HW3H GOURTOF CHHAmSQARN. BtLASPUR D.B: Hon'bteShriRajeevGuptsi,C,A, & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Apoeal No. 1142 of 2003 Govmd Nagesia Vs. The Stsrte of Chhattisgarh JUDGMENT 4- Forconsideratjon Sd/- Sunil Kumar Sinha Judge HON»BLESHRt JUSTICE RAJEEV GUPTA ^ Sd/- Chief Justice Post for Judgment :ft 109/2006 Sd/- Sunil Kumar Sinha Judge C9 (r HIGHCOURTOFCHHAmSGARH. BILASPUR D.B: Hon'bte Shri R^eev Gupta. C.J. & Hon'ble Shri Sunii Kumar Sinha, J. Crifninaj Appeal No. 1142 of 2003 APPELLANT RESPON0ENT Govind Nagesia S/o Madhaw Nage^i, aged aboiA 30 years, Occupaticm- Labour, R/o Vittage Badhiya Chunwa. P.8. & Teh. AmbBtapur, Districl Surgup (C.G.) Versus The State of Chhattisgarh, Throi^h P.S. Ambikapur, Dt^rtct Surguja (C.G.) (ADpeal under Section 374 (21 ofThe Codeof Criminal ProceAire) AppearanGe: Smt. Savtta Thwari, Counsel fbrthe appeltant. ShriAshish Shukta, Govt. Advocate, fortheState. JUDGMENT (1^.09.2008) Fotlowmg judgment of the Court was ctetiverecf by Sinril Kumar Smha. J. (1) Appettant- Govind Nageaa stands convicted under Sectjon 302 I.P.C. and sentenced to undergo jmprisonment for (ife and to pay a-fihe of Rs.t.OOO/-, jn default of payment of fine to further undergo R.l. for 6 months, in Sessjons Trial No. 2(^/2003 by the Fourth Additional Sesstons Judge, Ambikapur on 14.10.2€X)3. (2) The case of the prosecution js that on 20.1.2003 at about 8.00 p.m., the appetlant was quarrelHng with hls fether and mother- Mangfl Bai (PW-^. Mangli Bai came out from her house and made hue and cry. Hearing the commotlon, the deceased, who was a Crimnwl ACTieal No. 1142 of2003 neighbor, went to the house of the appettant and tried to intervene saying that why he is harassing his parents. The altegations arethat on such interventton made by the deceased, the appeltant gave tangia blow on the head of the deceased, due to whteh, he fell down and dted on the spot. The assautt was witnessed by ft4angtr Bai (PW- 2), mother of the appellant. (3) The matter was reported to the police statton AmNkapur by matemal-grand-son of the deceas^J namely- Jai Narayan (PW-4). The First Informatjon Report (Ex.-P/S) arvsS the merg intimertion (Ex.P/4) were registered. The Investigating Offlcer reached to the scene of occurrence on 21.1.2003, gave nottee (Ex.P/1) to the Pancl^is and prepared inquest (Ex.-P/2) on the bocty of the deceased. The dead body was sent for ite postmortem to the District Hospital, Ambikapur under EX.-P/11 and the postmortem examination was conducted by Dr. M.K. Pandey (PW-12), who prepared his report Ex.-P/IO. The Autopsy Surgeon notteed that there was an incised wound of 7 cm. x 4 cm. x bone deep on the right tempero-parietal region and there was depressed fracture of right tempero-parietal bone. He opined that the cause of death was shock due to jntemal brain hemorrhage. (4) In further investigation, the appeflant was taken Into custody and his memorandum (Ex-P/5) was recorded u/s 27 of The Evktence Act, in pursuance of which, a tangia was selzed under Ex.- P/6 from the ptece indicated by him. Site plan was prepared under Ex.-P/S and btood stained soit, plain soil & a pairof ladies sleeper were seized under Ex.-P^. (5) After completion of usual jnv^tigation, the charge-sheet was fried in the Court of Chief Judtejat Magtetrate, Ambitepur, who In tum committed the matter to the Court of Sessions, from where, it was received on transfer by the Fourth Additional Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as aforementioned. Cmnmal Aroeal No. 1142 of2003 (8) The convjction of the appettant Is based upon the eye mtness account especialty on the evidence of Mangtj Bai (PW-2), mother of the appeltant. (7) Leamed counsel for the appeWant has not disputed the homicktat death of the deceased. She argued that the appettant has been falsety impHcated in this case and the mother of the appeltant is not a reKable witness. Altematwety, sheargued that it appears that during the quarret between father and son when the deceased intervened and had a talk with son, in heat of passlon, wtthout any pre-medjtation and without any intentjon, he assaulted the deceased, therefore.the offence wouteil not travet beyond s<304 Part II IPC. (8) On the other hand, (eamed counset for ie State opposed these arguments and supported the jodgment passed by the trial Court. (9) We have heard the leamed counsel for the parties at length and have atso pemsed the records of the Sessfons Court. (10) PW-2, Mangli Bai, js mother of the appetlant. She deposed that on the fateful night, on account of pouring more chiny in the vegetable preparation by the wife of the appellant, a quarrel begun between wife of the appettant and the parents of the appetlant, on which, the appellant assaulted her and he was also assaultjng her husband. On thts, she went out from the house and made hue and cry. on which, ttie deceased, who was her neighbor, came to their house and asked the appellant as to why he fr^uentty harasses his parents ? tt is only on this, the appetlant gave a tangfa blow on the heact of the deceased, due to which, he died. This witness has been put to a tengthy cross examinatjon by the defence but the defence has not been able to eh'cft any such circumstance on whteh her testjmony may be discarded. Moreover, her testimony appears to be supported by the evidence of PW-1, Gurubahal, who irmiediately reached to ttte scene of occurrence and saw that the dead body of .^e^deceased was (ying jn the house of the appettant. She is further Cmnnial Ameat No. 1142 of 2003 supported by the evidence of PW-7, Lwangsai, who deposed that when he was told by younger brother of the appeljant namely- Gudwa that the appellant has assaufted the deceased. he went to the house of the appetlant and saw that the appetjant is runnlng away from his house having an axe in hfe hand. Exactty, the same story has been disdosed in the FIR and the merg intjmation lodged by PW-4, Jal Narayan, who 1s materr^l-grand-son of the deceased. The version of this wftness $s further supported by the postmort@n report, Ex.-P/tO. Thiswitness js the mother ofthe appellant wd she has no reason to falsely implteate the appeltant In crime jn qu^tion. On petty quarrel on account of pouring djsproportjonate chlWy in a vegetable preparation by the daughter-in-law, even she was abused, she being the mother woutd not fatseiy jmpHcate her own son and save the actual cutprit of the crime. Therefore, the arguments advanced by the teamed counsel for the appeltant that 9. was not proved that the appellant assautted the deceased, cannot be accepted. The compljcity of the appetlant in crime jn question is well established. (11) So far as offence not traveling beyond Sectton 304 Part II IPC js concemed, jt appears that the act of the appettsBit was not pre- medjtated one. tt comes jn the evidence of Man^i Bai, PW-2,that firstly, some hot exchanges took ptace between wjfe ofthe appellant and this witness on account of pouring more chitty in a vegetable preparatjon as the child ofthe appeltant was weeping due to ft and then. the appellant assaulted his mother- Msnglj Bal and he was also assaulting his faftier; They were att inskle their hou^ and hearing hue and cry <rf the quarret in the house of the appeffart, the deceased, who was aged about 60 years and a next door neighbor went their house to intervene and pacify. He elderly talked wfth the appellant as to why he repeatedly harasses his mother and fether. It is after aH this, the appellant, teaving his father, gave ^ngje biow of tangiaio the head ofthe deceased, who sustained sfeove injury and succumbed to the sasd injury. Crmrinal Amieat No. 1142 of 2003 (12) The facts and circumstances of the case woutd show that the appetlant was totalty unconcemed wjth the deceased and therewas no pre-meditation and preparation of the appetlant to commlt the murder of the deceased. tn fact. when quarrel was going on between father and son»when the deceased intervened and had some hot exchanges with the appeltant, In heat of passion, upon sudden quarrel with him, on the spur ofmoment, ie appetlant gave a tangis btow to the deceased. (13) tn these facts and circumstanc^ of the case, jn our opinlon, the act wmmitted bythe appeUantwould not be punishable u/s 302 (PC and ft would be punishable u/s 304 Part II IPC. The appeltant though was having no intention to cause death offtie deceased or to cause such bodHy injury as is fjkety to cause death of the deceased but he was having a knowledge that the act done by him is tikety to cause death or to cause such bodity injury as Is (Ucely to cause death ofthedeceased. (14) Accordingly, the appeal is partly attawed. The convtetion and sentence awarded to the appeHant u/s 302 IPC are set aside. Instead, he is convicted u/s 304 Part II JPC and sentenced to undergo R.t. for 10 years. The appetlant is in jaH sjnce 31.1.2003. He shatl be entitled to set-off the period already under-gone by hjm. The appeal isatlowedto the extent jndteatedabove. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatU