•:' ,^ •- HIGHCOURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.1336 of 1995 Jhitku versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FQR^ CONSIDERATION Sd/- R.S. Sltarma Judge Bisjil'n^. Hon'ble Shri Sunil Kumar Sinha, J.: 3 •v-e-e Sd/- Sunil Kumar Sinha Judge ~^&~ Postfor 25-09-2011 Sd/- JUD(SE~ ^2-09-2011 ~rf HIGH COURT OF CHHATTISGARH AT BILASPUR D.B,: Hon'ble^hri Justice Sunil Kumar Sinha and Hon'bie Shri Jystsce Radhe Shyam Sharma Criminal Appeat No.1336 of 1995 mm Appellant versus Respondent Jhitku, son of Bhikhari alias Shikari Dhanuhar, aged about 25 .years, resident ofAlmidand, P.S. .Pali, District Biiaspur (Madhya Pradesh) (Now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) Pj-esent: Shri Abhay Tiwarl, counsel for the appellant. Shn Ravindra Agrawal, Panel Lawyer for the State/respondent. Cnmina! ARpeai under Section 374(2) of the Code of Crimina! Procedure (Delivered on -2j\ September, 201 1) Per Radhe Shvam Sharma. J.: This appeal is directed against the judgment dated 13-9-1995 passed by 7 Additiona! Session Judge, Bilaspur in Session Trial No.59/1994. By the Impugned judgment, appellant Jhitku has been convicted under Section 302 of the tndian Penal Code and sentenced to undergo imprisonment for llfe. ~-Th ,/ Case ofthe prosecution, in brief, is as under: ^^s. On the fateful day, i.e, 31-7-1993, at about 6:30 P.M,, deceased Vishnu Jaiswal had gone to Katghora Bus Stand. He was sltting in the rickshaw of Radheshyam (PW-2). He was accompanied by one itwar Singh. The appellant, armed with a Tangi, came there and assaulted the deceased from his behind 5 wvjigj;!l> below the neck with the Tangi. At that time, Ramesh (PW-6), iajrang (PW-5), Rahim (PW-3) and Ramnath (PW-4) came there and caught the appeliant with the Tangi. The deceased was taken to hospital. When complainant Kaiyan Prasad Jaiswal (PW-1), maternal uncle of the deceased, came to know about the incident, he lodged First Information Report,.(Ex.P-1). Merg intimation (Ex- P/12) was also recorded. The deceased was sent tp Primary Health Centre, Katghora, from where he wa.s referred to Government Hospital, Biiaspur. After that he was admitted in Primary Health Centre, Katghora. The deceased died during treatment in Katghora Hospitat on 14-8-1993. The investigating officer reached to the hospital, gave notice (Ex-P/3) to Panchas and prepared inquest (Ex.P/4) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Katghora vide Ex.P/13, Post mortem examination was conducted by Dr. G.S. Kanwar (PW-14), v/ho gave his report vide Ex.P/18. He found an abrasion of 3cms x 2cms just below the right nipple and an un-healed incised wound of 3%" x 2%" x bone deep over second and third vertebra. There were fractures on second and third vertebra. Pus formation had taken place. He opined that cause of death was shock due t@ spiha! injury and severe loss of blood. . ./ -; In further investigatten, baniyan and shirt of the deceased •were seized vide Ex-P/14. Site plan (Ex-P/5) was prepared by Petwari Ram Govind Govil (PW-7). The seized articles were sent for chemica! examination to Regional Forensic Science Laboratory, Unit Bila.spurand a report (Ex.P/16) was received. In the FSL report ^,/ •K- article A tangia (axe) and article B Half-pant were found stained with ».<!!?'' After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Katghora, who, in turn, committed the case to the Court of Session, frQm where it was received on transfer by the 7 Additiona! Session Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Abhay Tiwari, learned counsel for the appeliant argued that the prosecution has failed to prove the case beyond reasondble doubt, therefore, the appellant deserves to be acquitted. 4. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer for the Stgte/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge, do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the session case. -,The conviction of the appellant under Section 302 IPC is based on t.he testlmonies, of the Radhey Shyam (PW-2), ^i*,-.. Rahim Khan (PW-3), Ramnath (PW-4) and Ramesh Kumar (PW-6), who were the eyewitnesses of the incident and whose evidence were corroborated by the medlcal evidence. 6. Radheshyam (PW-2) deposed that he, the deceased and ftwar, sitting together in his rickshaw, were talking about having tea. l*«t:Sill!: He and Itwar got down from the rickshaw. The deceased v/as sitting in the rickshaw. There was a waiting hall for passengers behind the place where they were sitting in the rickshaw. The appellant, armed with a Tangi, was sitting in the waiting hall behind the rickshaw. As soon as he.and ttwar got down from the rickshaw, the appellant assaulted the deceased behind his neck with the Tangi. The Tangi got stuck in the neck. They shouted on the appellant. The appeilant pulted out the Tangi from the neck ofthe deceased. Itwar put his hand on the injury to prevent the oozing of blood. Thereafter, they took the deceased to hospital. In cross-examination, he deposed that only one person, i.e., the appellant was standing behind them armed with the Tangi. 7. Rahim Khan (PW-3) deposed that a person, armed with the Tangi, was sitting in the waiting hall. That person assaulted the deceased on the back with the Tangi. The Tangi got stuck on the of the deceased. The decessed crled. He came to the appellant jumping the watl behind the waiting hall and caught him. Thereafter, Bajrang (PW-5), Ramesh (PW-6) and Ramnath (PW-4) also came there and caught the appellant. He further deposed that the appeliant was having the Tangi with which he had assaulted the -*ti- ' 8. Ramnath (PW-4) deposed that the appellant, who was present in the waiting hall, had assauited the deceased with the Tangi. The Tana/ blow was given on the back below the shoulder. On the cry of ffie deceased,. he, Ramesh (FW-6) and many persons ran towards !-B):<lf| a:3::^«::i the place of incident. They saw that the Tangi was stuck on the back of the deceased. Thereafter, the appellant took out the Tangi from the body of the deceased. The appellant had assaulted the deceased from behind. In cross-examination, he deposed that he was standing in front of the deceased and he had witnessed the appellant assaulting the deceased -wlth the Tangi. 9. Bajrang La! Gupta (PW-5) deposed that he went to the deceased and asked the appellant about the reason of assault. The appellant had toid him that he had inflicted less injury to the deceased. Thereafter, the appellant himself pulled out the Tangi stuck on the back of the deceased. Many persons gathered there !n the Bus Stand and caught the appellant. The deceased was immediately taken to hospital. 10. Ramesh Kumar (PW-6) deposed that at the time when the deceased was sitting in the rickshaw, the appellant was also sitting in the waiting hall just behind him. The appeltant was armed with the Tangi. He savv that the appellant assaulted the deceased with the Tangi. T'ne Tangi blow was given on the back of the deceased and the Tangi got stuck on the back 5 inches deep. He had asked the appellant about the reason of assault. The appellant had told hlm that his mental status w^~ bad. On being asked by him, the appellant had taken out the Tangi from the body of the deceased. After taking out the Tangi, the appellant had kept it with him. In cross-examinatton; he deposed that cn being asked the appellant 6 about the reason of assault, he had told him that due to his bad mental status, he had assaulted the deceased, 11. Dr. L.D Dahire (PW-9) deposed that he examined the deceased and found 1.9 x 0.5 x bone deep incised wound on the leve! of cervico-thoracic region at left to the middle region on the back of the neck. The injury was eaused by sharp object. Dr. G.S. Kanwar (PW-14), found a non-healed abrasion of 3cms x 2cms just below the right nipple and a non-healed incised wound of 3%" x 2%" x bone deep vertebra and tateral muscular cut below the back of 12. We have carefully perused the evidence of Radhey Shyam (PW-2), Rahim Khan (PW-3), Ramnath (PW-4) and Ramesh Kumar (PW-6). These witnesses have-specifically deposed that on the fateful day, the appellant had given tangis blow on the back side of the neck of the deceased. We have also perused the medical evidence. The doctor.has opined that the injuries were sufflcient to cause death. It is established that the death was homicidal in nature. Therefore, the evidence of those witnesses Radhey Shyam {PV\/-2), Rahim Khan (PW-3), Ramnath (PW-4) and Ramesh Kumar (PW-6) arejiivhoTly reliable and can be the basis for conviction of the ./ ' appellant. Therefore, we do not find any infirmity in the finding •^s- recorded by the triat Coiurt that it was the appellant who caused the injury oh the body of the deceased with tangia (axe) and the deceased died on account ofthe injury caused by the appellant. ^' •SKff^i^ 1 M 13. Shri Abhay Tiwari, learned counsel appearing on behatf ofthe appeliant has contended that the case of the appellant does not fall within the ambit of Section 302 of IPC and that the learned tria! Court has erred in law in convicting the appellant under Section 302 IPC. 14. Now, we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 ofthe Indian Penal Code. 15. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penatty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the tndian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty undei^ any part of Section 304 of the Indian PenalCode, it has ^ /; to be observed that a death must have been caused by him under v^>. any ofthe circumstances mentioned in the five Exceptions to Section 30Q of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudderi pfQvocation, while. exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an etement of knowiedge is a factor..The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 16- In the present case, the appellant gave tangia blow on the back of the neck of the deceased. He gave single blow. The deceased was refereed to Dlstrict Hospital, Bilaspur, after sometime he was admitted in Primary Health Centre, Katghora and the deceased died during treatment after 14 days of the incident. In iamaswami Vs. State of Tamil Nadu (1982) 1 SCC 474. single sickle blow was infiicted on head of the deceased and the deceased was hospitalized and subjected to surgery, but due to infection, the deceased eventualty died after 10 days. In the above circumstances, conviction was altered from one under Section 302 !PC to that under Section 304 part II of IPC. In Abdul Mannan Vs. State of.Assam (2010S 3 SCC 381, the injured persons were taken to the hospitai and the d6eeased succumbed to injuries after 14 days. !n that circumstance, the appeliant was convicted under Section304 Part II of IPC. 17'. !n the Instant case; only single tangia blow was given by the appel!ant and th.e deceased died after 14 days of the incident. In Sst-i^f' 9 these circumstances, we are of the view that in the present case the appellant would be liabte for punishment under Section So4.paA(l of IPC. 18. Accordingly, the. appeal is partly allowed. Convictionand sentence awarded to appellant Jhitku under Section 302 IPC are set aside. Instead appellant Jhitku is convicted under Section 304 Part II of the !PC and sentenced to undergo R.l. for seven years. It is stated that the appellant was arrested on 31.7.93 and he was released on bail on 19.12.2000. The appellant has already undergone more then seven years of imprisonment. He is on bail. His bait bonds are cancelled and surety stands discharged. J Sd/- - Sunil Kumar Sinha Judge iopa'/BEni Sd/- R.S. Sl«arma Judge KJ|H» / ~ 'ns.