wwux’m 36W IX (U Imma” W I”HI”IIIIIIHHHHIIIH”ll!!! _ 1 0000059036 € P§Ei E“ ’1 ‘‘..‘ E51 duff? y qfnTT -_§% é!(W ymé—g%v4 keauhmmu ‘%‘r mi M ¥iwriiir &¥id§Tg é awh%Ta WWH‘I’“ ' 1@r"'( __ ié 1'2 )1 _ [A smcucm (t g&r?"“vmgg €37mFLiWQ—I9‘7‘ «\Wkf?‘ w/Mwv 3r 3—rwcwsn $7 w‘mW—ww ) wmlwm s cm" mini m m“ mammr ¢imi 5f he matm (M wshes 10 08 *emweemed b3? Iega‘Q \ r th“ \ Apw‘nuw C‘mmt Wm am macem‘i Wih me haw {or 2360mm days 60111050 (mew zigywm 0 EH me iegal macimamer $0e5 mm apwam‘ wnk‘m swam 550m at mil Ema gmwaw slaws mdt Ewe doas mm 041033 i0 be fepxe- . <muad [W kga g twmlalmr Kim mini may 90106000. a0 {meg mih {he use and Wm um, b9 ghitgw£ m gw.‘ imm‘mg m &mf lregai mamkmmx mm 010mm appeai . \ . wag“; whmh & 003w @T wraiwr m mse Lrammlsswn 0.1 Appcnghab; M00100 .0 hipwmwwlear Q-f Fmim €03 Q. E Mfg 003.0% __ wa‘tg/ 0am: @kragm @0 a 0? maupi tremré w wemgmmy v2 000 at $gg$&i v95” 0hr: Apyagmc rum; _ @aw3 El 3. Magkiraie 7 W \i x U ' e ' ‘ 0. x .‘x, S é 1' Dam: of Agguw 10:1: R: «my? 0f imigemém 3% 414.9%» 2 Pam OE WET ‘1“ 003W mawmed ELAzllLJggi_*'_ 3 Dmmosn Whldm £wgw0i gem \ 4E w§mi§wgn§h0 mimmr wtwm £0 1w repws‘mgeé 0r 00$ « Yss ¢§$a1 M ‘W ”w. ' Nwm N0, q a‘am . {.mwmmuadi ml (’ b Nm 0%, *‘m ’ ; __ WKIJPW'g LLYLP ) 1 x" 34m 31mm J J Mb 1 i7? Jy%e W Fmwmm LO the '7" ‘ (Jwm m&mww W (#yg a, " «WC’U‘wC—H‘Af ‘ rim] < HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Agneal No. 260/ 1992 Chamru 'Vs.’ s£a‘£e‘ of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION Sdl- /_’/ Dilip Raosaheb Deshmukh Judge [é -08-2005 Hjon’ble sm-i Justice v.K.Shrivastava w ‘ _ :s- V.K. Shrivastava Judge -08-2005 Post for 13 -08—2005 Sdl- Dilip Raosaheb Deshmukh Judge ; ‘ (ix dan. i Smt. Kiran Jam, Counse‘l for the appenant. Shri M.P.S‘. Bhau'a, P.L. for the State. 1 i l i LP C ‘ G! HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Anncal No.260[ 1992 Chamru Vs. State of Madhya Pradesh (now Chhattisgarh) g‘ J u D G M E N 1‘ 1De11vemd o&$ -08 2005) This appeal is directcd agéinst the Judgment dated 16-12-1991 dchvcxed 1n Sess1ons Tnal No 139/89 whereby the appenant Chamru was conv1cted under sectlon—302 and 323 of the I P C for committmg munier of Kamuna and also for voluntanly causing hurt to Talashi PW— 10 and was sentenced to undergo nnpmsonment for hfe under secnon-302 of the IPC and Rlgorous Impnsonment for 1 year under secgon—323 of the i It is not disputed that Dhangra PW-8 is the father, Dhanaram PW-l and Talashi PW- 10 are the brothers, Sukhmania PW-2 is the mother and Narbadia, PW—9 is the sister of the deceased Kainuna. Tax Bnedy stated the prosecution story 1s that on 10 11 1988 at about 4 P M Dhanaram PW 1 along w1th his family members Wart-av J ‘ ‘ CORAM HbN’BLE SHRI VIJAY KUMAR SHRIVASTAVA & HON’BLE SHRI DILIP RAOSAHEB DESHMUKH, JJ. Per Ding Raosaheb Deshmukh, J. ; was celebratmg the festlval of Deepawah The appellant Chamru also hved nearby across the mad and wa< also 1n a festlve mood w1th hls famlly members At th1s pomt of time, there was some (ilscussmn between the acqmtted accused Koshalaya and the sister of Dhanaxam. A quarrel soon erupted between the two families, The appellant Chamru along with 5 other co—accused namely Prem sai, Sunder, Koshalya, Phuleshwari and Dhanpal came to the house of Dhanaram with lathies and a nght started. It is~aJJeged that the appellant wasalso carrying a Guptj besides a lathi. Kamuna received a lathi blow on his head from Accused lDhanpal. Dhanaram PW-l also sustained injuries. At this point of time, k the appellant . Chamru struck Kamuna with . a Gupti, Which pierced the left .side of chest. Kamuna succumbed to the injury on the spot. The appellant also struck Talashj PW- 10 with a lathi. Postmortem conducted by Dr. R.S.Rajput PW-ll tevealed that Kamuna had sustained a punctured incised Wound on the left srde of chest under the left armpit between 5th &. 6th mtercostal space and contusron 4 c m x 4 c m on right parietal bone. Upon dissection, it was found that the stab §/' I \jvound had punctured the heart nom the left ventricle to right fentricle. There was collecn'on of blood inside the chest. In his opinion, death was caused by syncope due to shock by hunctured wound to the heart and was homicidal in nature. t ‘ . _ . . I il‘he appellant Chamru was also sent for medigal examination bn 11 11 1988 Dr Rajput vide Ex D-4 found lacerated wound into 5c mX1/2 c m x V4 c m on skull at left parietal bone w1th ‘clotted blood present and swelling around the wound There was an moised wound 3 cm x l 1/2 cm x 1 c.m. on left forearm which was 10 cm below the left elbow Jomt With bleeding and cracking sound present Dr Rajput PW 11 examined Talashi on 10-1171988 and found lacerated Wound 3 c.m. X V2 c.m. X V4 c.m. on n‘ontal bone lateral side and swelling around wound and bleeding present and another lacerated @ l c.m. :x ’/4 c.m. on frontal bone right side above downward. There was éontusion of 6 c m x 3 c m on mntal bone and anothEr contusmn hnear 8 c m x 4 c m on back and obhqucly present belov? nght scapulaiaeglon was also found In hJs oplmon these mjuqes were caused by hald 8r. blunt object. § 1 l i 5. The appellant Chamru was prosecuted along with 5 other co~ accused-namely Prem sai, Sunder, Koshalya, Phuleshwari and Dhanpal for oEences punishable under section—147 148 and 149 mad w1th secuon-302 and 1n the alternauve under sechon— 302 and section-323 of the I P C 1 l 6. The appellant abjured the guilt and claimed tn'al. The Prosecution examined as many as 12 witnesses in thisrcase. The Trial Judge relying upon the testimony of Dhanaram PW—l, Dhmqigra Pw—s, sakhmania PW-2, Narbadia Pw-g and TaJashi PW- i0, which was duly cormborated by the medical evidence of Dr. Rajput PW-11,_ convicted the appellant Chamru under ‘ 11-302 85 323 of the I.P.C. and awalded sentence as S€C aforesaid and also convicted co-accused Prem sai under section-323 of the I P C for voluntarily causing hurt to Talashi and Dhanpal under section—323 of the IPC for voluntanly causmg hurt to the deceased Kamlma Remaining co—accused Sunder, Koshalya and Phuleshwarl were acquitted. The present i appeal is only on behalf of appellant Chamru. um Learned counsel for the appellant has contended that the ‘ evidence led by the prosecuh'on and the injuries sustained by the appellant Chamru shows that the appellant Chamru was not the aggressor and had acted In self defence It was also ed that the appellant Chamru had caused only a Single qlwn . n. ._ L @ injun'r with Gupti on the chest of Kamuna and thereafter no other injury was caused. The evidence led by the prosecutiogn showed that there Was sudden hght Without any pre-meditation and dpon being assaulted on the head, the appellant had acted not only under grave and sudden provocation but also in exerck'se of the right of his self defence. From the conduct and manner in which a single injmy was caused by the appellant, it would be reasonable to infer that he had knowledge that the said act .was likely to cause death but Without any intention to cause death. Learned counsel therefore contended that the conviction of the appellant Chamru under section-302 of the I.P.C. shduld be alteled to section-304 Part-II ofthe I.P‘.C. It was also v argued that the appellant had already undergone inc eration for more than 13 years and therefore the'awanl of the custodial sentence already undergone by the appellant would meet the ends of justice. On the other hand, learned counsel for the State contended that the nature of stab injury i.e. the punctured wound sustained by Kamuna on the left side ’of chest which had pierced the left ventricle as also the right ventricle is suhicient to attribute the requisite intention of the appel%lant for causing the death of Kamuna so as to bring the , l oEence punishable under section-302 of the I.P.C. i o / We ha1ve considered the rival contentions and have als‘b perused the IeJcord minutely and the testimony of Dhanaram PW—l, Sukhtnania Pw-2, Dhangxa ‘Pw-s, Narbadia Pw-9 and Taiashi PW-lO. The testimony of these Witnesses that Kamuna had received the fatal wound by Gupti at the hands of Chamru is cons' tent, cogent and reliable. It is also comborated by the medical evidence of Dr Rajpiit PW-l 1 Learned Trial Judge has therefore rightly placed rehance on the above ev1dence for coming to the conclus1on that the appellant Chamru had, caused the death of Kamuna by stabbing With Guptt 1n the 1 l s l 1 l l l l l g9 its t he s o t h jre t pp hamr w Kamun G e dis h se I ie f t prep atl am PW s e p e o h t tar e p h he d W Naa 9 a e ls ‘ t simo alas n s Cha a h hm i ne t us pllant h h at h aen had ain t ame e h olst. The testimony of these witnesses cannot be bruhed asde erely o the gIOund that they are interested Wimésses ei d er e bng closely relate to each oth. The pmsence of thes wneses a t scene of occurrence is natural a the incident tok place in &on of teir house and they had also sustained inn‘is during the occurrence. Their tesu'mony that i was the aellant Cu, ho had caused the stab injuly on the chest of a by a upti has stood th test of cross-examination an‘ Wolly unrebutted. The evidence of these Witness clar oes to show that th occurrenc had taken place at the hous o Dhangra PW-8. The spo map Ex.P—7 ared by the Pwar R ROOp Giri —S clearly show that the house of th apellant Chamru is situated about 50 meters away h‘om th huse of Dhangra PW—8 and also across the road on the oter side. This clearly indicates that the ngh was sted by th apellant and his relatives and tey were the aggr’essors. T nature of injuries sustained by the decease, Dhanralam P—l, rbdia PW—, Tlashi PW—lO and Dhang‘a PW-8 have ben proved by Dr. Rajput PW-ll which is ao suggestive of the fac that the appellant Chamru was the aggressor. The teiny of Dhanaram PW-l, Sukhmania PW-2, Thi PW-lO a Dhangra PW-8 also hows that when Dhanpal had dealt a th amu la lai blow to Kna, he fell down and thereafter the appelnt mru had stabbed Kamuna by a gupti in the chest. The fact tht te appellant Caru’along with his family nembershad go o the hoe of Dhangra PW-8 and also the fact that the L, ape also sustained injuries whie clearly goes to sow th te ppllat susted injury at about he s time. Threfore, the hnding of the learned ial Judge that the appellant and his relatives were the aggressors and that the Gappella‘ntr Chamru had caused the death of Kamuna by /_ stabbing him with a Gupti is wellvfounded. c/i/f/ \ \ \ fg s £ m n ! ely g e e The only questlon wh1ch remams for our con51deratlon 1s whether l the oii'encs commltted by the appellant Chamrll does not travol bcyond sccuon-304 Part-II of the I P C In the case of iMahesh Balmiki alias Manna Vs. State ofMadhya Pradesh, 2000 s.c.c’. Crtnana 17s, the appeuam had asked the deceased to come to a specihed place. On reaching there the appellant and deceased had an exchange of hot words. {I‘hereupon three assoc1ates of appellant caught hold of the xdeeeased and the appellant gave a smgle blow w1th kmfe on the chest on the left s1de of the sternum between the costal Jomt of ‘ the 6th and 7th ribs, fracturing both the ribs. ’Lrack of the wound ;we1{t through‘the sternum, pen'cardinm,3anterior’ and posten'or after passing ‘the ribs and thereafter entering the liver and perforating a portion of stomach. Total depth of :the wound was 19 c.m. and' the direction of track was going downwards iposteriorly. The deceased succumbed to the injun'es. It was held ithat the requirements of Exception—4 to section-300 of the I.P.C. §were not satisfied and on facts, it was held that the offence was icovered by clause fourthly of section—300 and therefore, i conviction under section-302 of the I.P.C. was justified. 10. There is no principle that in all cases of a single blow Section— 302 IP C 1s not attracted A smgle blow may, 1n some cases, entail conv1ct10n under section—302 IPC in some cases under Section-304 IPC and 1n some other cases un‘aer Section—326 3 IPC. The question with regard to the nature of onence has to be determined on the facts and in the circumstances of each case, The nature of the injury,whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury’is‘caused and the manner ill/which the injury is inilicted are all relevant facts which may go to determine the ‘ required intention or knowledge of the offender and the offence committed by him. In the present case the impact of the single : t ‘ blow with the Gupti has been disastrous. Therefore, it cannot 11. gbe said that the appellant had not taken undue advantage or Enot actsd in a cruel or unusual manner. v‘ G Considering the manner of assault by the appellant by a Gupti on the chest of Kamuna, in our well considered opinion the requisite intenn'on for causing the death of kamuna could b attributed to the appellant Chamru because Kamuna on receiving a lathi blow, had fallen on the ground and thereafter I the appellant had stabbed Kamuna on the chest by a gupti with such force that it pierced through the left ventricle as well as the right ventricle instantaneously causing the death of Kafnuna. It is thus established beyond doubt that-the appellant and other co:accused were the aggressors and went to the house of Dhangra and started the fight in which the Dhangra ‘PW—8, Narbadia PW-9, Dhanaram PW-l and Talashi PW—lO sustained injuries and during this nght when Kamuna had ‘ fallen to the ground, the appellant Chamru caused a stab injury on the chest of Kamuna by a Gupti with such force that it pierced the heart from the right ventricle to the left venuicle. The manner in which the appellant acted while assaulting Kamuna by a Gupti in the chest, is su$cient, in our well considered opinion, to attribute the requisite intention to the appellant for causing the death of Kamuna. It is thus clear that the appellant intended to cause the death of Kamuna and in pursuance thereof had caused the fatal blow§on the chest of kamuna, which resulted in instantaneous death. The manner in which the appellant acted clearly takes his act out of the ambit of exception—1 8a exception-2 to section—300 of the I.P.C. After receiving a lathi blow on the head, Kamuna had fallen to the ground and there was absolutely no threat or danger to the person or life of the appellant Chamru. Therefore, no right of private defence, accrued .to the appellant atvthis juncture. Therefore, we are of the considered opinion that the conviction of the appellant Chamru under section-302 of the I.P.C. and hex e #fhe sentence awarded thereunder is well founded and calls for E110 interference. So far as the conviction of the appellént for onence under secu'on—323 of the IPC and the sentence ‘awalded thereunder for voluntarily causmg hurt to Talashi PW 10 ls concerned 1t 1s based on cogent and rehable ev1dence and 1s maintained 1‘ 1 i ; f In the ultimate analysis there is no substance in this appeal I Kw‘hich 1s accordingly disrmssed The surety bond and personal J ;bond furmshed by the appellant Chamru are cancelled lforthwith. He shall surrender before the Chief Judicial Sarguja at Ambikapur on 08-09-2005 for ‘ Magistrate, l undergoing sentence. l Sdl- Sdl- 7 DlIlp Raosaheb Deshmukh V.K. Shrivastava i Judge Judge l 33, -08-2005 2‘s -08-2005