Q) m? GNEEL H11; E; Away 34,; fawn; . CDURT {3F JUEECiXTiJ’RF; AT BELASF pgmaiam ahangoa 3/0 Gamiarai Lahér‘ ageiL w yrs. W9 villagg‘ — Chhirwani RS. Chakradhar NagM :iisit— Raigm‘h Stat ofM.' e .F fReendaMa w A r0. Cade. ’gag} anée} geciian 7—734 of cede Bf. Cd ? “ a.€"‘a"~.??{"?h’\?\f m EAE 11 C ETF Ay M . a RR HIGH GOURT OF CHHATTI3GARH AT BILASPUR Gt. AM No. 341(2002 Mahangu I L Vs. P.“ State of MJ’. (How Chhattiswh) JUDGMENT FOR CONSIDERATION x s Sd/— f :- gDiliP Raosaheb Deshmukhf g’ ‘ Judge , » k 3 V7 ’ " aaagzdos’i ME HON'BLE sHRI JUSTICE L.c.nHADoo NT . Sd/-. ‘ ’L , j abfpzb -L.C.BHADoa E Post for o' 9 -09-2oos ’ . ‘ Sd/k ‘ DILIP RAOSAHEB DESHMUKH Judge ._ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aggeal No. 341/2002 Mahangu Vs. state of NLP. (Now Chhattisgarh) HON’BLE SHRI JUSTICE L.C.BHADOO & HON’BLE SHRI JUSTICE DILIP RAOSAHEB DESKMUKH, JJ Shi'i Abhay Tiwari, Counsel for the appellant. . Shri J.D.Bajpai, Govt. Advocate/Additional Public Prosecutor with Shri Devesh Verma, Panel Lawyer for the State. jThe followigg Juugent is delivered on 03 -09-2005) Per Dilin Raosaheb Deshmukh, J. r ;dam gg;e This appeal is directed against the judgment dated 19-02— 2002 delivered by Shri Majhar Ali, Illrd Additional Sessions Judge (Fast Track Court), Raigarh in Sessions Trial No. 72/2000 whereby Mahangu was convicted under section— 302 of the I.P.C. for committing murder of Sadhram and was sentenced to imprisonment. for life. 01. rife factual Mam is as under. 0n 02-01-2000 at about 6 P.M. one Murli Kewat was taking to Laxrnan Prasad S/o Sadhram. Co—accused Suresh came there and asked as to Why he was speaking to outsiders and pulled Murli. Murli shouted. (lo-accused Vijay, Fagnu and the appellant came running whereupon Murli somehow got himself released and ran to the house of, Sadhram. Appellant Mahangu accompanied with co—accused Fagnu, Suresh and ‘Vijay went to the house of Sadhram where Sadhram advised them not to indulge in a quarrel. Upon this, co—accused Vijay, n é. ;-, " e ‘ ‘ u ‘ MW «j Smash and Fawn got hold of Sadhram and appellant Mahangu picked up a wooden Pati and dealt a single blew on the Vhead of Sadhram whereupon Sadhram fell unconscious. Sadhram succumd to the hea injmy at night w PW—3 and Murlidhar PW-4 saw the assault on Sadn b appellant Mahau. Laman PW-3 lodged F.l.R. Ex.P-4 and Marg Intimation EXP-8 on dated 03-0 1- 2000 at Police Station—Cln‘ar Nagar. The Station House O$cer, P.S.-Cakmar Nagar, H.C.Gotia, PW-lO reached the place of occunence d mpamd nquest memo vide Ex.P~8 and sent the body of the deceased for postmmtem to the District Hospital. DrJ Sharad Awasthi, PW-2 conducted the autopsy and found one ante-moam lacerated wound 2 V2 ‘x 2" bone deep in Mid pan'etal scalp with abnormal mobility of surroundin underlying boes and blood clots pmsent. Upon dissecu'on, he found that there was compound communitcd depressed &acture of both the parietal bones Corresponding to the lacerated wo in an area of 4 V2” x 3 Va” with subcutaneous hematoma present and extensive intracerebral haemorrhage found in both the parietal lobes. He opined that cause of death was intacerebral haemorrhage leading to shock and coma One wooden Paii was seized hum Ln on dated 03-01—2000 vide Ex.P-5 and one white Terr-icot shirt was seized mm the appellant Mahangu vi iEx.P- 12. Presence of blood on the wooden Pati was connimed by the Forensic Science Laoratory, Raipur vide Report dated 28—04-2000. One button which was found in the right palm of the deceased was seized vide Ex.P-ll. The shirt of the appellant with the missing button was also seized vide Ex.P-12. Upon examination, the Forensic Science laboratory opined vide Ex.P- 15 that the buttons were identical. After completion of investigation, the appellant was pmsecuted along with other co~accused Fagin, Suresh and Vijay i'or committing murder of Sadhram under section-302 read with section-34 of the I.P.C. be d laman hmi y ng haadh hdh an p i rt g n a und axma de b The appellant Mahangu abjured the guilt. The prosecution examined as many as 10 witnesses in the case. No evidence in defence was adduced by appellant. The tial Court relying upon the ocular testimony of Laman PW-3 and the medical evidence of Dr. Sharad Awasthi, PW-2 as also the circumstance of the seizure of the button of the shirt of the appellant Mahangu hem the body of the deceased convicted the appellant for commiil' g murder of Sadhram under section-302 of the I.P.C. and sentenced him as afoxesaid. As regards co-accused Fagnu, Suresh and Vijay, they were acquitted. 03. Shri Abhay 'l‘iwaii, leained counsel for the appellant has argued that the appellant harl no intention of causing the death of Sadhram as there was a quarrel with Murli S/o Sadhram and while the appellant to the house of Murli, the deceased intervened as a insult of which in a sudden heat of passion, the appellant who was un-armed picked up a wooden Pati and dealt a single blow on the head of Sadhram. Thus, the evidence led by the prosecution clearly showed that the act was committed by the appellant in a sudden heat of passion Without pie-meditation or deliberation. Learned counsel forthe appellant, therefom contended that the oEence committed by the appellant ‘would not travel beyond section-304 Part-II of the l.P.C. since at the most knoWledge that striking a blow on the head of Sadhram by the wooden Pati would cause the death of Sadhmm could alone be attributed to the appellant. On the other hand, learned counsel for the State has supported the judgment of the Trial Court. 04. We have heard rival contentions and also perused the record. Murlidhar PW-4 did not support the prosecution story and only stated that he saw that the appellant and 05. (O other co—accused were quarreling with Sadhram. Gautam PW-6 has narrated that he had seen that Sadhmm had fanrn to the ground and blood was oozing mm his head. Gurbari PW-7 and Pmm Sai PW-8 also did not support the pmsecution stoxy. Laxman P‘W-3 has deposed that he saw that the appellant and 3 co-accused had entexed the house of Sadhmm. The co-accused Suresh and Vijay had caught hold of his elder brother Pxem Sai. At this point of time, Mahangu came with a wooden Pati and dealt one blow on the head of Sadhram with the Wooden Pati, as a result of which Sadhram fell unconscious. So far as the single blow caused by the wooden Pati by the appellant Mahangu on Sadhmm is concerned, the testimony of this wimess has stood the test of cross-examination. It is also corroborated by the F.I.R. vide Ex.P-4 lodged promptly by this witness. It is further corroborated by the testimony of Dr. Shaxad Awasthi, PW-2 who has deposed about the external and internal injuries sustained by Sadhram and the cause of his death as narrated in paragraph-2 above. It is also established by the tesh'mony of Harihar PW-9 that one shirt was seized h'om the appellant Mahangu vide Ex.P-12 in which one button was missing and that the Police had seized one button hom the right hand of the deceased vide Ex.P—ll. Investigah'ng OEcer H.C.Gotia PW-lO has also proved the report Ex.P-lO of the Forensic Science Laboratory, Sagar which shows that both the buttons were found to be identical. In our considered opinion learned trial Court has rightly relied upon the ocular tesh’mony of Laxman PW-3 and the medical evidence of Dr. Sharad Awasthi PW-2 as well as the circumstance of seizure of the shirt worn by the appellant Mahangu with a missing button and the seizure of a button &om the right hand of the deceased and upon proper appreciation of evidence has given a nuding that the appellant Mahangu had caused the death of Sadhram by assaulting him once on the head by a wooden Pati. The only question which remains to be considered by us is that as What o$ence was committzd by the appellant Mahangu. As the evidence of Laxman PW-3 shows that the quarrel had initially begun between the appellant and Murli. The appellant had caught hold of Murli who somehow got Ieleased and ran away whereupon the appellant was quarreh'ng with Pxem Sai, the elder brother of Laman. Thus, it is clear that up to this moment the appellant was a lot agitated. In such circnmstance, the appellant who was unarmed bmught a wooden pati and dealt one single blow on the head of Sadhram and ran away. From the facts and cimumstances appearing in evidence it is clear that there was no pie-meditation or deliberation by the appellant to kill Sadhram. It was in a sudden heat of passion that the appellant suddenly picked up the wooden pati and dealt a single blow on the head of Sadhram. There was no pre- meditation or deliberation to kill Sadhram. The incident happened all of a sudden when the temper was fully amused. Therefore, in our considered op'mion the requisite intention for causing the death of Sadhram could not be attributed to the appellant in the facts and circumstances of this case. In the case of Mahcsh Vs. state of Madhya Pradash 1996 Volume-10 S.C.C. No.668 it was held by the Hon’ble Apex Court that where in a sudden quarrel after the deceased had objected to grazing of cattle, the appellant dealt a single blow with Faisa on the head of the deceased, Excepn'on-4 to section-300 of the I.P.C. is attracted and conviction under section-304 Part-l of the I.P.C. was proper. Sentence of 6 years Rigorous Imprisonment and nne of Rs.1,000/- was awarded. In case of Swamo h & Vs. sme a H am! ALRu 1995-S.C.—2542 where the appellant had dealt a single blow with hammer on the head of the deceased which is vital part of the body. It was held that the accused had lmowledge, though no inteiition, that injury was likely to cause death and therefore, the odence would squarely fall 06. under sech'on—304 Part-II of the I.P.C. Applying the law laid down by the Hon’ble Apex Court to the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that the act of the appellant falls squarely under section~304 Part-II of the I.P.C. and sentence of.rigorous imprisonment for 7 years would be suEcient to meet the ends ofjusu'ce. 07. In the result, the appeal is partly allowed. The appellant is acquitted of the charge under sech'on—302 of the l.P.C. and is instead convicted under secu‘on-304 Part-II of the l.P.C. The appellant is sentenced to rigomus imprisonment for 7 years. The appellant is in jail since 04—01-2000. Custodial sentence already undergone shall be set od‘ under section— 428 of the Cr.P.C against the sentence awaJded.