HIGH COURT OF ¢HHATTI3GARH AT BILASPUR s Criminai Appeal No.842I2004 APPELLANT ' Ramsing Rathia s/o Budhmm Inja'il Rathia, aged ébou‘t 45 years; ‘ Resident of, village Chimtapani Police Station Gharghoda, Dis1r‘ictw Raigarh (Chhattisgarh) VEHSUS V f RESPONDENT State of Chhattisgarh through- Station Housa o§cer Poli¢e Station- Ghmghoda, {V Distri'ct Raigarh(CG) CRIMINA‘L APPEAL UNDER SECTION 374 (2} OF THE CODE 0F. CRIMINAL PROCEDURE Appearance: $hri Ashish Shukla, Gmlexnment Advocate for the State. Shri Prakash ’I‘iwan', counscl for the appellant Division Bench:- Hon’ble Shri T.P. Shaxma 85 Hun’ble 8111i KLJhanwanJJ ORAL JUDGMENT (21.10.2010) _ V_ Pe: T.P.Sharma, J. 1. Challenge m tins appeal 1s to the Judgment of convmnon and arder of Sentznce ¢iated 18 8 2004 passed by the 4thAddmonal e Sess1ons Judge (FTC), Ralgarh (CG) 1n Sessmns Tnal No 139/ 2003,- whereby and whereunder the learned Addmonal Sess1ons Judge after holdmg the appellant guJlty for comm1ss1on of culpable honuc1de amounting to murder of ms brother—Roopsmgh convmted the appellant Sectwn 302 of the IPC and sentenced to undetgo ampnsonment for lne and to pay a line of Rs 200/ 1n deiault to further undergo 1 month R I .q ' 2. The conviction is impugned on the ground that without tlxre bcmg any 1ota of ewdence su$c1ent for oonvmuon of the appellant I the Court below has convmted and sentenced the appellant as! afommentloned and themby comrmtted megahty. 3. Pmsccutxon case m bnef 1s that on fateful mght of 1 7 2003 at about 7 00 pm appeHant was abusmg and challengng the deceased to k111 mm on account of land d1spute and 11m appellant u ‘ assaulteé Roopsmgh (smce deceased) by axe on ins neck anti other parts of the body, as a result of Wh1ch Roopsmgh fell down and! iinalbr he dled“ Shankar Prasad (PW 1) lodged the FIR on scooné day v1de Ex Pl 1 The lnvesugatlng onmer left for the scene of occunence and after summomng mmesses vxde Ex P/3A Inquest over the dead body of the deceased was pmpared Vlde Ex P] 3a Spot map was prepaied Vlde Ex P/2 Dead body was sent tor autopsy to C H C Gharghoda, Whem autopsy was conducted by Dr. D.S. Patel (PW-9) v1de Ex. P/ 10 and found the followmg ' injuries : i. lncised wound of 6 x' V4 x '/4 over forehead Incised wound on right side of the neck of 7 x 1 x 3 cm in bleedmg condluon and mJuIy was dangerous m Inc1sed wound of 5 x V2 x V2 cm on left knee iv. Linear abrasmn of 8 cm length over nght side of the chest Mode of death was shock as a result of excessive external bleeding from the injuries side and death was homicidal in nature. Blood stained soil and plain soil was recovered from the spot vide Ex P/6 During the come of investigation, accused was taken? into custody He made disclosme statement of axe v1de Ex P/7 V same was recovered at the mstance of the accused v1de Ex P/8 Sealed clothes of the deceased were seized v1de Ex P/9 Fatwan prepared spot map v1de Ex P/S Axe was examined by Dr D S Patel (PW‘9) v1de Ex P] 11 and copy of exammauon of the axe was sent v1de Ex; P/ 12. Statements of the Wlmesses‘werc recorded under Section 161 of the Code of Criminal Pmcedgneifv J 1973 (in short the Code). 4. After completion of the investigau'on, eharge sheet Wes iiled x- befom the Judicial Magistrate l‘aixst Class Gharghoda; who in tum, commltted the case to the Court of Sess1ons, RaJgarh from whens the learned Addmonal Sessmns Judge recewed the case on transfer for 11ml. ‘ a 5. In order“ to prove the gullt oi the accused/ appellant prosecutxon has exammed as many as 14 w1tnesses The accused L was exammed under Secuon 313 01 the Code, Where he demed'the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6. After ah'ordmg opportunity of heanng to the panties, the learned Additional Sessmns Judge has conv1cted and sentenced the appellant as aforementloned. 7. We have heard Shn Pmkash ’I‘iwan, learned counsel for the appellant and Shri Ashish Shukla, learned Government Advocate for the State, perused the }udgment impugied and record of the Court below. 8. Learned counsel for the appellant vehemently argued that the alleged eye- w1tnesses - Shankar Prasad (PW 1) and Pumman (PW—7) have not supported the case of prosecution Statements of the Wltnesses are contradictory to each other and same are not safe to rely upon them. Even otherw1se, as per ev1dence of medical expert i.e. PW-9- Dr. D.S. Patel, mJury No2 Vwas‘ dangerous in nature and rest of the injuries were simple in nature. g. ’1 ”I r, ¢ v Appenant has not caused the mJuxy to the deceased W1th mtent to Jul] h1m On a sudden quarrel appellant has caused Injury to the deceased themfore, 1f the case of the prosecuuon ls taken at its face value to be true then also the act of the appellant does not :travel beyond the scope of Secuon 304 Pall II of the IPC He placed :mhance on Naimuddin Vs. state at wast saggy; 2010 era. $392 m whJch the Apex Court held m ease of death caused by throwmg bncks, 1t can be mferred that the appellant was havmg knowledge of connmttmg murder by throwmg bncks on vxtal parts; but the appellant has not commttted culpable honncnie amountmg to murder and 1t falls mthm the amblt of Secuon 304 Part II of the .f' VIPC In the matter of Gali Venkwah Vs. State at Andhm ‘Pradesh 2007 AIR SCW 7282, rehed upon by the appellant 1n ‘- whlch the Apex Court held 1n case of munler of brother on exchange of hot words, consequent thereto quarrel and also stramed relanons between them a sudden ught took place’ resulnng mto accused mfhcted kmfe blow on the chest of the deceased 1n such condmon the accused 1s enutled to benent of Excepuon 4 of S 300 and conv1ctlon of the appellant 1s hable to be alteted to one under Secuon 304 Part l of the IPC In the matter of A. Maharqia Vs. State OE Tamil Nady, reggrted in Am 2009 SC 480 1n case of sudden tight or quarrel Exceptlon 4 of Secdon 300 IPC W111 come mto play and the Apex Court altered the eonVlctlon ot the appellant to Secuon 304 ParE‘I of the IPC He further rehed upon the decuuon 1n the matter of Nate Sign Vs. State of Hmang, 2009 AIR ww 4310 1n whlch the Apex Lourt held that 1n case 01 free hght 1n wh1ch the accused mmcted mjunes by Ballam (spear) on the chest and lateral lower s1de of the deceased resulung mto death of deceased conv1ctlon oi the appellant was altered by the Apex Court to Secuon 304 Part II of the IPC. He placed further rehance m the matter of Jhabbu and others Vs. State aging, reggrtea in 2003 [3; mar 425 pg, M A, whercm 1t was held conv1ct10n can be altsred to Scction 304 Part I of thc IPC m case of sudden and grave pmvocatlon, Insulting mto death of the deceaS6d Learned counsel turthsr pmced rehance m the matter of Gouri Shankar Vs. State of M.P., 2004 (21 MFHT ’a ~ 01 gm: m Whxch the accused saw deceased 1n the room Wlth the W1fe of hls elder brother then he depnved of power of Ins self provocanon then the accueed mfhcted control by grave and sudden injuues on deceased With axe, 1n such condmon, the accused Was held V f to be committed culpable hom1c1de not amountmg to munler, therefore, he 1s enmled to beneht of Exceptlou 1 of Secuon 300 IPC and his conv1et10n was altered to Sectlon 304 Part II of the IPC Rename m the matter of Tamo xuaaru Vs. state, 2006 (41 my? i { l was also placed wherem the accused assaulted the deceased m a sudden fight 1n a heat of passmn and upon sudden. n h1s case was covered under Excepton 4 of Secnon quarrel the 300 IPC and Ins conwcnon was sustamable under Sectl n 3G4 Part II of the IPC. Lastly he placed rehance m the matter of tharat auas Martha Vs. state a MP. nw cm: ar , zoos 5 Ei i HT 85 [06); whereln the appellant plcked up a piece of wood f the deceased resultantly the deceased d1ed and 1t was held that though 1t 1s a} h1ch was 1ymg there and gave blow on the head o case of culpable hoxmctde amountmg to In rder, but accused deceased on sudden w1thout premed1tatxon caused the death of tight and 1n a heat of passmn, conv1ct10n of the appellant 1s altemed to Section 304 Part ll of the IPC. 9. On the other hand learned counsel tor the State opposed the appeal and submitted that 1n the present case convicnon 1s based n the evxdence of eyewnnesses Shankar Ptasad (PW 1) and“ mcxdent Th1s1s Punlmdtl (PW-7) who were present at the ttme of not a case oi sudden nght or quarrel or appellant has not caused mjury Without pmmedltahon or 1n a spur of moment and 1n a heat but he has caused the mJury on account of land of passmn, ‘ Indmg the axe the deceased the deceased ”I 19 % *‘In cider to appremate the the partles, we have examm the prosecution. k a 11 In the mjul'lfis OVCI’ substannally question 1s ev1denc d1spum He was wamng for the deceased to kill him He was d has caused 4 mpeatcd mjtmes over the body of although out oi 4 3 mjunes were snnple 1n natme 4 present case, homicidal death as a result of fatal the neck and head of the deceased has not been d1sputed on behalf of the appellant on the other hand 1t 1s also estabhshed by the ev1dence oi Dr D S Patel (PW ) and autopsy report Ex. P/ 10 and death was honnc1dal m natme the prosecutlon, Court below has nghtly conv1cted and sentenced n the appellant as aforemennoned. rguments advanced on behalf of ed the ev1dence adduced on behalf of she heard the sound of Shanlmr and. appellant appellant was abusmg hm} Then she went to the spat along w1th her father 1n law- Roop Smgh Roop Smgh adwsed the appellant not to abuse then the appellant assaulted her father 1n ‘ law by axe, wh1ch he was h1d1ng. over h1s neck chest and head. Thereafter she went for callmg Shankar, who was present m the Roop Sm house, at that hme, ‘ The repeated mlunes Show grave mtentlon of the appellant to 1(1111 After appxematmg the ev1dence adduced on behalf of} - 12. As tegards comphcny of the accused] appellant m enme m concemed. eonv1ehon of the appellant 1s based on the e of eye w1tnesses Shankar Prasad (PW 1) and Pummatll (PW 7) As per ev1dence of Pummatl (PW-7), she was present m her, house and came back wrth Shankar on the spot but at that nme, ; gh was lymg on the road w1th the mjunes and Ramsmghj fled n'om the spot. Shankar Prasad (PW- 1) has substannally corroborated the evidence of Pumman (PW—7) and has deposed that he came along with Punimatl on the spot, pat that time, Roop SmghA t a ; r l 0 was lying 9n the ground and appellant was running mm ttm syot: The evidence of aforesaid witnesses has been also corroborated by y the evidence of Anup" Sing]: (PW-2) and Mansingh (PW-3). g _ 1?. Defence has cmss exammed those w1tnesses at length, but: as per ev1dence of afoxesmd wxtnesses, they am resnients of same Vlclmty and at some dlstance, appellant was abusmg Shankar that . he W111 km hnn and when Roop Smgh med to mtervene and settle a the matter then Ramsmgh caused 4 mJunes over ins body, mcludmg fatal mjuty over hls head 14 Aln the present case Roop Smgh and Shankar have not quarmled w1th the appellant they were not holdmg any weapon and were not mtended to assault the appellant even they have not provoked the appellant for causmg such mjunes to Roop Smgh As 1s held 1n the cases of Naimuddin Vs. State of West Bengal, 2010 Crl.L.J. 392, Gali Venkataiah Vs. state of Andhm Pradesh, 2007 Am SCW 7282, A. Mahamya Vs. suite of Tamil Nada, reported in AIR 2009 sc 480, Nafc Singh Vs. SW of? Haryana, 2009 Am SCW 4310, Jhabbu and others Vsrstau of M.P., reported in 2003 (3) WHT 426 (DB), Gouri Shankur- ~ Vs. State of MR, 2004 (2) MET 301 (DB), Tamo Budaru V3.5 State, 2006 (49 MPHT 66 (Ct?) and Bharat alias Bhdrtha Vs“- Stm'e of 1:11P. (Now Chhatosgarm, 2008 (5) MET 85 (0Q s (supra), Apex Court, High Court of Madhya Pradesh and this Court held that in case of sudden tight or sudden quarrel, causing injmy after deprivation of power of self control by gtave and sudden provocation, the act of the appellant cannot be considered? as culpable homicide amounting to murder But in these V: Circumstances accused was enntled for benefit of Exception No. or 4 of Secuon 300 IPC and conv1ct10n was altered to Secuon 304 Part I or Part ll of the IPC. ~ " 15. In the pmsent case, appellant has not caused any injury to the deceased on a sudden provocation or sudden fight or sudden quanel and he has not deprived of his power of self control mieraha he makes h1mself ready for causmg such mjury He threatened and was abusmg to Shankar, he was holdmg axe a These cucumstances clearly Show that the appellant has caused fatal mjury to h1s brother Roop Smgh Wlth mtent to cause Ins death The facts of the afOIesald c1tat10ns ale clearly uchstmgulshable on facts of the present case and hence they are not apphcable to ttus case 3 16 After appxematmg the evxdence available on record, learned Addmonal Sess1ons Judge has eonwcted the appellant under Secuon 302 of the IPC and sentenced for hfe nnpnsonment. Conviction of the appellant is based on clinching, credible and legal evidence sustainable under the law. 17. On close scrutiny of the evidence, we do not hurl any illegality or inhrmity in the flnding of the Court below Warrantmg interference in exercise of appellate jurisdiction Consequently the appeal is bemg devoxd of merits It is hable to be dismissed and 1s Judge hereby dlsnnssed 7 ‘7 ‘7 n Sd/- Sd/- R.L. Jhanwar T.P. Sharma Judge