^ •.••^¥h ij^.*^" ''""-^ »-ilz:E^-ss!;S^o'< "'!s:";sy HIGH COURT OF CHHATTISGARH. BILASPUR CQRAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 716 of 1994 Hariram Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration _-/L Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^1 o-^y^^^- Sd/- ChiefJustice --\^" 'Oi. Post for Judgment :2^>/02/2011 Sd/- Sunil Kumar Sinha Judge "^ •Hl: i-'ll l.-»:.T i&1— 1^'. .i^}^^-^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. w APPELLANT RESPONDENT Criminal Appeal No. 716 of 1994 •» Hariram, s/o Shri Champatlal Patel, aged about 28 years, occupation - cultivation, t/o village - Baghanpur, Police Station - Raigarh, Tahsil & District Raigarh, M.P. ( Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh), (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 19731 Appearance: Mrs. Hamida Siddiqui, Advocate for the appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (23.02.2011) Following judgment of the Court was delivered by SunilKumar Sinha. J. <1) This appeal is directed against the judgment dated 8 of July 1994passed in Sessions Trie^No. 169/93 by the Second Additional SessionsJQdge, Raigarh. Bythe impugnedjudgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment fo'r life. E":T?!SBS^^?^^^fe ^^^^^^l^^^fi^fei< Criminal Anoeal No. 716 of 1994 (2) The facts, briefly stated, are as under:- On 2.11.92, wife of the appellant and wife of the deceased had gone for bath and washing cloths in a na/a. A quarrel took place between them. When wife of the appellant was returning to her house.she found deceased- Teklal and Babulal on the wa/. Seeing them she started shouting on them. Hot exchanges took place between them also. Wife of the appellant went to her house and called her husband (appellant). The allegations are that the appellant and his father- Champatlal caught the deceased and the appellant gave single blow to the deceased by kalari (a wooden agriculture equipment fitted with a sickle shaped iron end). The further allegations are that the other accused persons also assaulted him. Deceased- Teklal was brought to the police station. He was unconscious. Thereport was lodged by Salikram (PW-1). Teklal died in the hospital during the course of his treatment. Teklal (since deceased) was examined by Dr. R.K. Masta (PW-5), who noticed an incised wound of 1 inch x % inch brain deep on his right parietal region. Dr. Jayant Shrivastava (PW-9),who conducted the autopsy,also found the said injury which has affected the brain matter. He noticed that there was fracture on parietal bone and there was laceration in the brain. The post-mortem repori: is Ex.-P/9-A. h4e opined that the cause of death was,-comaand shock due to lacerated 'injury to the brain causing cerebral haemorrhage. In further investigation,-appellant- Hariram was also sent for his medicat exarmn^tion. He was also examined by Dr. R.K. Masta (PW- 5). Dr. Masta noticed 6ne lacerated wound of 1 inch x 14 inch ', on fhe left parietal region ofthe appellant. His injury report is Ex.-DM. . Criminal Appeal No. 716 of 1994 '^ (3) The case of the prosecution was based on eye-witness account of Salikram (PW-1), Panchram (PW-2) and Bupdeo Singh (PW-3). (4) The learned Sessions Judge, on due appreciation of the evidence led before it, held the appellant guilty of the offence punishable u/s 302 IPC. However. the 3 other accused persons namely Champatlal (father of the appellant), Leela Bai (wife of the appellant) and Santi Bai (sister of the appellant) were acquitted of the charges framed u/s 302/34 IPC. ttMliKh (5) Mrs. Hamida Siddiqui,.[earned counselappearing on behalf of the appellant, argued^that the.involvement ofthe appellant was not proved. In alternative, she argued that it was a case of sudden quarrel, without preparation and premeditation, therefore, it was not a case u/s 302 IPC and in the facts and circumstances of the case, the appellant would be liable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (6) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these ./ arguments'and supportedthe judgment passed by the Sessions Couri:. -«»- (7) We have Heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. 4 Crimmal Appeal No. 716 of 1994 (8) We have gone through the evidence of Salikram (PW-1), Panchram (PW-2) and Bhupdeo Singh (PW-3). They have clearly stated that a quarrel took place between the deceased and the family members of the appfellant in which the appellant gave a kalari blow on the skull of the dfeceased. We are of the view that on the evidence of the above eye-witnesses, it was established that the deceased was assaulted by the appellant by kalari who received an injury on his parietal region and succumbed tothe injury. (9) Now we shall consider the second argument advanced by Mrs. Siddiqui. (10) The evidence of the above witnesses would show that the appellant and his family members reached to the place of occurrence and they started quarreling with the deceased. Admittedly all the accused persons including the appellant were unarmed. Salikram (PW-1) clearly deposed that "when the family members of the appellant met with deceased- Teklal, a quarrel begun between them and in that quarrel, the appellant picked up the kalap., which was lying there, and gave single blow to the deceased". Thpre Was no prior enmity between them. The appellant . / had also received injury in Vne same transaction, though it comes «B- that the sajd injury was caused to him by Salikram (PW-1), but it was also a part of quarrel between the family members of the appellantand thefamily members ofthe deceased. Section 304 IPC :^^ ^ Criminal Appeal No. 716 of 1994 provides the punishment for culpable homicide 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 304applies 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 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 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 indoing 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 s^>. whereas fpr attracting the. later part, an element of knowledge is a factor. Criminal Auoeal No. 716 of 1994 If (11) Ifwe appiy theabove principles in the facts and circumstances of the present case, certainly the case of the appellant would fall under Exception 4 of S. 300 IPC and the appellant would be liable for punishment u/s 304 Part-11 IPC because the act was committed without premeditation in a Sudden fight in the heat of passion upon a sudden quarrel without any intention and the appellant had also not taken any undue advantage OF acted in a cruel or unusual manner. But the act ofthe appellant attributes his knowledge that it islikely to cause death or to cause such bodily injury as is likely to cause death. (12) Mrs. Siddiqui has also argued that since the appellant had also received injury on his head, therefore, he was having right of private defence of his body. The above argument of Mrs. Siddiqui cannot be accepted in view of the provisions of Section 100 IPC which clearly provides that the right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions mentioned in this section. This makes clear that the/right of private defence of the body accrues against the assailant that means the person who in fact inflicted injury to the person to whom such right has accrued. In the present case, it is writ large on record that Salikram (PW-1) had inflicted the injury to the sippellant Therefore, ifany such right would accrue in favour of ^ Criminal Auoeal No. 716 of 1994 the appellant that would be against Salikram and not against the deeeased whom the appellant gave a kalari blow. (13) For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead, the appellant is convicted u/s 304 Part-11 IPC and is sentenced to undergo rigorous impnsonment for 5 years. The period already undergone shall be adjusted in the above sentence awarded to the appellant. Sd/- CfaiefJustice Sd/- Sunil Kumar Sinha Judge vatti '«R- '^.'