HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J.q 1 Criminal Appeal No. 1114 of 1993 Nanhiram Vs. Staté of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT 7\_7 FO Sd— ' Sunll Kumar Smha Judge W /}/08 /2010 HON BLE SHRI JUSTICE RAJEEV GUPTA a Sd/- CHlef Just1ce ‘A Q g) /08/201o Post for Judgment {é /08/2010 Sd/— r 1 i SunliKumaSmha Judge _ [)IUWZU’TOV / W / / / 1 € ‘ l HIGH COURT OF CHHATTISGARH, BILASPUR ] X CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Agpeal No'. 1114 of 1993 APPELLANT Nanhiram S/o Sukhiram Yadav, Age l i i RESPpNDENT 1 (Criminal AQQeaI under Section 374 (2) of The Code of Criminal Proced u re, 1973) u: i r i i l i r § i i i i d 35 years, Occupation- Cycle Store, R/o Village- Sithra, P.S. Dharamjaigarh, District Raigarh Versus S{ate of Madhya Pradesh (Now State of Chhattisgarh) Through S.H.O., P.S. Dharamjaigarh, District Raigar "e k ‘ Appearance: } Mr. A.N. Bhakta, Advocate forthe appellant. Mr. J.A. Lohani, Panel Lawyer for the State. ,JUDGMENT (16 .08.2o1o) l Following judgment of the Court was delivered by Suriii Kumar Sinha, J. Appellant— Nanhiram stands convicted u/s 302"IPC and sentenced to undergo imprisonment for life, by the Second Additional Sessions Judge, Raigarh in Sessions Trial No. 140/92 on 28th of May, 1993. () 1 _The facts; briefly stated, are as under:- (2) j On 16.5.92 at about 1.00 p.m., deceased- Bhartiram got down from a bus in Sithra bus—stand. He was holding a bag full of eggs. Appellant has a small bicycle-shop in the bus-stand. He saw the deceased with eggs. He demanded one egg from th h aVk e 2 Criminal Aggeal No. 1114 of 1993 deceased. ‘The deceased denied to give him egg, on which, ‘ appellant staded quarrelli‘ng with him and thereafter he threw the deceased on the ground and pressed his neck and chest. The deceased received many injuries and died on the spot. “The matter i was reported to the poiice station by Chowkidar— Thakur Das (PW- 1), on which, merg intimation (Ex.—P/2) and the First Information Report (EX.—P/1) were recorded. The investigating Officer reached to the piace of occurrence, gave notice (Ex.—P/5) to the Panchas and prepared inquest (EX.-P/6) on the body of the deceased. The dead body was sent for its post-mortem examination to Civil “Hospital Dharamjaiga’rh by requisition Ex.-P/7. The post-mortem examination was conducted by Dr. P.N. Bowalkar (PW-8) who prepared his report EX.-P/8. He observed that the deceased was aged about‘50 years; mouth‘was open; blood Was oozing out from nostrils and‘right ear; entire face has become bluish black; there was Iacerated wound of 1 inch x 1 inch on the skull; there were many abrasions on the neck having size of 1A inch x 1/2 inch; tongue has protruded out side having yellowish colour; all the above ‘ injuries were ante—mortem. On internal examination, he found that brain membrane was congested and blood vessels of the brain were ruptured. Blackish blood clot was present in the wind-pipe. Blood vessels of the neck were ruptured and there was fracture in cricoid cartilage. There was also fracture in jaws. On account of fracture of mandible and rupture of blood vessels, huge amount of blood was present in right ear, right inner pprtion of cheek and wind—pipe. The Autopsy Surgeon opined that the deceased died due to cardio respiratory failure as a result of excessive intra cranial haemorrhage and shock and it was homicidal in nature. The case of the prosecution was based on eye-witness account of G Pyariiai (PW-2), Mantriram4PW—3), Brijram (PW—4) and Devmati Bai (PW- 9). Out of 4 eye—witn’ess’es, Pyariiai (PW-2) and Brijram (PW-4) turned hostile. The learned Sessions Judge reiied on the testimonies of N\ 3 Criminal Appeal N0. 1114 of 1993 ua Mantriram (PW—3) & Devmati Bai (PW-9) and convicted and sentenced the appellant as aforementioned. 1 (4) Mr. A.N. Bhakta, teamed counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has l also not disputed the involvement of the appellant. He only argued that if the manner in which the quarrel took place for a petty reason i.e. on account of denial of giving one egg and further that the appellant never used any weapon etc, the act of the appellant would not be punishable u/s 302 IPC and he may be liable for punishment under some lesser Section p‘referably Part-ll of Section 304 IPC. His submission was that the appellant was arrested on' 17.5.92, he was throughout in jail and was directed to be released on bail on 21.1.2003, as such, he has already gone for a period of more than 10 years, therefore, he may be sentenced to the period already undergone. (5) 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 case. a (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) So far as involvement of the appellant in’crime in question is concerned, that,cannot be denied. lt has been established by the evidence of Mantriram (PW-3) and Devmati Bai (PW-9) that the appellant assaulted the deceased in bus-stand. Mantriram deposed that when the appellant demanded an egg from the deceased, the deceased denied. i \\)‘) l 4 Criminal Amgeal N0. 1 1 14 of 1993 The appellant, thereafter assaulted the deceased on his cheek and then he pessed his neck and threw him on the ground and he also assaulted him n his chest by fist and he dragged him from ro to his the/a (smll-shop). The deceased died instantaneously. Even the appeant himself tried to gve water to the deceased but the deceased did not ake r water as he was already dead. The evidence of Mantriram (PW-3) is supprted by the eviden of'Devmati Bai (PW-). lt is further corrborated by the contents of the F.l.R. (Ex.-P/1) and the postmortem r‘t‘(éx.—s). Therefore, it was fully established that'the deceased died on count of aault given byvthe appellant. a‘c ss a (8) Mr. A.N. hta has prayed for sentencing e appellant us 304 preferably Prt—II IPC. a (9) Section 304 IPC provides the punishment fo culpable homicide not amunting to murder. it draws distinction between the penalt to be inflicted in cases, where, an intenti to kill being presnt, the act would have amounted to murder, but for its having fallen witn one of the Exceptions in Section 300. and cases in which the crime is culpable hoicide not amounting to urder, that means, wherethere is knowledge that death will be a likely result, but th intention to cuse death, or bodily injury likely t cause death, is absent. The first part of Section 30 applies where there is intention, whereas the secon part. applies where there is knoWledge but the important thing is that before holding the accused t‘guilty Under any part of section 304, it has to be observed that a death must have been caused by 'him under any of the circumstances ' mentioned in the five Exceptions to Section 300, which include death f b ad a il j i t i i o ce 9 o - eporP/ Bak th / r o a y on e hi m m e a o 4 d 5 Criminal Apggal No. 1114 of 1993 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 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 3041, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. To invoke Exception 4 to section 300, four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii)the act was done in a i heat of passion; ,and (iv) the assailant had not taken any undue advantage 'or acted in a cruel manner. Therefore, what is important is that the‘occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger and he must not have taken any undue advantage or acted in a cruel manner. ‘ (10) In the present case, though a quarrel took place on a petty matter and it was a sudden fight without premeditation, it may be said to have occurred on account of heat of passion but the nature and number of injuries sustained by the deceased would show thatJt was not a case in which the appellant had not taken any undue advantage or had not acted in a cruel manner. We note that there were fractures in the neck and ' mandible which shows that sufficient pressure was applied by the appellant on the neck ofthe deceased and he did not leave the neck till his death, which was instantaneous. Has there been a case in which the deceased would have died aftersometime, then only, a different > inference would have drawn for the act of the appellant, but in the present C7 \ i / 6 Criminal Appeal No. 1114 of 1993 case, it is not posSible looking to the number and nature of injuries sustained by the deceased. We are of the considered view that the present case would not fall within the Exception of Section 300 IPC and punishment awarded to the appellant u/s 302 IPC was fully justified. (11) ‘ For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the appellant is liable to be dismissed and is hereby dismissed. As stated above; the appellant is on bail, he is directed to surrender immediately to’serve the remaining sentence awarded to vatti / ’ ._ him} ,l a sd/I’ _ sou. ’ , a ChiefJustice Sun" 51:21:; Sinha