ra CF000006818T ^ y-^- gslc : ^ NO----^-Z-/C^--..----- NAME -^y^.^1^^7 ' ^ ~ " ~-ff I- Father's Name -——r-^—s—s——?—-;.—ar Residence —,-- Age '/ uh' »3"s~T "e?7 <'-?7- ~E7?r?T7i"~^^~sr/1^' (//^7————————— Age —3-g---g-^— Crime No. -^-cj-^y-—-PoliceStation -^^^-^-^—-- Session Triat No. -g.-^^^-^-^.- Senteneed to --—^-^-^--^^~^-^-—--- On ^' ic ' s-ets^ v^ Under section -——^-^-^-—^—g—^-Ta—f^x; .,(i 3-1, ^ ^iVS~fF^~i-~S}nTT 'W^/ '"1 etf i/< <3 •> ^^-?'-^ It is explained to the Prisoner that if he states or wishes to be represented by legal 1 practitionerthe Appellate Court will not proceed^with the base for seven days unless the legal i- practitionerappears. Ifthe legal practitioner does notwish to be represented by legal practitioner I'-thecourtmayproceedatoncewiththecaseandwill not beobligedto give ahearingto anylegal S; practitionerWhoshouldappear - E i. t 2. Date ofApplication forcopy ofJudgment -•f. ^^'~c^g ^' 3 - o-& Date on which Appleal sent -—— 3. . Date on which Appeal sent ————————- g 4. Whether the prisoner wishes to be represented of not -Yes/ No 5. WhetherTheJudgmentCopyandProgress ReportofThe Case has givento appellant/ Counsellor ofTheappellant ^g-TF? e. -E77^7 -s'/s r«01, z7 •ESTR'. { MQ. —-——z-^>.^-/-^r?———————————— Name -^-^^-'^-^-^-S.^i-^^-i-^?-''3-^ S.Confined in .No4^^- t Forwarded to the CHIEF JUDICIAL MAGISTRATE -^-^.•^fj-^j————————Ja9 -——^ .^^ fT'y^' -Dated —<4-"-^-t—6-g——200 togathertothsproperAppellateCourt. ^^^T^,- 'f^-trq v^ •(^rtcj g<a,7%)^^ tq-gTq-7-t~q-i7-3rc-5" s^--& |No. —— tForuvarded to ;he -Date •—^^&.-— 200 Spate of receipt in AppeKatepCourt 'J % :- -!..B»t ''"%,., l. VI!w iS HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'bleShri Pritinker Diwaker,JJ Criminal Appeal No. 685/2006 APPELLANT Dayalu alias Ghurva RESPONDENT Versus State of Chhattisgarh through Police Station Bagbahar, District Jashpur, CG. JUDGMENT FOR CONSIDERATION 5 -5-201 1 Sd/- Pritinker Diwaker Judge Hon'ble Shri Sunil Kumar Sinha.J Sd/- Sunil Kumar Sinha Judge Post for // -5-2011 °SL Sd/- /0-5-2011 ;>S'-"E<''fc^ ^' HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Pritinker Diwaker,JJ Criminal Appeal No. 685/2006 Dayalu alias Ghurva APPELLANT Versus RESPONDENT State of Chhattisgarh through Police Station Bagbahar, District Jashpur, CG. Shri Vijay K. Deshmukh counsel for the appellant. Shri Ravindra Agrawal Panel Lawyer for the State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (;/.05.2011) Per Pritinker Diwaker.J This appeal is directed against the judgment and order dated 4.10.2005 passed by Sessions Judge, Jashpur in Sessions Trial No. 51/2005 convicting the accused/appellant for the offence punishable underSection 302 IPC and sentencing him to undergo imprisonment for life. 2. Facts of the case in nutshell are that on 15.3.2005 merg intimation Ex. P-1 was given by Kandru Ram (PW-1) alleging that on 14.3.2005 at about 8 p.m. one Madhu ofvillage Bandega had come to his house with rice and pulses for settlement of the marriage of his son Guddu with the daughter of the deceased namely Amrta. It is alleged that after the marriage was settled, all of them consumed liquor and had food. Thereafter, father of the accused/appellant namely Sikta had called all of them to his house for food and liquor where after consuming liquor the appellant herein said to the deceased that it is he who would perform marriage of the daughter of the deceased and therefore the rice be given to him. On this, deceased asked the accused/appellant as to why he could not get the marriage of his daughter performed and that the rice would be kept by him. Thereupon, some quarrel took place between both of them in which the accused/appellant herein dealt two axe blows on the head of the deceased as a result ofwhich he died. It is alleged that the incident was 'o') -2.— witnessed by him and his daughter-in-law Tunabai (PW-2). Based on this merg intimation, FIR Ex. P-2 was registered on that day itself against the accused/appellant under Section 302 IPC. After completion of investigation, challan was filed by the police on 16.5.2005 against the accused/appellant and his father Sikta for the offence punishable under Section 302/34 IPC. Trial Court however framed the charges against the accused persons under Sections 323 and 302/34 IPC. 3. So as to hold the accused persons guilty, prosecution has examined 08 witnesses in support of its case. Statement of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the trial Court has acquitted accused Sikta of all the charges levelled against him. It also acquitted the accused/appellant herein of the charge u/s 323 IPC but convicted and sentenced him as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that Kandru Ram (PW-1 ) has not fully supported the case of the prosecution because in paragraph No. 18 of his evidence he has stated that at the time of incident he was in his house whereas the incident had taken place in the house of Sikta. He further submits that this witness has further stated in his evidence that he had just heard some commotion. He submits that even Tunabai (PW-2) was not present on the spot and she is only a tutored witness. Lastly, he submits that there was no prior intention on the part of the accused/appellant to kill the deceased as the occurrence took place all of a sudden on a very trivial issue; everybody was drunk and keeping all these things in mind at the most the act of the accused/appellant would fall under Section304 (Part-1) IPC. He submits that as per the FIR the accused/appellant gave two axe blows on the head of the deceased whereas as per the medical report only one injury was found on his body. 6. On the other hand, counsel for the respondenUState supports the judgment impugned and submits that looking to the material collected by the prosecution, conviction of the accused/appellant under Section 3021PCisfullyjustified. 7. Kandru Ram (PW-1) has stated in his evidence that 4-5 months prior thereto, one Madhu of village Bandega had come to him in connection with settlement of the marriage of his son with the daughter of the deceased. Said Madhu is also said to have brought along with him some rice and pulses. According to this witness, after the marriage was settled, the accused/appellant and his father who were also present in his house, told him to take all the guests to his house for taking food and the deceased and his wife also accompanied them to the house ofthe accused/appellant. At the time when the deceased, his wife and the guests were in the house of the accused/appellant, the accused persons told the deceased to hand over the rice and pulses to them and the marriage of his daughter with Guddu would be performed by them. On this, according to this witness, the deceased is said to have retorted that he was still alive and the marriage would be performed by him. Refusal by the deceased led to some quarrel between him and the accused/appellant herein in which acquitted accused made the deceased fall down and accused/appellant herein assaulted him with axe. At the time of incident, apart from this witness, his wife, wife of the deceased and the Sarpanch namely Bhagwati were also present on the spot. He has stated that the accused/appellant had dealt two axe blows on the head of the deceased leading to his instantaneous death. According to hrim, since at the time of incident it was dark in the night, body of the deceased was lifted and shifted to his house, matter was informed to the Kotwar and then on the next day the merg intimation Ex. P-1 was given to the police, FIR Ex. P-2 was registered, spot maps Ex. P-3 and P-4 were prepared in his presence by the Police and Pabwari respectively, inquest was conducted and the dead body was sent for post mortem examination. In paragraph No. 15 of his cross examination, this witness has stated that according to the custom prevailing in their society, members of the boy's family visit the house of girl's family and in the event of settlement of marriage, rice, pulses, cash etc. are given to the girl's family. He has further stated that since the girl namely Amrta was brought up by him, the guests had 4l \ LI .- come to him in stead of going to the deceased with the proposal for her marriage. According to this witness, in the night the guests had stayed in his house and taken food as per the custom prevailing in the society. Next morning, the rice and cash of Rs. 110 was given to this witness by one Madhu of village Bandega and at that time the deceased had asked him that he would perform the marriage of Amrata and therefore the rice be given to him on which he told him that as Amrata was brought up by him, her marriage would be performed by him. This witness has further stated that as the food was not cooked in his house, ths father of the accused/appellant had taken the guests to his house for taking food on which the deceased had got angry. Thereafter, according to this witness, deceased had gone to the house of the accused/appellant to take back the guests, he had heard some commotion but as he was in his house, he could not tell as to who said what. This witness has denied the fact that the incident was not witnessed by him and one Bhagwati Singh. He has further denied that because of some old dispute, he has implicated the accused/appellant and his father in a false case. Tunabai (PW-2) - another eyewitness to the incident has made the statement before the Court in the same tone and tenor as by Kandru Ram (PW-1). She has stated that there was quarrel in the house of the accused persons in which accused/appellant gave two axe blows to her husband as a result ofwhich he died. In cross examination also this witness remained firmly stuck to what has been deposed by her in the examination in chief. Pradhan Ram (PW-3) is the witness of inquest vide Ex. P-5 also to the seizure of plain & blood stained soil, axe and clothes of the accused/appellant made under Ex. P-6, Ex. P-7 and Ex. P-8. He has stated that at the time of incident Kandru Ram (PW-1) had come to him and informed that accused/appellant herein had killed his son. Sadhram (PW-4) is the witness to seizure of a sealed packet made under Ex. P-8. Dr. Y.K. Toppo (PW-5) is the witness who had conducted post mortem examination on the body of the deceased and submitted his report Ex. P-9 stating that there was one incised wound on the left parietal area of head and fracture on left temporal depressed area. On internal examination he found that both the bones (^ A-^\ of skull were broken and reduced to pieces and brain material had also come out. Shiv Shankar Dheevar (PW-6) is the Patwari who had prepared spot map Ex. P-4. Assistant Sub Inspector - R.R. Toppo (PW- 7) is the witness who had done part of the investigation. N.B. Singh (PW-8) is the investigating officer who has supported the case of the prosecution. 8. Minute examination of the evidence of Kandru Ram (PW-1 ) and Tunabai (PW-2) makes it clear that a day prior to the incident some of the persons of village Bandega had come to the house of Kandru Ram in relation to the marriage of Amrata - daughter of the deceased and after settlement of the marriage rice and pulses were given to him. Evidence also reflects that when the guests were taken by acquitted accused Sikta to his house, deceased also followed them thereto where subsequently some dispute arose over the performance of marriage in which accused/appellant gave an axe blow on the head of the deceased. Though according to these two witnesses two axe blows were dealt by the accused, post mortem report shows only one injury over the head of the deceased. Evidence also reflects that on the fateful dayjust before the incident, accused persons and Kandru Ram (PW-1) had consumed liquor in the house of Sikta and some dispute erupted between them and in the heat of passion the accused/appellant gave a blow with axe on the head of the deceased. This Court finds no substance in the argument of the counsel for the appellant that Kandru Ram (PW-1) has not supported the case of the prosecution. To make the things clear, the evidence of this witness cannot be read between the lines rather it has to be read in its entirety and if done so, it cannot be said that he has not supported the case of the prosecution. This witness apart, there is another eyewitness nameiy Tunabai (PW-2) who has also supported the case of the prosecution. Thus taking a composite view of the evidence led by the prosecution, it is difficult to say that the accused/appellant had not assaulted the deceased. 9. Now the question to be considered by this Court is whether the act attributed to the accused/appellant would constitute an offence of fesser magnitude i.e. 304-1 IPC or not? Section 304 does not constitute "^, -&— an offence rather it provides punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be imposed in the 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 of 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 possible result, but the intention to cause death, or bodily injury likely to cause deafh, is absent. The first part of Section 304 applies where there is intention whereas 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 depnved of power of self-control under grave and sudden provocation, while exercising in good faith the rightof private defence orperson orproperty, 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 ensue. For attracting the former part of the Section, an element of knowledge is a factor. The intention is the purposeful doing ofa thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may be there by doing a thing. 10. If minute examination of the case in hand is undertaken, it come out clearly that present is not a pre-planned murder. It appears that at the relevant time the accused persons and the guests had consumed liquor together and there was some dispute over the performance of marriage of Amrta and consequent handing over of rice and pulses brought by the guests, which culminated in infliction of head injury to the deceased. Evidence thus clearly spells out that the incident is the result of sudden dispute being overpowered by of heat of passion, without any pre-plan or prior-meditation where the accused/appellant inflicted an axe injury to the deceased. Thus the case of the appellant would fall under Exception 4 of Section 300 and his act would be -/l *7 •7— covered underPart-1 ofthe said Section as the intention ofthe appellant can well be attributed from the act committed by him. 11. Resultantly, the appeal succeeds in part. Conviction and sentence awarded to the appellant under Section 302 IPC are set aside and he stands convicted under Section 304-1 IPC and sentenced to undergo rigprous imprisonment for 1 O years. ( 7~—-——— _.. SdA Sd/- s"nU Kuniar Sinh Judge Judgi a