HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. Criminal Appeal No. 31M2004 Sukko Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA -^^- Sd/- OriefJustice Y Postfor Jydgment : ^/03/201 Sd/- Judge ^J /03/2011 B[i:;~ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J, APPELLANT CRIMINAL APPEAL N0.31 of 2004 Sukko S/o Budha Ghurwa, aged 40 years, occupation - Agriculture, "resident of village Bodaraspara, Thana Kukaner, District South Bastar Dantewada'(C.G.) RESPONDENT Versus State of Chhattisgarh, Through P.S. Kukanar, District South Bastar Dantewada (C.G.) CRIWIINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Ms. Minu Banerjee, Counsel for the appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (24.03.2011) Following judgment of the Sunil Kumar Sinha. J. Court was delivered by (1) This appeal is directed against the judgment dated 6 of September 2003 passed in S.T. No.199/2003 by the Sessions Judge, Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo R.l. for life. (2) The facts, briefly stated, are as under: On 18.04.2003, at about 5:00 p.m., appellant- Sukko was collecting "Chapda" (a gelatinous substance which oozes out from the bark of the tree) from a mango tree. In fact, he had climbed on the tree and was removing Chapda from the upper branches of the tree. Deceased Inder came near the tree and started abusing the \. .>^ ;'j „/'' ^. .^' CRIMINAL APPEAL N0.31 of 2004 appellant. On this, the appellant requested him not to do so, but the deceased did not stop and continued to abuse the appellant. The deceased said to the appellant that he will not allow him to collect Tendu leaves and abused him by using filthy language. The allegations are that thereafter, the appellant got down from the tree and picked Tangia of the deceased and assaulted him by Tangia. The deceased received injuries on the head and succumbed to those injuries. The incident was witnesSed by Kosa (PW-2) and Birsingh (PW-6). The matter was reported to the concerned Police Station, merg intimation (Ex.P/1) was lodged and First Information Repori: (Ex.P/2) was registered. The Investigating Officer reached to the place of occurrenceand gavenotice (Ex.P/3) to the Panchas and prepared inquest (Ex.P/4) on the body of the deceased. The dead body of the deceased was sent for postmortem to Community Health Centre, Chhindgarh vide Memo-Ex.P/11-A. The postmortem examination was conducted by Dr.R.K.Nachankar (PW-8). He noticed 4 lacerated wounds on the skull, mandible and cheek of the deceased. He also noticed fracture on skull beneath the lacerated wounds. The Autopsy Surgeon opined that the injuries were caused by hard and blunt object; the cause of death was injuries to the skull and brain and it was homicidal in nature. The Postmortem Report is Ex.P/11. The conviction ofthe appellant was based on the testimonies of eye-witnesses namely Kosa (PW- 2) and Birsingh (PW-6). It was also based on the extra judicial confession made by the appellant in Panchayat in presence of Sukhram (PW-1) and Somaram (PW-7). (3) Ms. Minu Banerjee, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death ofthe deceased. She has also not disputed the involvement of the appellant in the incident. She argued that at the time of the incident, the appellant was on a mango tree; the deceased came there and started abusing the appellant; the deceased was in drunken condition; after request of the appellant he did not stop and continued to do so; even the deceased abused the wife of ^ "w^. ..JP'^'.T ffp F T •ar-'" CRIMINAL APPEAL N0.31 of 2004 the appellant. It is on all this; the appellant got down from the tree and assaylted the deceased. Her submission was that in the facts and circumstances of the case, an offence under Section 302 IPC would not be made out and the appellant would be liable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (4) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (6) Kosa (PW-2) deposed that the appellant had assaulted the deceased by Tangia. His dead body was lying under the tree. Birsingh (PW-6) was also present at the time of the incident. In cross- examination, he admitted that the deceased came under the tree and said to the appellant that "the wife of the appellant is a thief and even after that, the appellant has kept her as his wife." He admitted that the deceasedwas in heavy drunken condition and he was quarreling with the appellant. He also admitted that when the deceased used such words against the wife of the appellant, the appellant asked "who is he to say like that against his wife?". He further admitted that after all this, the appellant got down from the tree and when he came on the ground, the deceased started abusing him by shouting with more force and then only, the appellant assaulted the deceased by Tangia. He admitted in cross- examination that in fact, the deceased himself came to quarrel with the appellant where the appellant was removing Chadpa from the mango tree. Birsingh (PW-6) was a child witness. He was aged about 8 years. <-v ^•""^ '^ CRIMINAL APPEAL N0.31 of 2004 He also deposed that the deceased was assaulted by the appellant. He admitted in cross-examination that when the appellant was removing Chapda from the mango tree, the deceased came there in drunken condition and said that "the wife of the appellant is a thief." He admitted that thereafter, the deceased started further quarrel with the appellant and the appellant said the deceased not to.use filthy language. The appellant also said that "he is abusing him and he is also abusing his wife." Even the deceased tried to assault the appellant. After all this, the appellant assaulted the deceased by Tangia. (7) Ms Minu Banerjee has referred to the said evidence ofthe above eye-witnesses and has argued that it was not a case under Section 302 IPC and it was a case in which the appellant assaulted the deceased on grave and sudden provocation, therefore, he would be liable for punishment under Section 304 IPC. (8) Section 304 does not constitute an offence. It 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 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 observed that a death must have been caused '••^ A 1 '';?S,*^;r,.^' CRIMINAL APPEAL N0.31 of 2004 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 in doing an acl is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, anelement of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. (9) Mr. Bhaduri has argued that in the instant case the deceased had received 4 injuries, therefore, the case would not fall under any Exception to Section 300 IPC. 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 heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. Therefore, even otherwise also, the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of angerand he must not have taken any undue advantage or acted in a cruel manner. (10) On the evidence of the two eye-witnesses Kosa (PW-2) and Birsingh (PW-6), it would appear that the appellant was collecting Chapda and he was on the mango tree at the time of the incident and the deceased came there in drunken condition. This shows that there was no ^preparation and premeditation of the appellant to commit murder of the 'Ci! /' ./ CRIM!NALAPPEALNO,31 of 2004 ?^ deceased. It appears that when the deceased used filthy language against the appellant and his wife, the appellant got down from the tree and tried to stop the deceased, but the deceased did not stop and continued to abuse the appellant and his wife by shouting on the appellant and quarreling with him, and in heat of passion, the appellant picked up Tangia and assaulted the deceased by Tangia. We note that the appellant did not use the sharp portion of the Tangia. Had there been an intention to commit murder of the deceased, the appellant would have used its sharp portion, which he did not do. On the above evidence, it is clear that in a sudden fight, the incident took place on the said background. In the above facts and circumstances of the case, an offence under Section 302 IPC would not be made out and the appellant would be liable for punishment under Section 304 Part-11 IPC. (11) 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-11 IPC and sentenced to undergo R.l. for 10 years. The appellant shall be entitled to set-offthe period already undergone by him. Sd/- ^ ChiefJustice Sd/- Sunil Kumar Sinha Judge shyna