and Basil Tirkey Under Section 201 of IPC R.I. for 7 years and fine of Rs.2,000/-, each, in default, additional R.I. for 6 months, each R.I. for 1 year, fine of in Rs.1,000/-, default, additional R.I. for 6 months, each each, 3 2. In Cr.M.P. No.231/2013, leave to appeal has been granted only in favour of the respondent No.1-Basil Tirkey and respondent No.3-Jaipal vide order dated 07/03/2013. 3. The prosecution case in brief is that on 06/01/2012, son of deceased- Piyus Kujur, namely, Beer Singh Kujur, Resident of Village Mayur Chundi has lodged the missing report Ex.P-24, wherein it has been stated that on 04/01/2012, in the morning, his father had gone to the house of Khristopher Minj (PW-2) to attend a function and after taking meal, he had gone to the house of his neighbour – Ajit Tirkey and also dined in his house. During the investigation, it has been revealed that the accused persons were having an enmity with the deceased for practising black magic (witchcraft), so in a planned manner, they hatched a conspiracy to commit murder of the deceased. After causing murder by using Iron rod, the dead body was thrown in the well of village-Bhalmanda. Memorandum statement of respondent No.-1 Basil Tirkey (Ex.P-2) was recorded and from his possession, weapon, which was used for causing murder i.e., Iron rod, Rukhna (an instrument used for the cutting of tobacco) was seized, vide Ex.P-3. On the basis of the memorandum statement of respondent No.3 – Jaipal (Ex.P-9), a cycle, which was used for carrying the dead body was seized, vide Ex. P-5. In the back mudguard of the cycle, the blood stains were also found. Seized articles were been sent for FSL. In the mudguard of the cycle, blood stains has been confirmed but no blood stains was confirmed on the Iron rod. Dr. Vipin Indwar (PW-11) has conducted the postmortem vide Ex.P-21. He has found 04 injuries on the body of the 4 deceased, which were caused by using hard and blunt object and the nature of injury was reported to be homicidal in nature. 4. After completing the investigation, charge-sheet has been filed. In order to prove its case, prosecution has examined as many as 15 witnesses and has exhibited 36 documents. In the examination recorded under Section 313 of the Cr.P.C, the respondents/accused abjured their guilt. 5. On the basis of material available on record, learned Sessions Judge has convicted the respondent No.1- Basil Tirkey and respondent No.3- Jaipal holding that they have caused murder of the deceased- Piyus Kujur, but taking into consideration attending facts and circumstances, altered the conviction from 302 IPC to 304 (II) of IPC , for which leave has been granted. 6. Learned counsel appearing for the appellant would submit that though the trial Court at para-20 of the impugned judgment categorically opined and held guilty the respondents/accused- Basil and Jaipal for the offence under Section 302 of the IPC, but without any substantial material, altered conviction from 302 to 304 (II) of the IPC. So prays to allow the appeal and award conviction to the respondents/accused- Basil and Jaspal for the offence punishable under Section 302 of the IPC. 7. As per contra, learned counsel Mr. Neelkanth Malaviya would submit that the accused persons have not preferred any appeal and also did not incline to prefer any appeal. He would submit that before the alleged incident, there is a evidence available on record that deceased 5 had gone to the house of Khristopher Minj (PW-02) and in that house, after dining, they had also consumed liquor. Thereafter, a sudden fight occurred and, without any premeditation, such an incident happened. So the trial Court has rightly altered the conviction from the Section 302 of the IPC to 304 (II) of the IPC. As such, no interference is warranted. 8. We have heard learned counsel for the parties at length and perused the entire record with utmost circumspection. 9. Beer Singh Kujur (PW-01), son of the deceased- Piyus Kujur has deposed that on the date of incident i.e. on 04/01/2012, his father had gone to attend the function to the house of Khristopher (PW-02) and also to attend a marriage function. Khristopher (PW-02) has also deposed that the deceased came to his house and after dining, consumed liquor along with other persons and thereafter, he along with 10-12 other persons had gone to the house of Ajit Tirkey and in that house, they consumed liquor. At para 8 of his deposition, he has categorically admitted that he is not aware that in an inebriated condition, the deceased would fight with 10 to 12 other persons. Further, he admitted that in such fight, the deceased had died. 10. Son of the deceased, namely, Beer Singh Kujur at para-10 of his cross- examination clearly admits that the respondent/accused- Basil Tirkey never threatened to his father in front of him. 11. Dr. Vipin Indwar (PW-11) has conducted the postmortem vide Ex.P-21 and found 4 injuries on the body of the deceased viz 1- Lacerated wound over left fronto-parietal region of scalp in the size of 2” x ½” upto 6 bonedepth. 2- Lacerated wound over left mandibular region of cheek in the size of 2½” x 1” upto bonedepth. 3- Lacerated wound above the left upper eyebrow in the size of 1½” x ½ “ upto bonedepth caused by hard & blunt object. 4- Lacerated wound over right Latero-frontal region of scalp in the size of 1½” x1” upto bonedepth caused by hard and blunt object. All the injuries were caused by the hard and blunt object. The doctor finally opined the deceased died due to injury caused on the brain and shock and homicidal in nature. The said fact has not been disputed by the parties. 12. From the evidence available on record, it appears that deceased-Piyus Kujur had gone to attend the social rituals at the house of the Khristopher (PW-02) and in that house, so many other persons are present and they had consumed the liquor and the deceased had also consumed liquor along with them, thereafter, it appears that, certain fight took place and in a sudden fight, without any premeditation, the said incident happened. So the learned Sessions Judge has rightly altered the conviction of Jaipal Tirkey and Basil Tirkey from the Section 302 of IPC to Section 304 (II) of the IPC. 13. In view of the aforesaid discussion, we are of the opinion that this appeal has no merit and, the same is, hereby dismissed. Sd/- (Sanjay S. Agrawal) Judge Sd/- (Deepak Kumar Tiwari) Judge Prashant