HIGH COURT OFCHHATTISGARH. BILASPUR w CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Prashant Kumar Mishra. J J. Criminal Appeal No. 68 of 2004 Suresh Ram Vs. State of Chhattisgarh JUDGMENT For consideration -A Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICEPRASHANT KUMAR MISHRA A^t- jL ^t^^^ p,ashantKumarMistaa Judge Post for Judgment : rl?/06/201 1 Sd/- Sunil Kumar Sinha Judge ^.^^^' HIGH COURT OFCHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Prashant Kumar Mishra. J J. APPELLANT RESPONDENT Criminal Appeal No. 68 of 2004 Suresh Ram S/o Keshav Ram, Age 44 years, Occupation- Labourer, R/o Pakri Kachhar, P.S. Narainpur, District Jashpur (C.G.) Versus State of Chhattisgarh Through S.H.O., P.S. Narainpur, District Jashpur (C.G.) (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure. 19731 Appearance: None for the appellant. Mr. D.K. Gwalre,Govt. Advocate for the State. JUDGMENT (2.5.06.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 19th of November, 2003 passed in Sessions Trial No. 53/2003 by the Sessions Judge, Jashpur, District Jashpur (C.G.). By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced toundergo R.l. for life and to pay fine of Rs.1,000/-, in default to further undergo R.l. for 1 month. itf®^ ^Gi.^^ ^^y €. Criminal Appeal No. 68 of2004 (2) The facts, briefly stated, are as under:- Deceased- Sumiti Bai was wife of the appellant. The allegations are that on 18.5.2003 at about 7.00 p.m., the appellant assaulted the deceased by a lathi. This was witnessed by Roongi Bai @ Loongi Bai (PW-2) and Dhiyanuram (PW-4). The deceased also made oral dying declaration before her brother- Jeevanram (PW-1). The deceased died at about 11.00p.m. Jeevanram (PW-1) lodged the First Information Report (Ex.-P/1) on the next day i.e. on 19.5.2003. The Investigation Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Community Health Center, Kunkuri vide requisition Ex.-P/14. The post-mortem examination was conducted by Dr.(Smt.) K. Kujur (PW-7). She noticed 2 contusions of5 cm x 1 cm and 3 cmx2 cm on the frontal region of the skull of the deceased. One of them was superficial, however, beneath the other she found fracture of right fronto- parietal bone. Sheopined that the cause of death was haemorrhage and shock due to fracture of skull bone and it was homicidal in nature. The post-mortem report is Ex.-P/15. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-P/7) u/s 27 of the Evidence Act was recorded and a danda was seized at his instance vide Ex.-P/S. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Raipur, but the F.S.L. report could not be filed. After completion of usual investigation, the charge-sheet was filed in the Court ofJudicial Magistrate First Class, Jashpur, who in turn committed the matter to the Sessions Court, Jashpur, where the trial was conducted and the appellant was convicted and sentenced as aforementioned. tr L Criminal Appeal No. 68 of2004 (3) We have perused the records of the Sessions Court and have also heard Mr. D.K. Gwalre, learned Govt. Advocate. Mr. Gwalre has supported the judgment and finding recorded by the Sessions Court. (4) A perusal of the evidence of Roongi Bai @ Loongi Bai(PW-2) and Dhiyanuram (PW-4) would show that it was the appellant who assaulted his wife by a lathi in the evening of 18.5.2003. It comes in the evidence that the appellant was not feeling well, therefore, he assaulted his wife when she was doing some domestic work. According to the post-mortem report (Ex.-P/15), the deceased sustained 2 contusions and she also sustained a fracture beneath one of them. Dr.(Smt.) K. Kujur (PW-7) has categorically deposed that the death of the deceased was homicidal in nature. Therefore, in the above facts and circumstances, we do not find any infirmity in the judgment and finding recorded by the Sessions Court that the deceased was assaulted by the appellant and she died homicidal death. (5) Now we shall examine the matter in light of the provisions of Section 302 vis-a-vis Section 304 IPC. (6) Section 304 IPC provides punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be jnflicted 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 Exceptions 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 Cruninal Appeal No. 68 of2004 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 partof Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness whichattributes to be well informed that a particular result may happen by doing a thing. (7) If we examine the present case in light of the above principles, it would appear that the appellant was having no intention to commit murder of his wife (deceased). The case of the prosecution is that when the deceased was doing some domestic work, the appellant came there and assaulted her by a danda. One small danda of about 3 feet having round thickness of about 5 inch was seized. This was a common article which is ordinarily kept by villagers. Therefore, it does not appear that there was a preparation or pre-meditation on the part of the appellant to commit murder of his wife (deceased). The incident took place at about 7.00 p.m., whereas the deceased died at about 11.00 p.m. In between ^y"'^ 'x & ^SSh 1 ^^^-.-•^ ^ ^^. 'w;^i'" -^ Criminal Appeal No. 68 of2004 this period no medical assistance was given to the deceased. Even she was not shown to the Doctor prior to her death. In these circumstances we are unable to sustain the conviction of the appellant u/s 302 IPC and the same has to be set-aside. We are of the view that in the above facts and circumstances, though the intention to cause death was lacking, but the appellant can well be attributed with the knowledge and on this accoynt he would be liable for punishment under Part-11 of Section 304 IPC. (8) Accordingly, we partly allow the appeal and set-aside the conviction and sentences awarded to the appellant u/s 302 IPC. Instead thereof, the appellant is convicted u/s 304 Part-11 IPC and sentenced to the period already undergone which comes about more th"»n8 years in this matter. (9) The appellant is continuously in jail since 21.5.2003. He be released forthwith, jf not required in any other case. Sd/- Sunil Kumar Sinha Judge Sd/- Prashant Kumar Mishra Judge vatti r-