^'" "^S?RQ .,.^"' ']> -A ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1040 of 1992 Ratanram Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Orief Justice ^ 7oy/^uro Post for Judgment :-3/09/2010 Sd/- /09/2010 ^KTS .,./4 /.V l/^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hpn'ble Shri Synil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No.A040 pM 992 Ratanram S/o Bhihansai Gond, Aged 22 years, R/o Village Khuirpara Vijaynagar, P.S. Kapu, District Raigarh Versus State of Madhya Pradesh. (Now State of Chhattisgarh) Through Station House Officer, Police Station Kapu, District Raigarh (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure, 1973) Appearance: Mrs. Kiran Jain, Advocate forthe appellant. Mr. Akhil Mishra, Dy. Govt. Advocate forthe State. JUDGMENT (5.09.2010) Following judgment of the Court was delivered by Synil Kumar Sinha, J. rd (1) This appeal is directed against the judgment date 23'" of April, 1992 passed in Sessions Trial No. 193/91 by the Sessions Judge, Raigarh, whereby the two accused persons namely Moturam and Ratanram (present appellant) were convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. ..-.-.^ *' '" -T'f ,./ Criminal Appeal No. 1040 of 1992 (2) Co-accused- Moturam filed a separate appeal against the impugned judgment dated 23.4.92 which came to be registeredas Criminal Appeal No. 1041/92. Moturam died on 25.9.98 in Central Jail, Bilaspur, therefore, the appeal filed by him was dismissed as abated on 6.9.2005. (3) The facts, briefly stated, are as under:- Deceased- Sukhmaniya Bai was the wife of Chetram. On 18.10.91 at about 2.00 p.m., when she was on the way to her house, she was assaulted by the accused persons by lathis. After receiving the assaults, she fell down in a pit. Thereafter she started running but she fell down near the court-yard of Sukhibai, where she died. The incident was witnessed by Sukwaro Bai (PW-2), Sumitra Bai (PW-3) and Samarin Bai (PW-4). A dehatinalishi (Ex-P/1) was recorded in this regard. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the body of the deceased. The dead body of the deceased was sent for its post-mortem examination which was conducted by Dr. G.K. Verma (PW-7), who prepared his report Ex.-P/13. He noticed following injuries on the body ofthe deceased:- (i) Contusion 4 inch x 1/2 inch, reddish on the interior aspect of right shoulder & (ii) Contusion 3 inch x 'A inch on the inner portion of right knee. On internal examination, he found laceration on the spleen in size of 4 inch x 1/2 inch. hle very specifically mentioned in the report that no other injury was found. According the post- mortem report, the cause of death was shock and haemorrhage on account of rupture of spleen. Criminal Apoeal No. 1040 of 1992 (4) The learned Sessions Court relied on the testimonies of Sukwaro Bai (PW-2), Sumitra Bai (PW-3) and Samarin Bai (PW-4) and convicted and sentenced the accused persons as aforementioned. /• •^ (5) Mrs. Kiran Jain, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. She argued that there were no external injuries on the vital part of the deceased; even there were no corresponding fractures of the two external injuries found on her body; there was no corresponding injury to the internal injury sustained on the spleen; therefore, it cannot be said that, in fact, the injury to the spleen was caused by accused persons and in the facts and circumstances of the case, it cannot be said that they had assaulted the deceased with intention to cause her death. Her submission was that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (6) On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. %^^y :""»^r-!?'1" Criminal Appeal No. 1040 of 1992 (8) So far involvement of the appellant is concerned, it was fully established by the evidence of above three eye-witnesses that the deceased was assaulted by the appellant & co-accused by lathis. Sukwaro Bai (PW-2) was aged about 12 years on the date of her evidence. She is the step-daughter of the deceased. She deposed that the appellant Ss co-accused assaulted the deceased by lathis who received injuries on her body. She also deposed in examination-in-chief that on account of all this, the deceased fell down in a pit and thereafter she stood up and ran away towards the court-yard of Sukhibai, where she was again assaulted by the accused persons. Sumitra Bai (PW-3) also deposed in similar fashion. She deposed that the deceased was assaulted by the accused persons by lathis, due to which, she fell down in a pit and thereafter she any how came out from the pit and ran away towards tikra. There also she was assaulted by the accused persons. Samarin Bai (PW-4) has also supported the above contentions of the two eye-witnesses. On the above evidence led by the prosecution, we have no doubt that the deceased was assaulted by the accused persons by lathis, who received the above two external injunes. (9) Now we shall examine as to what offence, in fact, was made out. It is apparentfrom the evidence of Dr. G.K. Verma (PW-7) that the deceased received only two external injuries, .one on the / isa, | ^J: ^ Criminal Appeal No. 1040 of 1992 shoulder and otheron the knee. Even there were no corresponding fractures to these injuries. Though the Autopsy Surgeon found that there was rupture of spleen, but no corresponding external injury was found on the body. It appears that the rupture of spleen occurred on account of fall of the deceased in the pit and it was not a result of the injuries caused by the accused persons to the deceased, and in these circumstances, it was difficult to hold that the accused persons intended to cause injury to the spleen which ultimately proved to be fatal. (10) Section 304 IPC provides the 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 pari: 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 self-control ~\ Criminal Apoeal No. 1040 of 1992 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 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. (11) Ifwe apply the above principles in the facts and circumstances of the case on hand, certainly the act of the appellant & co-accused would not be punishable u/s 302 IPC and they would be liable for punishment u/s 304 Part-11 IPC as we find that though the intention to cause death or to cause such damage to the spleen cannot be attributed to the accused persons, but knowledge can well be attributed to them that their such act was likely to cause death or to cause such bodily injury to the deceased as likely to cause death. Even if rupture of spleen resulted due to fall of the deceased in the pit, but it was on account of the above act of the accused persons. (12) For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302/34 IPC Y ••'^ :• 'i / Criminal Appeal No. 1040 of 1992 rV.\ [^ are set-aside. Instead thereof, the appellant is convicted u/s 304 Part-11 IPC and sentenced to undergo R.l. for 5 years. We gather from the records that the appellant was in jail from 20.10.91 to 11.12.93 and thereafter from 23,12.97 to 15.1.2001. In this manner he has already undergone for more than 5 years. Presently the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Justice Sd/- Suni] Kumar Judge vatti