sw CFOOOOOS2S44 CS) n^ Oivssion Bencfi (Iriniinai' IN THE HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) Criminal Appeal No. ^<fc iA /1999 APPELLAm' C%> 3o// J5- MM3-1- S.-^S.K&^ ...-A- M RESPONDENT .LAGAN SAI, S/o Shri Budi Rawat Aged about 55 years, Occupation- Agriculturist, R/o vlllage Rajpur, P.s. Lailunga Bist.rj.et- Raigarb (M.P.) VERSUS State of Madhya Pradesh, Through Pollce station Lailunga Olstrict- Ralgarh (M.P.) CRmiNAL APPEAL UNDER SECTION 374(2) OF CRIMIWAL PROCEDURE CODE. l !! :..H HIGH COURT OF- CHHAT-TISGARH : BIIASPUR CRIMINAL APPBAL N0. 284 OF 1999 •Laaaa sal Vs. ffi W-SSWS3SS State of Madhya Pradesh (aow Chbattis@u"h) JUDGMBNT ^^l^:si^S^^ "jL;"y";^^^ ^ HIGH COuRT Or CHHA-TTISuARH : BILfi.SpUR CRIMINAL APPEAL N0. 284 OF' 1999 Lagan sal Vs. State of Madhva Pradesh (now Chhattisgarh} ^' -!::i^'il^3'[i^^ Corain s- Hon'b'e Sfcri Faktttiiddifi & Hon'ble Shri Dhirendra Mlshra, JJ Ms. Sharmila Singhai, Advocate for the appeuant. Mr. Akhil Mishra, Panel Lav."/er for tihe State. JU D GM ENT Per Dhireadra Mishra, J Heard leamed coiinsel for the parties. gj. .»l.;«.»Si!Sg^ ^s* AppeUant Lagan Sai preterred Uiis appeal Irom pnson as he has been convicted bv the leamed Second Additional Sessions Judge, Raigarh in Sessions 'TTial No. 213/1997 vide his judgment dated 30m November, 1998 bv which leamed Second Aclctitional Hessions Judge atter holdmg ttie appeuant guUty ot causmg death of his son Ganeshrain has convicted hiai iinder Section 302 of I.P.C. and sentenced him to undergo unpnsonment tor tue. 3. T'he allegations against the appeUant are fhat on 7-9-1997 on the dav of festival Navakhai^ while celebration of festival was gouig on after taking liquor, appeuant's son Panchraia went to call fhe deceased for meals but instead of accoinpanyinR him, he ,'T sws se^ "^^£ conttnued to dance, as a resiut of wmch a scuftle took place between them and infuriated with fhis demeanour of the deceased, fhe appeUant assaulted him by a wooden plank over his head as a resiut of which he feU on the ground. He was taken inslde the house and subsequentlv taken to police station Lailunga on 8-9-1997 where complainant Bhawan lodged first information report at 10.00 -noon. Ganeshram was taken to Coinmunity Healtfa Centre, Lauiinga where Dr. S. N. Upadhyay P.W. 8 atter exammtnfi uanesnram declarea tum dead. On ttie Dasis ot intoniiaUon given, Htation House umcer recorcied Merg intim.ation. After performing fhe inquest of Ex. P-3 over the dead bodv, the bodv was sent for autopsy to Comm.unity Health Centre, Lauunga where Dr. S. N. Upadhvay P.W. 8 conducted post mortem and submitted his report of Ex. P-11. Earlier fhe offence was registered under Section 307 of I.P.C. however after the deafh of fhe deceased, fhe offence was converted into Section 302 of I.P.C. During investiganon, plain soil, blood stained soil and a piece of door franie stained wifh blood were taken into possession vide Ex. P-4. 'The wooden plank-weapon of offence was seized froni P.W. 2 Vrindavati vide Ex. P-5 and a wood plank was seizecl viae Kx. F-b was aiso seized. Bite map was prepared. vide Ex. P-7, Seized articles wooden plaak and piece of door Iraine were sent to Uie cloctor tor ms opmion regard.mg presence of blood vide Ex. P- 1'2-A and op.inion of the doctor is Ex. P-12 by which the doctor has aclvised tor chemical examtnatlon. Atter completing the mvestigation, chargesheet was filed in the Court d2) juaiciai Magistrate b'lrst ciass, unarstiocla wno ui tum committed fhe case to the Court of Session and the same was received on transfer for trial by learned Additional Sessions Judge. Leamed trial Court framed charge under Section 302 of I.P.C. against fhe appeUant who abjured his guilt. The prosecution tn order to establish the charges against fhe appellant examined 9 witnesses in ail and thereafter statement of accused under Section 313 bf CT.P.C. was recorded in which the appeuant denied the circumstances appearing against him in fhe prosecution case and pleaded innocence and false Lm.plication. However, leamed Additional Sessions Judge after hearing fhe Public Prosecutor and Counsel for fhe appeuant, convlcted and sentenced ftie appeuant as above. ^ 4. Hoinicidal deafh of fhe deceased Gaaeshram is not ia dispute. Even ofherwise froiii fhe stateiaent of P.w. 8 Dr. S.N. Upadhyay who conducted fhe post raortein and subniitted his report of Ex. P-11 and ui which he found one lacerated wound over fhe teinporal parietal reason in left side ineasuriiig 6 cin x 2 ^2 cm. x bone deep aad on uiterual examiaation, Iie has lound ]ine tiacture over skuU bone aad clotted biood under fhe wound aud Iias opiaed fhat f&e cause ot' tbe deafh ol fhe deceased was conuna due to head iajiuy, the hoxiiicidal deaui offhe deceased is established. 5. Learued counsel tbr Uie appeuant suDinlts fiiat froin perusal ot the evidence available on recorct, it would be evldent ftiat the uicldent tooK place suaaeuy ui a spur ot inoinent wnen Uie two sons ot ttie appeuaut, f&e deceased aiid PancJiram. were quarreuing. Stie furtGer submits uiat the allegation agaiast the appeuant is that he mtticted S; i?:9SS:!saS^g the siagle blow by a woodea plank as a result of which ftte deceased teu unconscious aD.d he died on me tollowiag day while he was being taken to bospital, aad therefore, in fhe aforesaid circumstaaces intention to cause deafh of fh.e deceased cannot be attributed to the appeuaat. Reliaace is placed on AIR 2004 SC 387 (Baedi Ram -v- state of MadJb.va, Pradesb') aad it is couteuded fhat fhe court below was not justified ia holdiug the appeUant giulty under Section 302 of l.P.C. as ia the lacts aad circumstances ol me case, fhe oltence does not travel beyond Secuon. 304 Part I of i.P.C. as fhe alleged offence comes within exception 4 ofSection 300 ofl.P.C. t>. Un tue ottier jiauu, learaea counsel lor ttie Ktate supports me judgDient. 7. We have heard fhe leamed counsel for fhe pardes. We have perused fiie record aad aiso the impugned judgm.ent. So far as the ^ iavolvement of the appellant in criiue in question is concemed, fhe prosecution has tried to establisb. the above lact by examiniag eye- witness P.W. 2 Vrindavati, wife of deceased who has stated that on Uie clate ol inciaen.t, t^ancnram. aad ner nusDaad were quarreling, at fhat tinie, her father-ia-law fhe present appeUant Lagan Sai assaulted Gaaeshraui on his head wifh a wooden plank, as a result ofwMch the blood started ooziag. Her faftier-ia-law started running wifh laad papers. Her husband becatne uaconscious. She tried to revive her nusoaaa by massagmg witn Kerosene ou. In ttie touowuig niormng, she along wifh. her inouier-iti-law, Jefh, fafh.er-in-]aw aad her lafher Ghasiram aad Kotwar Bhawan Siugh took fhe deceased to hospital where the doctor declared him dead. In uie cross-examiiiation, this wituess has adniitted fhat ou the day offestival, inen acid woiaen both had consumed Uquor. However, she has denied fhe suggestion uiat wlule her Jefh aad deceased were uivolved in the scuffie, fh.e deceased feU on ftie fraine of fhe door aad as a result of which he sustamed miury aad feU uiiconscious. She has categoricauy stated that the present appellant assaulted fhe dcceased with the wooden plauk. This witaess is duUy corroborated by the Stateinent of P.W. l Btiawaa Singh who has lodged me First Information Report in the poUce sfation and who has stated fh.at when he was retumiug from fhe house of Ganeshiam, he rn.et Lagan Sai on way near fhe tauk aau on being asked about fhe incident, he adinitted fhat ia fhe night he had consumed Uquor aad he had assaulted by a wooden plank. Simiiar is the statemeat of P.W. 3 Shvaru Lal who has also stated fhat he recognizes the accused. While he was sitting on his shop, Lagau Sai had told him fhat he had kiUed Nanld. Gaaesh is caUed Nanki in fhe viuage. Ttus witaess Jias also stated tliat wite ol GanesliraiB. had also ^ iuformed him fhat he assaulted by the wooden plank. The version of P.W. 2 Vnndavati finds corroboratLon troin statenient of P.w. 8 Dr. S.N. Upadhyay who has noticed correspondiug i&jury over the head of f&e deceased as also froin me first tuformation report iu which the appellaat has been named as perpetrator of the ofFence. Thus, from. ttie above evidence, we are ot ttie consiclerecl opmlon that ttie prosecuuon Jias been able to estaOiisn involvemeiit ol ttie appeUaat in ttie criine in question beyond reason.able doubt aad fhe leamed court below has not coiumltted any error or mfirmity iu lioldiag tlie appeuant guilty of causing deatti of Gaaeshram. 8. The second question to be decided ia fhis appeal is whether the court below was justified in convicting fhe appeUaat uiider Section 302 ofl.P.C. Froin ttie evidence available on record, we find that fhere was rio inotive attributed to the appeBaiit to kUl his own son.Though (£) 6 !t:: ..;-,;-::--.:-,^;E;=^:yg^fe ^ ^':?;^i<§';^^%^j3. ttte wue ot uie aeceased nameiy Vrmaavati &as stated ui tier deposition fhat after assauitmg the deceased, the appeUant started nuuung wifh laad records but fhe above portion of fhe stateiaent does not fiad place ia diaiy stateinent and ffae same is omission. The appeliant iuflicted a single blow by a wooden plaitk over the head of the deceased. There was no pre-ineditation, The incident took place ia a spur of laorttent Tjinder the heat of passion. We also noticed that wnen t&e deceasea was taKen tp jLiospital ou toUowing aay, Uie appeUaat accoiaparued ttie deceasecl to tfae potice station aad f&ereafter to tbe Uospitat. Tfius coasiclering tne evidence appeanng ixi the case, we are of t&e considered opuiion fliat uie ottence coiamittetl by the appellaxit does not travel beyond Section 304 Part I of I.P.C. and fhe court below was not justified iu convictin.g the appeUaat under Section 302 ofI.P.C. We are also fortified with the judgment in (f BagQi Kam fsupra). 9. In fhe result, the appeal preferrcd by fhe appellant is parfly atlowed. Conviction of fhe appeUant under Section 302 of l.P.C. is altered to one under yection au^ fart l ot l.^.sj 10. Coi.insel for the appeliaat submits fhat the appeUaat is iu jail siuce 9-9-1997 which is not disputed by fhe leamed counsel for the ytate. 11. Since the appeUaat is ia jail since 9-9-1997 aiid has undergone about 9 years ofjail seiitence, he is sentenced for the period already undergone by him. He shaU be set at Uberty forfhwith if not required in aay other case Appeal paj-Uy ayowea. Judge Sd/- DHIBENDRA MISHRA Judge