HIGH COURT OF OHHARTHSGARH AT BILASPUR Coram:- ‘ Hon’ble Shri Dhirendrp Mishra 8: Hon’bk; smaN. ¢héndrékgn .u Crimiiial Appeal No.332t2 "‘ Annellant ‘ Chandra Mohan aiias Bhulku, S/o (Injai!) Harun, CasteMahara, aged 41 years, Occupation Mazduri, Rlo Village Jarigudapara, Markel, P.S. Nagarnar, Dist. Bastar (CG) Versus Respahdent State of Chhattisgarh Nagarnar, Disti. Bastar (CG) $Criminal anneal under Section 374 (2! of Cr.P.c Through Staticn House Officer, P.S. The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of eonviction and order of sentence dated 20.01.2003 passed in sessions trial No.379l2002, whereby learned Sessions Judge, Bastar at Jagdalpur has convicted the appellant under Section 302 of IPC and sentenced him to undergo life imprisonment for causing homicidal death of Ronu. (2) The case of the prosecution, in brief, ls that from 7 to 10 days back before the date of incident ire. 26.07.2002, the deceased had demanded money from the appellant and there was quarrel between them. On 26.072002 at about 4.00 pm. when the deceased was retumlng to his hane with his uncle namely Ramprasad (PW-1), the appellant met them on the way and assaulted the deceased Ronu by club on his head at temporal region as a result of which, the deceased became unconscious. The incident was witnessed by Mangalram and Sonsai (PW—4). The report of the incident was lodged by Ramprasad (PW-1)}on the basis of which FIR. vide EXP-1 and ’\ Present: Shri Suryakant Mishra, counsel for the appellant Shri Ashish Shukla, Govt. ‘ Advdcate 'for the State/respondent. OralOrder (Passed on 21 5‘ of October, 2009) Per Hon’ble Shri Dhirendta Misha”; merg intimation vide EXP—2 were registered. Aiier registéring the crime, Police proceeded for the scene of occurrence. Inquest over the dead body of the deceased was prepared vide EXP-13 in presence of witnesses. Dead body was sent for autopsy to Primary Heaith Centre, Nagarnar, where Dr. Sujif Vishwas (PW-6) conducted post mortem and gave his report vide Ex. Pr! 4-A. Spot map was prepared by tpe investigating Ofttcer vide Ex. P-‘i O. Oh the basis of disclosure statement of EXP-3 of the appellant, weapon of u f offence Le. club of the cart was taken into possession vide EXP-4. The appellant had also sustained injuries in the same incident. He was sent for medical examination‘to Primary Health Centre vide EXP-15 where Dr. Sujit Viswas (PW-6) examined him and gave his medico legal examination report vide Ex.P/‘l5-A. The articles seized during the investigation were sent for chemical examination to Forensic Science Laboratory, Raipur vide EXP-23 and a report thereof is EXP—24. in which it is stated that Gamcha and Baniyan of the deceased were stained with blood. However, the report with respect to the other articles was negative. s (3) Ai’ter completing usual investigation, charge sheet was tiled ln the Court of Chief Judicial Magistrate, Jagdalpur, who in turn committed the case to the Court of Sessions Judge for trial. Leamed Sessions Judge framed charge under Section 302 of the IPC against the appellant for causing homicidal death of Ronu! S/o Sonu Mehra. who abjured his guilt. The prosecution in order to establish the case against the appellant examined 8 witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and pleaded that he did not murder Ronu. There was quarrel between Ramprasad (PNV—1), Butiram (PW-2) and Ronu. Ronu assaulted Butiram (PW-2) with knife before the incident and he was prosecuted under Section 307 of IPC. However, he has been faisety implicated in the aforesaid case. \ ¢$ t (4)} Learned Sessions Judge after hearmg counsel for the respective parties, convicted and sentenced the appenant as mentioned in paragraph-1 of tne judgment. (5)1 Homicidal death of the deceased Ronu is not in dispute. Even othjerwise, from the evidence of Ramprasad (PW-1L who is the eye witness of the incident and who lodged the report against the appellant as also from the evidence of Dr. Sujit Vishwas (PW-6), who conducted post mortem over the dead body of Ronu and found following injuries and opined that the cause of death of Ronu‘was coma due to head injury leadingtto extra cerebral and intra cetebrai haemgrrhage and homicidal in nature, homicidal death of Ronu is established:- (i) One lacerated wound on the right side of‘temporal region of scalp behind the ear of size 4 x 2 x 1 4cm. (ii) On internal examination, it was found that putrefaction of the dead body had commenced (iii) Blood clot was present in the inner side of the brain. The ciotting was because of the external injury. LA portion of the brain was semi solid. (iv) Linear fracture was found in the right temporal region. it was caused by hard and blunt object. (6) Learned trial Court relying upon the evidence of Ram Prasad (PNV-1) convicted the appellant. (7) Learned counsel for the appellant submits that from the evidence of Dr. Sujit Vishwas (PW-6), it is evident that the appellant gave only a single blow of club on the temporal region of the deceased. From the evidence of Dr. Sujit Vishwas (PNV-6), it is also evident that the appellant himself sustained injuries in the same incident and he was also referred to Govt. Hospital for medical examination as he had got swelling on the middle of left \ Q“ mWer limb below knee of size 5 x6 cms and abrasion on the dorsum cf left foot size 3 x 3 cms‘ Though the injuries were simple in nature but the same were caused by hard: bm’nt and also rough object. Learned counsel for the aopellant fairly submits that he is not disputing the hnding of the trial Court based on the evidence of Ram Prasad (PlNo) that fatal injury’was caused by the appellant However, he argued that the incident occurred in a spur of movement without ore-meditation as a result of sudden provooation, when the u appellant f was beaten by the deceased, he snatched the club from the children: who were playing nearby and gave a singlei'biow on the temporal region iof the deceased In these circumstances, intention and knowledge of causing death of Ronu cannot be attributed to the appellant and the offence does not travel beyond Section 304 (ll) of the IPC. (8) On the other hand: Shri Ashish Shukla, Govt. Advocate for the State argued in support of the impugned judgment. (9) We have heard learned counsel for the parties and perused the impugned judgment. Ram Prasad (PW—1) has lodged the F.l.R. vide EXP-1 and has proved the same in his evidence. He has deposed that the deceased resides in his neighbourhood. He died as a result of injury caused by the appellant some three months back. The incident is of 4.00 pm. The appellant gave one blow by club over the temporal region of the deceased with full force. The deceased feil on the ground. The incident occurred in front of the house of Bhagatram (PW-8) on the road. He was returning with the deceased at the time of incident when the appellant-Chandra Mohan ali of a sudden appeared and started quarreiling with the deceased Ronu. The appellant had borrowed Rs.50l— from the deceased Ronu. The deceased 'Ronu asked him to retum the same. However, he did not retum the money and threatened that he would murder him and thereafter he snatched the club from the children who were playing there and assaulted Ronu on his head. He also chased him. Only half—an-hour after the incident, the deceased died \ \\\ e‘ r in ah unconsdous condition. In the cross-examination, he has denied the suggestion that he lodged the report on the next day and he has admitted that:the deceased was also prosecuted for the offence under Section 302 of IPC.j He has further denied the suggestion that he and Ronu assautted the appeiiant. Butiram (PW-2) is witness of memorandum (EXP-3) and seizure of the weapon i.e. club vide Ex.P—4. Sonsai (PW-4) has been examined as eye witness. However, he has not supported the case of the prosecution and has turned hostile Dayamani (PW-7), wife of the deceased has deposed that Ram Prasad (PW-1.) came to her home and informed her that Ronu and the appellantiwhile quarrelling, slapped each other. Ronu sustained injury on his right temporal regiontand blood was oozing from the wound. Ronu was unconscious when she saw him. However, he 'died on the next day of the incident. The appellant and the deceased quarreled on account of some dispute relating to transaction of Rs.50/—. Bhagat Ram (PW-8) has also been examined as eye witness. However, he has also not supported the case of the prosecution and tumed hostile. ln his cross-examination also, the prosecution could not elicit any incriminating evidence against the appellant. v (10) Thus, from the evidence of Ram Prasad (PW-1), which is also corroborated from the post mortem report proved by Dr. Sujit Vishwas (PW6) and F.l.R. involvement of the appellant in causing iniurv to the deceased is established. (11) The question for our consideration is whether the trial Court was justified in convicting the apellant under Section 302 of IPC? p (1 2) lt is not in dispute that there was a quarrel between the appellant and the deceased at the time of the incident. The above fact is evident from the evidence of Dayamani (PW—7) as also from the memo of EXP-15 whereby, the Police sent the appellant for medical examination of his iniuries which he sustained in the same incident. Dr, Sujit Vishwas (PW-6) has found two injuries over the person of the appellant also. From the evidence of Ram Prasad (PW—1), it is also established that the appellant gave only a single blow on the head of the deceased The appellant was unarmed, he snatched the club from the children playing nearby and assaulted the deceased on his head. (1 3) Thus, from the overall evidence available on record, it is evident that the incident occurred as the appellant and the deceased were engaged in som‘e'iquarrel and in the said quarrel, he also sustained some injuries and only under heat of passion without pre-meditation, as a result of sudden s provocation he gave a single blow to the deceased on his head. From the evidence available on record: it is also established that the deceased died on 27.07.2002 at 8‘00 am. On overall appreciation of the‘evidence available from the record, we are of the opinion that the offence alleged against the appellant does not travel beyond Section 304 part—ll of IPC. intention cannot be attributed to the appellant in the facts and circumstances of the case though he may have knowledge that the injury which is being caused to the deceased may cause the death and the trial Court was not justified in convicting the appellant under Section 302 of IPC. (1 4) ln the result, the appeal preferred by the appellant Chandra Mohan @ Bhulku is partly allowed. His conviction under Section 302 of the IPC and sentence to life imprisonment is set aside and instead, the appellant is- convicted under Section 304 part-ll of IPC and the appellant is sentenced to undergo R.l. for 7 years. It is stated that the appellant is in custody from 27.07.2002 and as such has already completed 7 years of the jail sentence imposed on him. (15) In view of the above, it is directed that the appellant be set at liberty r forthwith, if not required in any other case. \\ Sd/- ‘ r l;:::l *’ ” ’ sal- DmRENDRA MJsnnAl i Knotrandrakar Judge t Judge