HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'bleShri Sunil Kumar Sinha. J. Criminal Appeal No. 893 of 2003 Sukru @Sampat Vs. State of M.P. (Now Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HQN1BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Chief Justice (g Post for Judgment :10l\2/2008 Sd/- Sunil Kumar Sinha Judge ^, d ^,^??-^ ^^^ ^' A^R HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 893 of 2003 Sukru @ Sampat S/o Sukra, Aged 50 years, R/o Magnaar, P.S. Darbha, District Bastar (C.G.) Versus State of M.P. (Now Chhattisgarh) Through- P.S. Darbha, District Bastar (Appeal under Section 374 (2) of The Code of Criminal Procedure) ADpearance: Smt. Savita Tiwari, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (10.12.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant- Sukru @ Sampat stands convicted under Section 302 I.P.C. and sentenced to' undergo imprisonment for life by the Special Judge, Bastar, Jagdalpur in Sessions Trial No. 198/98 on 11.1.1999. (2) The allegations are that on 20.2.98 at about 14.15 hours, appellant Sukru committed murder of deceased Sonsingh S/o Govind in village Lendra. The incident was witnessed by 3 eye witnesses namety- Santi (PW-3, sister of the deceased), Ganesh (PW-6) and Lakhmuram (PW-7). The merg intimation (Ex.-P/1) was given at about 18.15 hours on 20.2.98 by the brother of the deceased namely Bantu, based on which a First Information Report (Ex.-P/2) was registered at about 18.20 hours on the same day. The Investigating Officer reached to the scene of occurrence on 21.2.98 and prepared inquest (Ex.-P/S) on the body of the deceased. The Criminal Appeal No. 893 of 2003 dead body of the deceased was sent for its postmortem to Primary Health Centre, Darbha under requisition Ex.-P/4, where the postmortem examination was conducted by Dr. A.D. Morey, who prepared his report Ex.-P/12. The Autopsy Surgeon found following injuries on the body of the deceased : (i) One pierced wound on the left side of the chest, size 3 cm x 21/2 cmx 5 cm & (ii) One incised wound on the left index finger, size 2 cm x 1 cm x 1 cm. On internal examination, he found that injury No.1 has pierced into the heart and the heart was punctured. He opined that the cause of death was shock due to excessive haemorrhage on account of injury to the heart, whichwas caused by sharp cutting weapon and it was homicidal in nature. (3) In further investigation, knife, shirt of the appellant, blood stained soil, plain soil and shirt, baniyan, Lungi & Chaddi of the deceased were seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur through memo under Ex.-P/10 and the Chemical Examiner's report Ex.-P/11 was obtained. According to the said report, blood stains were found on all the articles except the plain soil said to be seized from the place of occurrence. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Jagdalpur, who in turn, committed the matter to the Court of Sessions Judge, Jagdalpur, from where, it was received on transfer by the Special Judge, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (5) The conviction of the appellant is based on the testimonies of 3 eye witnesses namely- Santi (PW-3,sister of the deceased), Ganesh (PW-6) and Lakhmuram (PW-7). Criminal AppealNo. 893 of 2003 (6) Learned counsel for the appellant has not disputed the homicidal death of the deceased. She has also not disputed the involvement of the accused/appellant in crime in question. She has only argued that in the facts and circumstances of the case, the offence committed by the appellant would not travel beyond Section 304 Part-11 I.P.C., therefore, the conviction of the appellantbe altered to Section 304 Part-11 I.P.C. and he be punishedonly under that Section. (7) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the trial Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) So far as the homicidal death of the deceased is concerned, it has been established by the evidence of Dr. A.D. Morey (PW-8), who deposed that the above two injuries sustained by the deceased were antemortem and the death was on account of injury caused to the heart and it was homicidal in nature. The finding of involvement of the appellant can also not be disputed because the same is based on cogent, clinching and reliable evidence of 3 eye witnesses namely- Santi (PW-3), Ganesh (PW- 6) and Lakhmuram (PW-7). We are satisfied that they have established the involvement ofthe appellant in crime in question. (10) We shall now consider the main argument advanced by Smt. Tiwari that the act of the appellant would constitute an offence lessor than one punishable u/s 302 I.P.C. preferably Part-11 ofSection 304. (11) Section 304 does not constitute an offence. It provides the punishment for culpable homjcide not amounting to murder. It draws a Criminal Appeal No. 893 of 2003 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 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 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. 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. (12) If we examine the case on hand, it would be clear that present is not a pre-planned murder. It appears in the evidence of Lakhmuram (PW-7) that at the time of incident Sonsingh was in drunken condition and a fight has taken place between Sonsingh (deceased) and Sukru (appellant) prior 'to the actual assault given by the appellant to the deceased and they were ^wf.y-^-^^--^'^^-*%r-^ ^^^5^ ^ Criminal Appeal No. 893 of 2003 scuffling with each other and thereafter, single knife blow was inflicted to the chest of the deceased which pierced inside the thorax and damaged the heart. From his evidence, it appears that in a sudden fight, upon a sudden quarrel, without premeditation and planning, in the heat of a passion, the appellant inflicted single blow to the chest of the deceased which caused injury No.1 & injury No.2was caused while resisting the said single blow given by the appellant. It further appears that the appellant has not taken undue advantage or acted in a cruel or unusual manner while inflicting the said injuries to the deceased. Therefore, the case of the appellant would fall under Exception 4 of Section 300 I.P.C. and the act of the appellant would be covered under Part-11 of Section 304 I.P.C. as the knowledge of the appellant can well be attributed from the acts committed by him. (13) In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 I.P.C. are set aside. Instead, he is convicted u/s 304 Part-11 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years. (14) It is stated that the appellant is in jail since 21.2.1998 as he could not avail the facility of bail granted to him vide order dated 16.2.2005 passed by this Court while suspending the sentence imposed by the Special Court. The appellant shall be entitled to set off the period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti