V^EBSaS1 HIGHCOURT OF CHHATTISGARH. BILASPUR C^RAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'Me^Shrj Synit KymarSlnJiaiJ. Criminal Appeal No. 917 of 2002 APPELLANTS 1. Samnath S/o Mahango, Age 22 years 2. Suddou S/o Deva Age 30 years Both are R/o Village Paidalnar, P.S. Gadiras, Distt. Dantewara. RESPONDENT Versus The State of Chhattisgarh, Through P.S. Gadiras, Distt. Dantewara (ApReal under Section 374 (2) of The Code of Criminal Procedure) Appearancei Ms. Sofia Khan, Counsel forthe appellants. Mr. Akhil Mishra, Dy. Govt. Advocate, for the State. JUDGWIENT (28.01.2009) Following judgment of the Court was delivered by SunLI Kymar^SinJia, J, (1) The appellants have filed this appeal against the judgment and order dated 7.5.2002 passed by the Third Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 554/2001, whereby, they have been convi'cted u/s 302/34JPC and sentenced to undergo imprisonment for life. (2) The brief facts are that one Chamru (PW-8) of village Pendalnaar came to the house of deceased Lakhmu @ Bhima and invited him to attend Gauna ceremony of his daughter. On 24.10.2001, the deceased -/?- r y S '"SSSK& B 1,1 "•-^:: s^'^ ^ -B S ',^_^4-r ^f ^. ws^ ^y (UBi -5> Criminal Appeal No. 917 of2002 went to village Pendalnaar, thereafter, he did not return. On 27.10.2001, Sukalu came to the house of the deceased and informed his wife Somari (PW-1) that her husband has been murdered and the dead body is lying in his field. Somari went to village Pendalnaar and saw the dead body. The case of the prosecution is that when the dead body was seen by the villager, a Panchayat was organized, in which, many villagers including Muchaki Hadma (PW-2). Sukalram Nag (PW-3) and Sukalu (PW-5) were present and the accused persons made extra judicial confession in the Panchayat that they have killed the deceased by beating him by hands and fists on account of a quarrel relating to drinking of liquor. The First Information Report (Ex.-P/1) was lodged by Somari (PW-1) on 28.10.2001 which contains the above details as also the names of the accused persons. (3) On such report, the Investigating Officer left for the scene of occurrence, gave notice (Ex.P/3) to the Panchas and prepared inquest (Ex.-P/2)on the body of the deceased. On his requisition, the post- mortem examination was conducted by Dr. R.K. Kuruwanshi (PW-4). He prepared his report Ex.-P/4. The Autopsy Surgeon noticed the following injuries on the body of the deceased: (i) Abrasion 2 inch x 1 inch on the anterior surface of left knee; (ii) Abrasion 2 inch x 2 inch on the left side of upper abdomen; (iii) Redness, contusion on the abdomen size 2 inch x 2 inch & (iv) Redness, contusion on the upper chest. On internal examination, he found that lot of blood was present in the abdominal cavity, there were redness andcontusion on small & large intestines. There were fractures of three ribs of left side & four ribs of right ay (2^. % jy !i^ £'' & Criminal Aooeal No. 917 of2002 -^ side. The liver was pierced by fractured rib. There were contusions in both the lungs & there were dislocations of 2 & 3 cervicalvertebrae. He opined that the injuries were ante-mori:em and the cause of death was hypovolemic & neurogenic shock due to the above injuries on the vital organs ofthe body and it was homicidal in nature. (4) After completion of usual investigation, the charge-sheet against the above 2 accused/appellants was filed in the Court of Judicial Magistrate First Class, Sukma, whereas, a supplementary charge-sheet was filed against accused No.3 Sahdeo @ Banda before the concerned Juvenile Board. The case of the present appellants was committed to the Court of Sessions Judge, from where, it was received on transfer by the Third Additional Sessions Judge, Bastar at Jagdalpur, who conducted the trial and convicted & sentenced the accused/appellants as aforementioned. (5) Chamru (PW-8), the sole eye witness produced by the prosecution turned hostile and did not support the case of prosecution. The conviction is based upon the testimonies of Muchaki Hadma (PW-2). Sukalram Nag (PW-3) and Sukalu (PW-5), who were the participants of the village Panchayat where the appellants made their extra judicial confession. Learned Sessions Judge held that the deceased was beaten by hands & fists by the appellants, therefore, the appellants were liable for punishment u/s 302/34 IPC. (6) Ms. Sofia Khan, learned counsel appearing for the appellants, has neither disputed the homicidal death of the deceased nor involvement of the appellants in crime in question. She has simply argued that in the Kr 'pSS^^ 'J; ^ li;', BSB& § Criminal Aupeal No. 917 of2002 ^^ "NtS^ ^T facts and circumstances of the case, an offence u/s 302/34 IPC would not be made out and the appellants would be liable for punishment under lessor Section preferably Part-11 of Section 304 IPC. She relied on the decision of the Apex Court rendered in the matter of Karam Sinah -Vs- Stete ofPunjab, 1993 CRI.L.J. 3673. (7) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) We have gone through the evidence of Dr. R.K. Kuruwanshi (PW- 4) as also the wife of the deceased, Somari (PW-1). After the description of the injuries on the body of the deceased, Doctor has clearly opined that the death was homicidal in nature. Even in the cross examination, nothing could be brought on record, on which, the above evidence may be discarded. Therefore, it was established that the death of the deceased was homicidal in nature. About extra judicial confession, Muchaki Hadma (PW-2) and Sukalu (PW-5) have deposed that they were present in the village Panchayat and in the said Panchayat, the accused persons made extra judicial confession that they have killed the deceased by using their hands & fists. The 3 witness of extra judicial confession, namely Sukulram Nag (PW-3), in his examination-in-chief, did not support the case of prosecution. He was declared hostile and in the cross examination by Public Prosecutor, he admitted the entire prosecution ;story which remained unchallenged in further cross examination by defence. Therefore, the factum of extra judicial confession in the village VSES ^asii^ Criminal Aopeal No. 917 of2002 Panchayat was also established by the prosecution and we do not find any infirmity in such findings recorded by the Sessions Court. (10) Now coming to the arguments advanced by Ms. Sofia Khan, in Karam Singh's case (supra), there were 10 injuries on the body of the deceased. Some of them were abrasions. A lacerated wound was also found on the head but there was no corresponding internal injury. The contusions on the chest and injuries Nos. 5 to 7 resulted in the fracture of the ribs which caused the death of the deceased and the Doctor in his evidence had admitted that the fracture of the ribs could have in turn caused the rupture of the liver and the spleen. The Apex Court held that under these circumstances, it was difficult to hold that the appellant intended to cause the injuries to the liver and spleen which unfortunately proved to be fatal. The Apex Court considering the nature of weapon used and the parts of the body on which the blows were dealt as also the injuries, held that it was difficult to hold that the appellant intended to cause the death or intended to cause that pari:icular injuries to the liver and the spleen. However, under the circumstance he must be attributed to have the knowledge that by dealing such blows he was likely to cause the death of the deceased in which case the offence is one punishable u/s304 Part-11 IPC. (11) In the present case, we find that no weapons were used by the appellants. According to the prosecution itself, the assault was given by hands & fists. Doctor in his examination-in-chief categorically deposed that the liver was pierced by the fractured ribs, which shows that, in fact, the appellants were having no intention to cause death ofthe deceased l-,--..,-/'1 / ps£-^'r' CnminalAppeal No. 917 of 2002 or to cause injuries to the liver of the deceased. The background of the incident also shows that it took place after a quarrel between the appellants and the deceased on account of drinking of liquor. Therefore, it is difficult to hold that the appellants had intended to cause the death of the deceased. However, knowledge can well be attributed to them that the injuries caused by them tothe deceased was likely to cause the death and in such case the offence would be one punishable u/s 304 Part-11 IPC. (12) In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellants u/s 302/34 IPC are set aside. Instead, they are convicted u/s 304 Part-11 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellants are in jail since 29.10.2001. They shall be entitled to set-off the period already undergone by them. -.___ Sd/- . ?a/- . ^ sun" Kumar Sinha Justice Judge