HIGH COURT OF CHHATTISGARH. BILASPUR A'''•'"^ CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. J J. Criminal ApDeal No. 528 of 1995 Nandlal Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA 5 °V^^xc€_ Sd/- R.S. Sharma Judge Post forJudgment : ^/07/2011^ Sd/- Sunil Kumar Sinha Judge ^s^ .^.// ^y HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hpnlble Shri Sunil KumarSinha & Hon'ble Shri Radhe Shvam Sharma, J J. ^ APPELLANT RESPQNDENT Criminal Appeal No, 528 of 1995 Nandlal, Son of Akhturam Halba, Resident of village Madwa Pathra, Police Station Daundi Lohara, Tahsil Balod, District Durg, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure. 1973) Appearance: Mr. M.D. Dhote, Advocate for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (4.07.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 1 of March, 1995 passed in Sessions Trial No. 227/94 by the Fifth Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentencedto undergo R.l. for life. (2) The facts, briefly stated, are as under:- The allegations are thaton 16.6.93 at about 6.30 p.m., the appellant assaulted deceased- Prahlad by a piece of wooden log which is used in bullock-cart. The incident was witnessed by Kavilash Singh Netam (PW-2). Brother of deceased- Jethuram ^"...^. "f ^•"~"'^r: Criminal Appeal No. 528 of 1995 (PW-1) also reached immediately after the incident and saw that the deceased was lying on the ground and the appellant was standing having a piece of wooden log in his hand. Jethuram (PW- 1) reported the matter to the concerned police station, on which, the First Information Report (Ex.-P/12) was recorded. The F.I.R. contains the name of the appellant. The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/S) on the dead body of the deceased. Site plan was also prepared under Ex.-P/4. The dead body of the deceased was sent for post-mortem to Government Hospital Daundi Lohara vide requisition Ex.-P/14. The post-mortem examination was conducted by Dr. D.R. Dhurve (PW-5). He found one lacerated wound of 2 inch x 2 cm on the parietal region. He also noticed one contusion of4 Vi inch x 1 inchon the left portion of the chest. There was another contusion of 2 inch x 1 inch on the left arm. There were abrasions on both knees. On internal examination no fracture was detected beneath above injuries or oh any other portion of the body. The Autopsy Syrgeon opined that the injuries were ante-mortem and were caused by hard and rough object. The cause of death was shock on account of blood loss (haemorrhage) by the above injuries and it was homicidal in nature. The post-mortem report is Ex.-P/S. In further investigation, the appellant was taken into custody and his memorandum statement u/s 27 of the Evidence Act (Ex.-P/5) was recorded and a piece of wooden log of one meter was seized at the instance of the appellant vide seizure memo Ex.-P/6. The seized articles along with piece of wooden log were sent for their chemical examination to Forensic Science Laboratory, Raipur, from where, a report Ex.- P/17 was received.According to the F.S.L report, blood stains were found on the cloths of the deceased and toliya of the appellant, but not blood stains were found on the wooden log. After completion of usual investigation the charge-sheet was filed in the Court of Judicial Magistrate First Class Balod, who in turn committed the matter to the concerned Sessions Court, from /'/'^"^ lt! ^. g ^~1^:%-^. y 1 ^siil^^ll ^ // Criminal Appeal No. 528 of 1995 where, it was received on transfer by the Fifth Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as aforementioned. (3) The conviction of the appellant is based on eye-witness account of Kavilash Singh Netam (PW-2) who deposed that the deceased was assaulted by appellant by a wooden log. (4) Mr. M.D. Dhote, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death ofthe deceased. He has also not disputed the involvement of the appellant in the present crime. He argued that the evidence of Kavilash Singh Netam (PW-2) would show that some altercation was going on between the appellant and the deceased and during the said altercation, the appellant, allof asudden, picked up the wooden log and assaulted the deceased. He further argued that there was no fracture on the body of the deceased, therefore, in the above facts and circumstances, an offence u/s 302 IPC would not be made out and theappellant would be liable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State opposed, these arguments and supported the judgment passed by the Sessions Court. (6) We have heard learned counsel for the parties at length and have also perused the records of the sessions case. (7) After going through the evidence of Jethuram (PW-1) and Kavilash Singh Netam (PW-2), we have no doubt that it was the appellant who ^<<?-"-:: '"^^^. ^ ^i '^ i^By '^^y Criminal Appeal No. 528 of 1995 assaulted the deceased by the wooden log which resulted intohis death. Therefore, the finding of the Sessions Judge that the deceased died on account of the assault given by the appellant by wooden log was fully justified. (8) Now we shall considered the argument relating to Section 302 vis- a-vis Section 304 IPC. (9) Section 304 IPC provides 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 by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power of setf-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 Criminal Appeal No. 528 of 1995 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. (10) In the present cdse, on the evidence of Kavilash Singh Netam (PW- 2) it is clear that firstly some altercation took place between the appellant and the deceased and thereafter the appellant, all of a sudden, picked up the wooden log and assaulted the deceased by the said log, which is commonly used in bullock-cart. (11) 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, what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger and he must not have taken any undue advantage or acted in a cruel manner. Present is also a case in which nothing was premeditated and it appears that the appellant assaulted the deceased after an altercation in heat of passion. Even the deceased did not receive any fracture on account of the assault given by the appellant and he died on account of the haemorrhage sustained by him. Therefore, we are of the view that the case of the appellant would fall within Exception 4 of Section 300 IPC and that in the facts and circumstances of the case, he would be liable for punishment under Part-11 of Section 304 IPC. CriminaLAnpeal No. 528 of 1995 vatti (12) 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 thereof, the appellant is convicted u/s 304 Part-11 IPC and sentenced R.l. for 10 years. The appellant was arrested on 18.6.93 and he was released on bail on 1.3.2004, therefore, he has already undergone for more than 10 years. Presently, the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge