^ss' fec?r 'i^ii^^t HIGH(;OURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Dhirendra Mishra & Hon'bie Shri R.N. CHandrakar. JJ. Criminal Appeal No. 102/2003 Pilaram S/o Sondhar, aged W years caste - Telanga, resident of Sonarpara P.S. Godam Distt. Dantewada. Vs. State of Chhattisgarh c9 Crimina! Appeal under Section 374 (2) of Cr.P.C. Present: Shri Prafull Bharat, counsel for the appellant. Shri Ashish Shukla, Govt. Advocate forthe State 0_RA L JU DGM^M^T (Passedon15mJuly,2010) PerDhirendra Mishra. J 1. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of GQnvlction. and order of sentence dated 20 November, 2002 passed in Session Triat No. 158/2002, whereby tearned First Additional Sessions Judge, Bastar at Jagdaipur, has convicted the appetlant for commission of offence punishable under Section 302 of the Indian Penal and sentenced him to undergo life imprisonment for causing homicidal death of his brother namely Itwariram Nag. 2. The case of the prosecution, in brief, is that the appellant is real brother of deceased. There was some dispute between them and ths matter was pending in the Court. A day before the incident i.e. on 24.02.2002 both the brothers went to attend the Lok Adalat at Dantewada. However, the matter could not be settled. The deceased returned to his home and stated that the accused asked him to pay an amount of Rs. 300/- for compromise of the dispute. As he did not pay the same, the matter was not compromised. Thereafter, when the deceased was sieeping in his home, appellant came at about 1 :30 a.m. in the night and attacked him with wooden plank lying there, as a result of which he died on the spot. The report of the incident was lodged by IVIanak Dei (PW/1) wife of the deceased on 25.02.2002 at 10:25 a.m in poiice station Gidam District - Dantewada, on the basis ofwhich F.1.R. (Ex.P-1) and merg intimation (Ex.P-2) were registered. After registering the crime, Police proceeded for the scene of occurrence. Inquest over the person of deceased was prepared vide Ex.P-12 in presence of witnesses. Thereafter, dead body was sent for autopsy to Primary Health Centre, Gidam, where Dr. R.L. Malviya (PW-7) conducted post mortem and gave his report vide Ex.P/5. Spot map was prepared by the Investigating Officer (Ex.P-7). On the basis of disclosure statement (Ex.P-3) of the appeilant, weapon of offence i.e. wooden plank was taken into possession vide Ex.P-4. 3. After- completing the usual investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Dantewada, who in turn ^ committed the case to the Court of First.Additional Sessions Judgefortrial. 4. Learned Sessions Judge framed charge for commission of offence punishable under Section 302 of the IPC against the appellant for causing homicidal death of. Itwariram Nag, who abjured his guilt. 5. The prosecution in order to establish the case against the appellant examined 9 witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. However, he did not examine any witness in his (iefence. 6. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appeliant as mentioned in paragraph one of the judgment. 7. Homiddal death of deceased Itwariram Nag is not in dispute. Even otherwise, from the evidence of Manak Dei (PW-1), Keuram (PW/2) who are eye witnesses of the incident and lodged the report against the appel!ant, as also from the evidence of Dr. R.L. Malviya (PW-7), who conducted post mortem over the person of deceased Itwariram and proved his report Ex.P/5 in which he found injuries as described in paragraph 13 of the judgment and further opined that deceased ttwariram died as a result of hypovolumic'shock due to excessive bleeding arid homicidat in nature. Homicidai death ofdeceased is established. '»• ^i? \ < '• JiJ R i E S Sweiling & crepitus over left cheek & be!ow left region (ii) ciotted blood In mouth and nose present, btood comes out on pressing. (iii) Abrasion left hand dorsal aspect 3 c.m. inside skin deep (iv) Injuries are ante-mortem in nature. Learned counse! for the appeliant submits that from the evidence of Dr. R.L. Malviya (PW-7), it is evident that the appellant gave only a single blow of wooden plank on the temporal region of the deceased. Learned counse! for the appeilant fairly submits that he is not disputing the finding of the trial Court based on the evidence of above eye witnesses and report of Dr. R.L. Malviya ;PW/7). However, he argued that the incident occurred on spur of moment without pre-meditation as a result of sudden provocation and gave a single blow on the temporal region of the deceased. From perusal of evidence of eye-witness Keuram (PW/2), it would be evident that whiie assaulting the deceased with the wooden piank appellant had neither the intention nor knowledge to cause death of the deceased. The incident occurred when the deceased declined his offer of liquor and in that Juncture he picked up the wooden plank lying there and assaulted the deceased on his head. In these circumstances, the tria! Court was not justified in convicting the appellant under Section 302 of IPC. On the other hand, Shri Ashish Shukla, Government Advocate, appearing on behalf of State has supported the impugned judgment. / -! 1 12. 13. 14. We have heard learned counsel for the parties and perused the evidence of Manak Dei (PW/1), Keuram (PW/2) and evidence cf Dr. R.N. Malviya (PW/7), who has proved post mortem report (Ex.P/5) as also the impugned judgment. After going through the evidence of eye-witnesses, we are of the opinion that their presence on the spot is natural, as the incident occurred in their house. Their version is corroborated with the medical evidence as weli as first information report and therefore we are of the considered opinion that the trial Court rightly held that the appeltant was responsible for injuries sustained by the deceased which resulted in his death. The oniy question for consideration is that whether the trial Court was justified in convicting the appellant under Sectipn 302 of the 1PC and whether the offence committed by the appellant would fall within any ofthe exceptions of Section 300 ofthe IPC. On careful perusal of the evidence of the above eye witnesses and postmortem report, we observed that Keuram (PW/2) has deposed that the appellant is uncle and the deceased was his father, on the date of the incident they were sleeping in their home. When he woke up to answer the call of nature, he saw the appellant in his house, the appellant asked his father to take liquor, on his refusal he took up the wooden plank lying there and assaulted him on his temporal region. He requested the appellant not to beat his father but he did not pay any heed to his request. From the evidence of Dr. R.L. Maiviya (PW/7) there was swelling on left cheek. Clotted blood was present in the mouth; there were ••ki. + ^ >... abrasion on left hand dorsal aspect of size 3 c.m. Clotfed blood was present on trachea and larynx; both the chambers of heart were empty. Left mandible bone was fractured. There was fracture on maxillary above the cheek. 15. Taking into consideration overall circumstances of the case, we are ofthe opinion that the appellant committed the offence without preme.ditation, he did not act in any unusual or cruel manner, he gave oniy a single blow by wooden plank lying on the spot, he did not go to the house of his brother with any preparation to commit his murder. On the contrary from the evidence of PW/2, we find that he went there and offered his brother liquor; the offence committed by the appellant falts within the exception 4 of Section 300 punishable under Section 304 part II. On the basis of aforesaid discussions, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC and sentence of life imprisonment imposed on him, are set aside. Instead, he is held guilty of offence punishable under Section 304, Part-11 ofthe IPC. Accordingly, he isconvicted under Section 304, Part-11 of IPC and sentenced to undergo Ri for ten 16. 17. He shall be entitled for set-off ofthe period already undergone by him. _^-——— ^. cfdi '•cnand^^ Jud§e ^-