@ HIGH COURT OF CHHATTISGARH BILASPUR ~**—l——_ CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha J. m Ciiminal Appeal No. 219 of 2004 Manaru ‘r Vs. State of Chhattisgarh JUDGMENT For considiration sul- Sunil Kumar Sinh Judge v _ /. HON’BLE SHRI JUSTICE RAJEEV GUPTA 3 (Wtsw Chiei Justice .i /J .\/ PastforJudgment :/ /02/2009 Sdl- # Sunil Kumar Sinha Judge 1 ‘ a V’\¥ / @ HIGH COURT OF CHHATTISGARH, BILASPUR (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Ku. Nirupama Bajpai, C'ounsel for the appellant. Shri U.N.S. Deo, Govt. Advocate, for the State. JUDGMENT ()3 92.2009) Following judment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Manaru stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 131/2003 on 2.1 .2004. (2) The case of the prosecution is that on 5.1 .2003 at about 4.00 p.m., the deceased namely Bhonduram has gone to the house of Gobru (PW- 1) for purchasing fish. The appellant also came there and started saying the deceased that “Why he calls him Biaha (an insane person) ?” The g CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 219 of 2004 APPELLANT Manaru S/o. Chaituram Muria, Aged about ‘r 30 years, Occupation Agriculture, R/o VilI. Khorsanar, P.S. Mardapal, Distt. Bastar (C.G.) v: §7 Versus RESPONDENT ‘ State of Chhattisgarh, Through — “ Police Station Mardapai, Distt. Bastar (C.G.) ‘ 2 @ Criminal Appeal No. 219 of 2004 appellant further added that “He was saying him Biaha on the Iast Thursday also." Saying this, the appellant picked up one danda, which was Iying there, and gave assault on the head of the deceased. The deceased received injuries and died. The incident was witnessed by ' Gobrti (PW—1) and wife ofthe deceased namely Limdai (PW-6). (3) iGobru (PW-1) reported the matter to the concerned police station on 6.i1.2003, on which, a First information Report (Ex.-P/8) was registered. The Investigating Officer reached to the scene of occurrence on the same day, gave notice (Ex.:P/9) to the Panchas and prepared inquestV(:§x.-P/10) on the body of the deceased. Plain soil and blood stained soil were‘seized from the place of occurrence under Ex.-P/3. Danda was seized from the possession of the appellant under Ex.-P/4. The dead‘body of the deceased was sent for its post-mortem to PNT Hospital, Kondagaon under Ex.—P/6-A, where the post-mortem examination was conducted by Dr. R.K. Singh (PW-5), who prepared his report Ex.-P/6. He noticed that there was a lacerated wound on the occipital lobe and there was an abrasion on the left shoulder and another abrasion was also present near the neck. On internal examination, he found that there was fracture of occipital lobe admeasuring 6 cm x 4 cm x 3 cm. The Autopsy Surgeon opined that the cause of death was head injury, fracture and excessive bleeding and it was homicidal in nature. (4) ln further investigation, the seized articles were sent of their chemical examination to Forensic Science Laboratory, Raipur under Ex.- P/14, from where a report Ex.-P/15 was obtained. According to the F.S.L. report, blood stains were found on all the articles including danda, except the plain soil. (5) After completion of usual investigation, the charge—sheet was filed in the Court of Judicial Magistrate, First Class, Kondagaon, who in turn, committed the matter to the Court of Sessions Judge, Bastar at Jagdalpur, where the trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. 3 2/ Criminal Appeal No. 219 of 2004 (6) The conviction of the appellant is based upon the sole testimony of Limdai (PW-6) supported by the medical evidence and other documentary evidence available on record. (7)i Ku. Nirupama Bajpai, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of‘Limdai (PW-6) that the'deceased was assaulted by the appellant by a danda due to which he died on the spot Itself The above eVIdence of PW 6 is supported by the eVIdence of Dr R K Singh (PW-5) who noticed the above Injuries on the body of the deceased and ultimately opined that the cause of death was head injury, fracture and excessive bleeding and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. l (8) Ku. Nirupama Bajpai has also not'disputed the involvement of the, appellant in crime in question. She has only argued that the manner in which the appellant assaulted the deceased would show that he was having no intention to kill the deceased, therefore, the act of the appellant would not be punishable u/s 302 IPC and it would be punishable under 'some lessor Section preferably under Part-ll of Section 304 IPC. She took us to the evidence of wife of the deceased saying that a single blow ”was caused by the appellant to the deceased and it was not premeditated. Even the appellant had gone to the house of Gobru (PW-1) unarmed and he, all of a sudden, assaulted the deceased by picking a danda, which was lying at the scene of occurrence itself. (9) On the other hand, learned counsel for the State opposed these arguments and supported the judgment passed by the Sessions Court. (10) We have heard the learned counsel for the parties at length and , have also perused the records of the sessions case. .1 (11’) PW-6, Limdai, deposed that “On the fateful day at about 4.00 p.m., / / her husband had gone to the house of Gobru (PW-1) for purchasing fish. Her younger daughter, aged about 4' years, had also gone with him. l / , Z / 4 2.2 Criminal Appeal No. 219 of 2004 When she heard commotion from the house of Gobru she immediately rushed there and started resustlng the appeliant from causmg assault to her husband On this the appellant said to assauit her also Her husband was assaulted by the appellant.” The case of the prosecution is that the apRellant came to the place of occurrence without any weapon, and firstly, he started saying to the deceased as to why he was saying him Bia;ha (an insane person) and after this, he picked up a danda, which was lying on the place of occurrence, and gave a blow on the head of the deceased, which proved fatal to him. All this would show that the appellant was having no intention to cause the death of the deceased and the assault given to the deceased was not premeditated. It appears that on a petty matter, all of a sudden, without any premeditation or preparation, the appellant gave the said assault to the deceased, due to which, he died. However, the act of the appellant would show that he was having knowledge that his such act may'cause death of the deceased or it may cause such bodily injury to him which was likely to cause death of the deceased. (12) Section 304 IPC draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the HExceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 applies where 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 part of Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the fve Exceptions to Section 300 which include death caused while deprived of power of self-control under grave and sudden / provocation while exercrsmg in good faith the right of private defence of / person or property, and in a sudden fight in the heat of passmn Without l premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular l / / Criminal Appeal N0. 219 of 2004 consequence should ensure. For attracting the former part of Section 304‘, an element of intention is a factor whereas for attracting the Iater part, an eiement of knowledge is a factor. (13)‘ Since we have held that the intention of the appeilant was lacking in this case and the evidence of his knowledge was writ large on record, ther‘efore, we are of the considered view that the act of the appellant would be punishable u/s 304 Part-ll ofthe IPC. (14) Accordingly, the appeal is p‘artly allowed. (1 5) wTfhe conviction and sentenCe awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part-ll IPC and sentenced to undergo rigorous imprisonment for 8 years. The appellant is in jail since 6.1.2003. He shall be entitled to set-off the period already 'atti i undergone by him. Sd/- Sdl- V‘ Sunil Kumar Sinha Chief Justice Judge