^sl^'-t '^S^'^/'/}<?• ^SiiaaS^^' Ij -•;•,-<. HIGHCOURT OF CHHATTISGARH. BILASPfitt CORAM: Hon'bleShriSunil KumarSinha & Hon'bleShnPritinkerDiWaker.JJ, CriminalADDeal No. 481 of 2007 Ganesh Ram Vs. State ofChhattisgarh JUDGMENT For consideration Sd/- sunilKumarSinha Judge HON'BLE SHRI JUSTICE PRITlNKERDIWAKER Sd/- Pritinker Diwaker Judge Judgment ://i/05il0ll w. 9 ^.11 ,•1*";; ^A : ':•>-- ;•' ^:..» HIGH COURT OF CHHATTISGARH. BILASPUL CORAM: Hon'bleShri Sunil KumarSinha & Hon'ble Shri Pritinker Diwaker. J J. APPELLANT RESPONDENT Criminal Appeal No. 481 of 2007 Ganesh Ram, son of Murit Ram, aged about 36 ye.ars, resident of Village- Ringni, Police Station- Sheorinarayan, District- Janjgir- Champa (C.G.) Versus State of Chhattisgarh, through District Magistrate, Janjgir, District Janjgir-Champa(C.G.) ; (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure) ApDearance: Mr. Awadh Tripathi, Advoeatefortheappellant. Mr. D.K. Gwalre, Govt. Advocate forthe State. JUDGMENT (If .05.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the Judgment dated 27 bf April, 2007 passed in Sessions Trial No. 138/2006 by the Additional Sessions Judge, Janjgir, District Janjgir-Champa, C.G. By tt^e impugned judgment, the appellanl: has been convicted u/s 3021^0 and sentenced to undergojmprisonment for lifeand to pay fin^ Ipf Rs.1,000/-with defaultsentenGeofR.l.forS months. >^-^—-.—.._. — . "%E ff te;'^ l:::-;.s" ^.y'" Criminal ADpeal No. 481 of 2007 .:t (2) The facts, briefly stated, are as under:- Deceased- Khikhram was the elder brother of the appellant. On 25.1.2006at about 11-11.30 a.m.Khikhram (deceased), Shanti Bai (PW-4—wife of the deceased) and Ramfal (PW-1 - son ofthedeceased) were loading paddyon a tractor. Theallegations are that the appellant came there, abused the deceased, elaimed partition in the paddy, and said that he will not allow to take entire paddy. The deeeased obstructed to it. The appellant threatened the deceased|and thereafter assaulted him by a teng/a on his head. The deceased himself went to the policestation and lodged the First Information Report (Ex.-P/19). The ease was registered u/ss 294, 506 Part-11 &323 IPC. THe deeeased was sent to the hospital, where he was examjned by the Doctor who found lacerated wound of 3 cmx4 cm on the leftside ofthe parjetal bone. Therewas another laceration below the left elbowjoint and there was swelling pn the left thumb. The injury repctrt is Ex.-P/13. The Doctor advised forX-ray examination. Aftenthe preliminary treatment, he came back to his house. He 'ifl/as getting treatment in his house. On 30.1.2006 at about 4.30 p.m. when he returned to his house on a bicycle, he.felt severe pain in the head. A vehide wasarranged and he was taken to the hospital, where he was declared d^ad. Information was sent to the police. The Investjgation Officer came to thehospital, gave notiGe;(Ex.-P/7)tothe/:>a/?c/7as|ancl prepared inquest(Ex.-P/8) on thedead bodypfthe deeeased. The dead body was sent fbr post-mortem to Gov^mnjlent Hospital (Dispensary), Sh^orinarayan. The post-mortem rS^prt is EK.-P/11. The Autopsy Surgeon opined that the eaus^ death was head injury ,and extra-dural haematorriia lonl head and itwas homicidal in nature. 0$ •-t" . -.^. Criminal Appeal No. 481 of 2007 The learned Sessions Judge relied on the testimonies of Ramfal (PW-1), Shanti Bai (PW-4) and Samaylal (PW-8) who deposed that the deceased was assaulted by the appellant by a tangia. Therefore, the appellant was convicted and sentenced in the above manner. (3) Mr. Awadh Tripathi, learned counse^ appearing on behalf of the appellant, has not disputed the homicidaldeath of the deceased. He argued that on account oftaking of paddy a suddenquarrel took place between 2 brothers; in the said quarrel, at spur ofmoment, in heat of passion, the appellant gavesingle blow tp the deceased; the deceased died after 4 days; he was not admitted in the hospital; he was taking his own treatment and was moving throughouton bicycle; therefore,in the facts andcircumstances ofthecase, an offence u/s 302 IPC would not bemade out and the appellant would be liable for punishment undersome lesserSectionpreferably Part- llofSection3041PC. (4) On the other hand, Mr. D.K. Gwalre, learned Govt. Advocate appearing on behalf of the State.opposed thesearguments|and supported the judgment passed by the SessionsCourt. (5)~ We have heard learnedcounsel for the parties at lengthjand have also perused the records of the sessions case. (6) Admittedly, the deeeased was real brother of the aRpellartt. ;cording to the evidenceof Ramfal (RW-1 - son of the deGea^dl), A; ;:lli:^ Criminal Appeal No. 481 of 2007 ^ the appellant came to the place where the deceased and his family members were loading paddy on a tractor, andasked for partition of the paddy crop. On this, the deceased replied that the appellant had already taken partitionand this crop was exclusively sown by him, therefore, he will not give any partition to the appellant. It is on this event, aquarrel begun between the 2 brothers and the appeltant assaulted the deceased by a tangia. We note that the deceased himself lodged the F.I.R. (Ex.-P/19)and firstly offence u/ss 294,506 Part-11 and 323 IPC wasregistered. Itfurther comes in the evidence of Ramfal (PW-1) that the decegsed was ne^er adnriitted in the hospital after his preliminary treatment. He returned baek and for about last 4-5 days, used to travel on the bicycle and perform his all work. It ison 30.1.2006 when the deeeased returned from some plaee on bicycle, he felt severe pain in the head and thereaftejr he 1 died.It isa case in which the appellant did not use the sharppdrtion of the (a/7SI/a. Had th®r® been an intention ofthe appellanttocommit murder of the deceased, the appellantwould haveused its sharp portion. The appellant also didnot assaultthe deceased at onc^l as firstly he demahded partitionin the paddy^crof) and when thes^me was denied, he abused the deceased and after some alt^regfiQiil between them, the appellant gave a single blow to the dece from the blunt side of the teng/a; The appellant did n0t cl&B-e-ase-iK; blow. The blow eaused tyeaboveinjuFy; The//-.••-" ^'i^"'w m ^-~-y° A l? tf CriminalADDeal No. 481 of 2007 days and in between this period he was doing his usual work by using'a bicycle in normal manner. (7) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. Itdraws a distinction between the penalty to be inflicted in cases.where, an intention to kill being present, the actwould haveamounted to murder, but forits having fallen within one 6f the Exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, wherethere is knowledge that death will be a likely result, but theintention to cause death, or bodily injury likelyto cause death, is absent. Thefirst part of Section 304 applieswhere there'is intention, whereas the second _ part applies where there is knowledge but the important thing is that before holding the accused guilty under any partofSection304, it has to be observed that|a death must have been causedby him under anyof the circumstances mentioned in the five Exceptions toSection 3QO, which include deathcaused while deprived of power of self-cQntitcjl ! under grave and sudden provocation, while exercising in good fa|| the right of private defence of person or property, and in a sudd^|| fight in the heat of passion without premeditation. Know|ed|g^||)| consequences which may result in doing anact is quitetliff^i^|| difiill than the intention which denotes that ai partieular eonsequ|gjtli3;| should ensure. For attracting tlie form|r|part of Seeti6i[ii^30|, ^fli li'^l;'l .•» BUii '•& "^. v^ -.t a 'v—f/3 Criminal ADpealNo. 481 of2007 element ofintentionis a faetor whereasforattracting the later part, an element of knowledge is a factor. (8) If we apply the above principles in the facts and circumstances ofthe case on hand, certainlythe case of theappellant would fall under Exception 4 of S. 300 IPCand the appellant wouldbe liable for punishment u/s 304 Part-11 IPC because the act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without any intentionand the appellant had also not taken anyundueadvantageoractedin acruel qr unusual manner. But the act of the appellant attributes his knowledge that it is likely to cause death or to cause such bodily injury as is likely to cayse death. (9) For the foregoing reasohs, the appeal is partly allowed. The conviction and sentences awarded ta the appellant u/s302 IPC are set-aside. Instead, the appellant is convicted u/s 304 Part-IIIPC ahd sentenced to the period already undergone which comes abdut more than 5 years,3 months (without remission) in this matter. fThe appellant is in jail. He be released forthwith, if not required in othercase. sny Sd/- SunU Kumar Sinha Judge Sd/- . Pritinker Diwaker Judge i::[l:il:^ II 31 l^il'ffis ^ Ef^i. !!Hiii!! lilijj