“r M. A HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Ra'eev Gu ta C.J. 8a Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 349 of 2002 APPELLANT Durjan Ganda, s/o Parkito Ganda, aged about 46 years, resident of village ' Bayornunda, near Sarespara, P.S. Bayomunda, Distt. Balangir (Orissa) Presently at/near Marwari Kabristan, Ilnd Gali, near Mandir, P.S. Tikra Para, Distt. Raipur (C.G.) Versus RESPONDENT State of Chhattisgarh Through the Police Station- P.S. Tikra Para, Raipur (C.G.) (Apgeal under Section 374 12! of The Code of Criminal Procedurel Aggearance: Mr.Akhil Agrawal, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. v JUDGMENT (2l .o7.2oo9) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. ‘ (1) Appellant Durjan Ganda stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.2000/-, in default of payment of fine to further undergo R.I. for six months, by the II Addl. Sessions Judge, Raipur (C.G.) in Sessions Trial No.406/2001 on 13th of December, 2001. p \ 2 Criminal Appeal No. 349 of 2002 (2) The facts, briefly stated, are as under: Police Sub—Inspector Ajay Dubey (P.W.1) was on patrolling duty on 24.08.2001. At about 9 p.m. when he was in Tagore Nagar, Raipur, he saw that a person was tied by a rope in a Rickshaw and the Rickshaw puller was taking him towards Tikarapara. On suspicion, he stopped the Rickshaw. The Rickshaw puller was appellant Durjan Ganda and the person tied with Rickshaw was Hari Sagar (since deceased). Durjan stated that Hari Sagar had forcibly taken away his Rickshaw six months back and was not traceable. Today, he has been caught by him, therefore, he is taking him to the Police Station for making a report against him. S.I. Ajay Dubey (P.W. 1) along with other police personnel and one Amit Kumar Gupta (P.W.2) saw the person tied with Rickshaw. He was dead. Ajay Dubey (P.W.1) immediately recorded a Dehati Nalishi (EXP. 1) and the matter was reported to concerned police station where the F.I.R (EX.P.3) was registered. The investigating officer gave notice (EX.P.7) to the Panchas and prepared inquest (EX.P.8) on the body of the deceased. The dead body of the deceased was sent for its postmortem to Medical Gollege Hospital, Raipur where the postmortem examination was conducted by Dr.‘ Ulhas Gonnade (P.W.6), who prepared his report under Ex.P.3/A. He noticed many small abrasions on various parts of the body of the deceased. He also noticed a ligature mark on the anterior side of the neck. It was transversely placed and the same was dark brown in colour. The mark was not around the neck as it was not present on the dorsal side of g; m b) 3 Criminal Appeal No. 349 of 2002 the neck. On internal examination, he found hemorrhage beneath the ligature mark but the muscles and cartilages of the neck were healthy. Some hemorrhage was present in the internal membrane of the Wind pipe. The Autopsy Surgeon opined that the cause of death was asphyxia as a result of strangulation by‘ rope and it was homicidal in nature. In further investigation, it was found that at about 8 p.m., some quarrel took place between the appellant and the deceased and thereafter, the appellant was taking the deceased in his Rickshaw who was found dead by the patrolling party. The eye witness of the quarrel was the Wife of the deceased namely Sarita Bai (P.w.3). After completion of the usual investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Raipur, who in turn committed the matter to the Sessions Court, Raipur, from where it was received on transfer by the II Addl. Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellant, as aforementioned. (3) The conviction of the appellant is based upon the eye witness account of Sarita Bai (P.W.3) and the circumstance that i the dead body of the deceased was found in Rickshaw of the' appellant in tied condition by the police patrolling party. (4) Shri Akhil Agrawal, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. More over, it comes in the evidence of P.W.3 Sarita that ‘ . t’ WE.” it .i I J« VI 4 Criminal Appeal N0. 349 of 2002 a quarrel took place between the appellant and deceased in her house and the appellant had assaulted the deceased with hands and‘fists. In the postmortem examination, the Autopsy Surgeon also noticed many small abrasions on the body of the deceased and he also found the aforesaid injury on his neck and opined that the cause of death was asphyxia as a result of strangulation by rope and it was homicidal in nature. Therefore it was established that the death of the deceased was homicidal in nature. (5) Mr. Akhil Agrawal, then argued that according to the evidence of the wife of the deceased, on a petty matter, quarrel and scuffling took place between them. He argued that thereafter the appellant was taking the deceased to the Police Station by tying him with a rope in his Rickshaw and it appears that due to tying of the deceased with the'Rickshaw by a rope, inadvertently, his neck was pressed and the deceased died on the way. ‘ Therefore, there was no intention of the appellant to Commit murder of the deceased and he would not be liable for punishment u/s 302 IPC. He submitted that the appellant would be liable for punishment under some lesser section, preferably Part—II of Section 304 IPC. LI (6) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. t’ 5 Criminal Appeal No. 349 of 2002 (7) We have heard the learned counsel for the parties at length l and have also perused the records of the sessions case. (8) Sarita Bai (P.W.3, Wife of the deceased) deposed that her husband was a Rickshaw puller, appellant was also a Rickshaw puller and when her husband was alive the appellant used to visit their house for talking about Rickshaw. On the fateful day at about 8 p.m., the appellant came to their house and assaulted her husband’ The appellant had a plastic rope which he put in the neck of her husband. When she resisted, the appellant threw a stone upon her. Thereafter, she went to call her father—in—law who was residing at a distant place. By the time, she returned back along-with her father-in—law, the appellant and her husband had left their house. In the cross examination vide Para 5, she was confronted with her police case diary statements (EX.D—1), in which there are omissions relating to the assault given by the appellant to the deceased. She has only stated that the appellant took her husband in the Rickshaw after tying him with a rope. She also admitted in cross examination that some scufile took place between the appellant and her husband, which was witnessed by her. (9) In appreciation, we find that a quarrel took place between the appellant and the deceased on account of keeping the rickshaw of the appellant by the deceased since last few months, for which no rent was paid to him and thereafter, the appellant tied the 19 6 Criminal Appeal No. 349 of 2002 deceased With a plastic rope in his rickshaw and was taking that rickshaw to the police station but was intervened on the way by the police patrolling party, and by that time, the deceased died in his rickshaw. (10) Though the Doctor opined in the postmortem report that the cause of death was asphyxia as a result of strangulation by rope, but that does not appear to be correct on the face of his evidence Vide Paras 12 8L 14. In para 12, he clearly deposed that mark of ligature was not all around the neck as it was not present on the dorsal side. In Para l4, he deposed that the cause of death was asphyxia as a result of tightening of the neck. A11 this shows that in fact after quarrel in the house, the appellant has tied the deceased in his Rickshaw with a plastic rope with an intention to take him to police station, but the ventral portion of neck of the deceased got pressed by tightness of the rope which proved fatal. If the appellant would have caused murder of the deceased, why K he would carry the dead body in his own Rickshaw to the police station. It was not an incident unwitnessed as the quarrel was .J/ witnessed by the wife of the deceased, therefore, there was no questiorr of trying to cause disappearance of the evidence by throwing the dead body anywhere. (11) P.W. 1 Ajay Dubey has also deposed that when the patrolling party had stopped the rickshaw of the appellant and asked about the person in the rickshaw, the appellant, in the first 'u. ~~\ “g1 7 Criminal Agp6al No, 349 of2002 instance, disclosed that he is taking that man to the police station because he had ran away with his rickshaw six months back. (12) In the facts and circumstances of the case, in our considered View , the act of the appellant would not be punishable u/s 302 IPC. It does not appear that the appellant had an intention to cause death of the deceased. However, the evidence is writ large on record to show that he must be having knowledge that his such act may cause the death of the deceased, therefore, the act of the appellant would not be punishable u/s 302 IPC and he would be liable for punishment under Part II of Section 304 IPC. (13) In the result, 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 II IPC and sentenced to undergo R.I. for 8 years. It is stated that the appellant is in jail since 25.08.2001. He shall be entitled to set off the period already undergone by him. K ‘ g ‘ . Sty-3f bunll Kumar Sinha l Judge «ya; , sai— i: CHIEF JUSTICE t i Rao