%, ^^ ^ HIGHGOURTOF CHHATnSGARHAT BILASPUR D.B.: HON'BLE Mr. JUSTICE SUNIL KUMAR SINHA & HON'BLE Mr. JUSTICE RADHE SHYAM SHMtMA CRIMINALAPPEAL N0,1541 of1995 APPELLANTS RESPQNDENT 1 Dilip Naik, S/o Udairam Naik, aged 26 years, R/o M.P.E.B. Colony, D/58 Hutments Darri, District Bilaspur 2 Rajpal, S/o Somnath Sharma, Aged 40 years, R/o Dau Para Darri, District Bilaspur Versus State of M.P. (Now State of Chhatti^arh) APPEAL UNDERSECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE Aopearance: Ms. Sofia Khan, Advocate for appellant No.l-Dllip Naik and Mrs.Renu Kochar, Advocate for appellant No.2 - Rajpal. Mr. U.K.S. Chandel, Panel Lawyer for the State. ORALJUDGMEItfT (27.07.2011) Thefotlowing judgment of the Court was passed by Sunil Kumar Sinha. J. '^, (1)' Ahis appeal is directed against the judgment dated 6th of Qctober1995pass«nn S.T. No.^8/1^2 by theAdditional Session Judge, Bilaspur. By the impugned judgment, the appetlants have been cQnvicted ynder Section 302 IPC and sentenced to undergo imprisonment for life. i^t:';':i'!:Tr m~ % CRIMLNALAPPEAL N0,1541 of 1995 (2) The facts, briefly stated, are as under: The case of the prqsecution jsthat on 20.02.1992 at about 5:00 p.m;, 3 accused persons namety Dilip Naik, Rajpat (appetlants herein) and Guha Ram Yadav assaulted the deceased by hands and fists and also by eable wire. The deceased received muttiple external injuries. The deceased himself went to the Police Station and lodged the First Information Report (Ex.P/21). He named the accus^l perspns in the F.I.R. He alleged that the accu^d perspns assaulted him by hands and flsts and cable wire. He also mentioned the names of the eyewitnesses to the incident. Those witnesses are Sukhsingh (PW-2), Babulal and Sampat Sjngh. The deceased was sent to the hospital for his medical examination and was examined by Dr. N.D. Ram (PW-1), who found multiple external injuries on the perspn of the deceased. His M.L.R. is Ex.P/1. The deceased was admitted in the hospital, where, he died during the course of his treatment on 22.02.1992 at about 5:00 a.m. Information was sent tothe concemed Police Station, Pancftanama etc. were prepared and the dead body of the deceased was sent for postmortem. The postmortem examinattonwas conducted by Dr. Anandram (PW-9). He npticed muttiple external injuries on thie body of the deceased.On jntemal examination, he fpund blood In the thoracic cayity and he also found .clots of blood jn the brain. He opined that the deceased ' diKl on account of myltiple injuries over the head and chest and then*death was homicldal in nature. The postmortem report is Ex.P/12. The tearned Session Jydge retytng on the contents ofthe F.I.R. and the evldence of eye-wltness -Sukhsingh (Fyv-2), held that It was proved beyond all !!i"t;:i:iili semsws"w ^6 CRIMINALAPPEAL N0.1841 of 1995 reasonable doubts that the two appeltants assaulted the deceased resulting into multiple injuries & death, therefore, theywere Ijable for punishment under Section 302 IPC. The' appellants, thus, were convicted under Section 302 IPC. However, the third accused namely Guha Ram Yadav wasacquitted of the charges framed against him. (3) Ms.Sofia Khan and Mrs. Renu Kochar, learned counsel appearing on behalf of the respective appellants, have not disputed the homicidat death of the deceased. They have also not disputed the involvement of the appellants. They argued that on a petty issue, a quarrel took place between the appellants and thedeceasedon 20.02.1992, In whteh, the appellants assaulted the deceased by hands and fists, due to which, the deceas^d sustained multiple injuries; the deceased himself lodged the F.I.R. and thereafter, he was admitted in the hospital, where, he died during the course of his treatment on 22.02.1992 i.e: on the third dayof the incident; there was no intention of the appellants to commit murder of the deceased; therefore, an pffence under Section 302 IPC would not be made out and the appellants would be liable for pupi^l'iment under some lesser Section preferabty Part-11 of Section 304 IPC. '*!»- (4) On theother hand, Mr.U.K.S. Chandet, learned Panel Lawyer appearing pn behalf of the State, opposed these '// //' ^m-'ill 'p CRIMINAL APPEAI. N0.1541 of 1995 arguments and supported the judgment passed by the SessionL Court. (5) We have heard- leamed cpunsel for the parties at length and have alsoperused the records ofthe Sessions Case. (6) There is ample evidence on record to show that a quarrel took place between the appellants and the deceased on 20.02.1992 at about 5;00 p.m. and the deceased received multipte injuries in the said quarret. Sukhsingh (PW-2)is an eyevifltnessto the incident. He depreed that he had seen the appellants assaulting the deceased by hands and flsts. The F.I.R. (Ex.P/21) has been lodged bythe deoeased himself. In the F.I.R., the deceased mentioned that he was assaulted by the appellants by hands and fistsand also by cable wire. The version of the eyewitness Sukhsingh (PW-2) is unchallenged. In Mumiu Raia and anoffier vs. The State of Madhva Pradesh. AIR 1976.S.C. 2199, the Supreme Court held that the statement of the victim, which is recorded as the First Information Report could be treated as hlsdying declaration. It has been held that where after making statement before the Police, the vjctim suocumbs tp his ifijuries, thestatement can be treat^d as hiscl^ng declaration and is admissible under Section 32(1)0fthe IndiafrEvidenceAct.Therefore, it is clear that ttiese two appellants assaulted the deceased on 20.02.1992 andthe deceased received multiple mjuries on ac^ount of their assault. l';'/ 1 r'l: l::;il '^"^i^f^l^l^ ysssg^-'fS^ • CRIMINAL APPEAL N0.1641 of 1995 (7) Now we shall examine the matter in light of the provisions of Section 302 vis-a-vls Sectlon 304 IPC. (8) 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 kitl belng present, the act woutd 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 homteidenot amounting to murder, that means, where there is knowledge that death witl be a likely resuK, but the Intention to cause death, or bodily injury likely to cause death, is absent. The first partotSection 3Q4 gpplies where there is Intention, whereas the second part applies where there is toiowledge but the important thing is that before holding the accused gullty under any part of Section 304, it has to be observed that a cteath must have been caused by him under any of the circumstances mehtioned in the flve Exceptions to Section 300, which Include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good fajththeright of private defence of person or prqSerty, and in a sudden flght in the heat of passion withoyt premeditation':"»Knowledge of consequences which may resylt in doing an act Is quite different than the intention which denotes thata partjcylar consequence should ensure. CRJMlNALAPPEALNQ.1S4_lQf1S9S (9) In the present case, as we have atready said, the incident toQk place on 20.02.1 992 and the deceased died after 2 days i.e. on 22.02.1992. According to the FIR, the deceased was assaulted by hands and fists and cable wire, whereas, according to the evidenceof eye-witness Sukhsingh (R/V-2), he was assautted by hands and fists only. On the evidence of the two Doctors, it would be ctear that the deceased did not sustain gny fracture in the said incident. After lodging of the F.I.R., an offence was registeraj under Sections 341,294, 506-B and 323 IPC. It is after the death of the deceased i.e. on the third day of the incident, the offence was converted under Section 302 IPC. (10) Considering the above facts and circumstances of the case, it js ctear that there Was no intention of the appellantsto commit murder ofthe deceased. There was no preparatlon as they assaultedthe deceased by hands and fists. There was also noprem^ditatjon thatthey would be committing murder of the deceased. We are of the view that in the above facts and circumstances of.the case, the act of the appeltants would not be punishable under Section 302 IPC and the appellants wpdtd be liable for punishment under Part -II of Section 304 IPC. '*»- (1t) For the foregoing reasons, the appeal is partly allowed. The;conviction and sentences awarded to the appellants undec Section 302 IPC are set-aside. Instead thereof, the :l|iiliF;l!~ti] W]" CRIMINAL APPEAL N0.1541 of 1995 appellants are convteted under Section 304 Part-11 IPC and sentenced to undergo R.l. for 7 years. It is stated that the appellants have already undergone more than the sentence awarded to them. Presently, the appellants are on bail. Their bail bonds are cancelled and sureties stand discterged. shyna Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharnia Judge c -- '*»- i nii