Chattisgarh High Court
Naseem Warsi vs State Of Chhattisgarh 8 Cra/1080/2012 ... on 19 May, 2020
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NAFR
HIGH COURT OF CHHATTISGARH, BIILASPUR
CRIMINAL APPEAL NO. 537 OF 2018
Judgment Reserved on 14/01/2020
Judgment delivered on 19/05/2020
Naseem Warsi, aged 44 years S/o Gaddan Choudhary R/o Indira Market,
Power House, Bhilai, P.S. Chawni, Tehsil & Distt. Durg (C.G.)
....Appellant
Versus
State of Chhattisgarh: Through Station House Officer, Chawni, Bhilai, Distt.
Durg (C.G.)
...Respondent
For Appellant: Mr. Jaydeep Singh, Advocate
For Respondent: Mr. Alok Nigam, Govt. Advocate
Hon'ble Shri Justice Arvind Singh Chandel
CAV JUDGMENT
1. This appeal has been preferred against the judgment dated 22/03/2018 passed in Sessions Trial No. 69/2017 by the First Additional Sessions Judge to the Court of Additional Sessions Judge, Durg (C.G.), whereby the Appellant has been convicted under Section 304 Part-II of the Indian Penal Code and sentenced to undergo RI for 5 years and to pay fine of Rs. 500/- with default stipulation.
2. Facts of the case are that Complainant Zahur Ali (PW1) has taken a shop on rent situated at Indira Market, Bhilai. The Chajja of the said shop was tilted and to support that two wooden bamboos were afixed. On 2 23/06/2016, the Appellant had cutted the said wooden bamboos and the said Chajja got fallen, as a result one boy Ehshan Ali died. The merg information was lodged vide Ex.P-1. Inquest proceeding was conducted vide Ex.P-5. Postmortem of the body was conducted by Dr. B.N. Dewangan (PW9). His report is Ex.P-12. On the basis of inquiry report, FIR has been lodged vide Ex.P-14. Statements of witnesses were also recorded under Section 161 of the Cr.P.C. After completion of investigation, a charge-sheet was filed. Trial Court framed the charges. To prove the guilt of the Appellant, the prosecution has examined as many as 11 witnesses. Statement of the Appellant under Section 313 of the Cr.P.C has been recorded wherein he has pleaded his innocence and false implication in the matter. No defence witness has been examined.
3. After trial, the trial Court has convicted and sentenced the Appellant as mentioned in paragraph one of this judgment. Hence, this appeal.
4. Learned counsel appearing on behalf of the Appellant has submitted that the Appellant has been wrongly convicted without there being any clinching evidence available on record. It has been submitted that the material witnesses Khalik (PW4), Saleem Khan (PW5) and Ramruchi (PW6) have not supported the case of the prosecution and have turned hostile, therefore, it cause serious doubt on the case of the prosecution. It has been further submitted that there is no material available on record on the basis of which the ingredients of the alleged offence have been proved. There are material contradictions and omissions occurred in the statements of the prosecution witnesses. It has been further submitted that if the entire case of the prosecution is taken as it is, yet offence under 3 Section 304 Part (A) of the IPC should be made out against the Appellant.
5. Learned counsel appearing on behalf of the State opposes the argument advanced by the counsel for the Appellant and submits that there is sufficient evidence available on record to convict the Appellant, therefore, the conviction does not require any interference.
6. I have heard counsel for the parties and perused the record minutely.
7. With regard to the condition of Chajja, Zahur Ali (PW1) has deposed that the Chajja of the shop which he had taken on rent, was stood there with the help of wooden bamboos. Ranglal Shah (PW10) who is owner of the shop has deposed that the condition of the shop was very good, but its Chajja was tilted and for its support he had affixed two wooden bamboos. The above statement of these witnesses have not been rebutted during their cross-examinations in any manner. Thus, from the statements of these witnesses, it is established that the Chajja of the shop which got fallen belongs to Ranglal (PW10) and the said shop was taken on rent by Zahur Ali (PW1). It is also established that the Chajja of the shop was supported by two wooden bamboos.
8. With regard to the incident, Zahur Ali (PW1) has deposed that on the date of incident, the Appellant had directed a person to cut the wooden bamboos, which were affixed for support of Chajja. He tried to convince the Appellant to not do the same and went somewhere. He further deposed that after one hour when he returned to his shop, he saw that one wooden bamboo was already cutted and second bamboo was going to cut. Then, he again tried to convince the Appellant to not do the same. Listening this, 4 the person who was cutting the bamboo got away from there. Then the Appellant pulled the second bamboo by tightning a saree on that, due to which the Chajja got fallen and the boy who was playing below the said Chajja got died. Naeem Ahmed (PW3) had categorically deposed that the Appellant was pulling the said wooden bamboo at the time when children were playing below there. The Appellant ignored this fact and pulled the bamboo. The above statements of these witnesses have not been duly rebutted during their cross-examination.
9. According to the proseuction, Ramruchi (PW6) is the person who, on the instance of the Appellant, was cutting the said bamboos, but he has not supported the case of the prosecution and has turned hostile. He only deposed that he was present on the spot at the time when the said Chajja got fallen. He also got injuries, but he did not disclose how the said Chajja got fallen.
10. On minute examination of the above evidence, it makes clear that Zahur Ali (PW1) had taken a shop on rent from Ranglal Shah (PW10). Though the condition of the shop was good, the Chajja of the said shop was tilted and supported by two wooden bamboos. From the statement of Zahur Ali (PW1), Naeem Ahmed (PW3) and Barkat Ali (PW7), it is established that at the time of incident some children were playing below the Chajja. The Appellant pulled the half cutted wodden bamboo by tightning a saree and the said Chajja got fallen, due to which one boy Ehsaan got died. As stated by Naeem Ahmed (PW3), the Appellant was well within the knowledge that the children were playing below the Chajja, yet ignoring this fact he had pulled the wooden bamboo. The Appellant had pulled the wooden bamboo 5 by tightning a saree, which itself shows he was very well aware of the fact that due to pulling of said wooden bamboo the Chajja will fall down and to save himself, he had pulled the same by tightning a cloth on that. Meaning thereby, the Appellant was having knowledge that if the Chajja will fall down, the person who were standing below there will get injuries. Inspite of this and to save himself, he had pulled the said bamboo by tightning a saree resulting to fallen of Chajja. The act of the Appellant does not come under any rash and neglegency, but the evidence clearly shows he was having full knowledge that there were children playing below the Chajja and due to fallen of Chajja someone may die. Thus, in my considered view, the conviction of the Appellant is based on the evidence available on record and the trial Court has rightly convicted him. The conviction of the Appellant is affirmed.
11. With regard to the sentence, the Appellant is in jail since 22/03/2018 and has already undergone about 2 years 3 months. He is facing the lis since 2016 and he has no criminal antecedent. Considering this aspect, I am of the view that while upholding the conviction imposed upon the Appellant under the aforementioned section, he is sentenced to the period already undergone by him and the fine sentence imposed upon him be enhanced to Rs. 50,000/-. Ordered accordingly. The enhanced amount of fine shally be payable within a period of one month from the date of receiving the copy of this judgment, failing which the Appellant shall be liable to further undergo RI for 6 months. If any amount towards fine has already been deposited, the same shall be adjusted in the fine amount enhanced/imposed today.
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12. It is directed that Rs. 40,000/- out of total fine amount of Rs. 50,000/- shall be given to the legal heirs of the died boy (Ehsaan Ali) as compensation under Section 357-A of the Cr.P.C.
13. In the result, the appeal is partly allowed to the extent indicated above.
14. Records of the Court below be sent back along with copy of this Judgment for necessary compliance.
Sd/-
(Arvind Singh Chandel) Judge rahul