2-°|.^// HIGH COURTOF CHHATTISGARH, BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. CRIMINALAPPEAL N0.733/2010 Jagatram Vs. The State ofChhattisgarh JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA J , Forconsideration "Sd/- Sunil Kumar Sinha Judge Z^/03/2011 Sd/- ChiefJustice ^~) /03/26-Tf Post for Judgmen^^^/03/2011 Sd/- Sunil Kumar Sinha ^ /03/2011 sai ;^^ I^^ES^SS^ HIGH COURTOF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J. n ^V! ll.'< APPELLANT CRIMINAL APPEAL N0.733/2010 Jagatram S/o Hagruram Dhadwa, Age 30 years, Occupation - Majduh, R/o Gram Bhelwapdarpara Kondagaon, Thana Kondagaon, District Bastar (C.G.) RESPONDENT Versus The State of Chhattisgarh through Aarakshi Kendra, Kondagaon, District Bastar CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE .f Appearance: . Mr. A.P. Sharma, Counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer for the State. . JUDGMENT (2-3.03.2011) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) The appellant stands convicted under Section 302 IPC and sentenced to undergo R.l. for life by the Additional Sessions Judge, Bastar at Jagdalpur in S.T. No. 18/04. Deceased - Babita was the wife of the appellant. On 24.09.2003, at about 9:45 am, she was washing clothes in the bathroom. The appellant came in drunken condition. On account of (2) The facts, briefly stated, are as under: yc"'% ^ S %s^ ' t I. t, "'t '^. 'ysi^f' "•'•Ss--ISSSt ^ CRIMINAL APPEAL N0.733/2010 consuming liquor, some hot exchanges took place between the appellant and the deceased. The appellant started abusing the deceased. The deceased tried to stop the appellant, on which, the appellant got enraged and assaulted the deceased by spade. The incident was witnessed by Ku. Rupa, daughter of the deceased (PW-4).The deceased received multiple injuries. She was admitted in the hospital. The matter was reported by Dr. S.K. Kanwar (PW-1) to the concerned Police Station vide Ex.P/1. The deceased was medically examined by Dr.Ravi Awasthi (PW-2). He found two hematomas and two lacerated wounds on the skull of the deceased. He also noticed that several teethes were dislocated. The deceased died during the course of her treatment on the same day at about 1:15 p.m. A merg intimation (Ex.P/7) was lodged by the Hospital authorities. The Investigating Officer reached to the hospital, gave notice (Ex.-P/S) to the Panchas and prepared inquest (Ex.P/9) on the body of the deceased. The dead body of the deceased was sent for postmortem. The postmortem examination was conducted by Dr. Ravi Awasthi (PW-2). He opined fhat thecause of death was cardio respiratory arrest due to shock and haemorrhage on account of the above injuries. The death was homicidal in nature. The postmortem report is Ex.P/4. (3) Mr. A.P. Sharma, learned counsel for the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant. He has argued that the facts and circumstances would show that the appellant was having no intention to commit murder of the deceased; the appellant in grave and sudden provocation assaulted the deceased by spade; he used blunt side of the f ' _ / *'/... spade; there were no fractures beneath the injuries sustained by the deceased; and the Doctor did not opine that the injuries sustained by the deceased were sufficient to cause death in ordinary course of nature. His isubmission was that in the facts and circumstances of the case, an €a@fc. 8 ^ •: °<««l"3,it''"" fe CRIMINAL APPEAL N0.733/2010 offence under Section 302 IPC would not be made out and the appellant would be liable for punishment under some lesser Section preferably Section 304 Part-11 IPC. (4) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard tearned counsel for the parties at length and have also perused the records of the Sessions Case. (6) Section 304 does not constitute an offence. It provides the punishment for culpable homicjde not amounting to murder. It draws a distinction between the penalty 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, 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 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 under any part of Section 304, it has to be obsen/ed that a death must have been caused by him under any of the circumstances meationed in the five Exceptions to Sectipn. 300, which include death caused while deprived of power of self-control under grave and sudden provocation, 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 '"...te?Ei""' .a»hKSVS»!lh: ^sVSS^ • ? ^•n-it-./. ...^•w:/'- ^ CRIMINAL APPEAL N0.733/2010 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, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. (7) Ku. Rupa (PW-4) is the daughter of the appellant. She deposed that at the relevant time, her mother (deceased) was washing clothes. Her father (appellant) was cleaning grass by spade. Her father assaulted her mother by spade on some talk regarding drinking of liquor by her father. Thereafter, her mother was taken to the hospital, where she died. There is no infirmity in the evidence of Ku. Rupa (PW-4). There is no reason as to why she will speak against her own father. On due appreciation of her evidence, it appears that when the appellant was cleaning-girass by spade, some quarrel took place between the appellant and the deceasedon account of drinking liquor by the appellant, and the appellant got enraged and assaulted the deceased by spade, by which, he was cleaning the grass. (8) On perusal of the evidence of Dr. Ravi Awasthj (PW-2), Autopsy Surgeon, we find that there were no fractures beneath the injuries sustained by the deceased on her skull. He has not deposed that the injuries sustained by the deceased were sufficient to cause death in ordinary course of nature. The appellant had used blunt side of the spade. Had the appellant an intention to commit murder ofthe deceased, he would have used sharp portion of the spade. Since no fractures were there beneath the injuries sustained on the skull, we gather that the appellant, while causing those injuries, did not use much force. There is s'::". B CRIMINAL APPEAL N0.733/2010 also no evidence of preparation or premeditation of the appellant as he was busy in cleaning grass by the spade, and he assaulted the deceased on a quarrel, which the deceased begun on account of consumption of liquor by the appellant. (9) In the above facts and circumstances of the case, we are of the view that an offence under Section 302 IPC would not be made out, and the appellant would be liable for punishment under some lesser Section which would be Part 1 ofSection 304 IPC. (10) For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. Instead thereof, he is convicted under Section 304 Part-1 IPC and sentenced to undergo R.l. for 10 years. The appellant is in jail since 25.09.2QD3 till today. He shall be entitled to set-off the period already undergbne by him. SdA ChiefJustice 'CHIEF JUSTICE ^ Sd/- Sunil Kumar Sinha Judge fJUDGE shyna