0. L7 L HIGH COURT OF CHHATTISGARH. BILASPUR c.J. & g CORAM: Hon'me Hbn’ble Shri Shri Raieev Sunil Kumar Gugta, Sinha, J. No. 288 of 1992 Criminal Aggeal Bharat aHas Bhartha I VS. of Madh’ya Pradesh ‘ State (Now Chhattisgarh) \ . {Q JUDGMENT For consideration o i (/n” Sdl- .z. Sunil Kumar Sinha 1‘ ‘ Judge m ’ HON’BLE’SHRI JUSTICE RAJEEV GUPTA \ ‘3 ‘ Chief Justice W ‘ > , 6: 6: f Chief *9 -/1 1/2008 Postfor Judgment;lorl/MI2Q03 / V I, Sd/- z $unii Kumar Sinha‘ Judge K 71171 1/2008 I W5 HIGH COURT OF CHHATTISGARHL BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. € Criminal Appeal No. 288 of 1992 APPELLANT Bharat alias Bhartha S/o Bholaram Dusad, aged 20 years R/o Wadafnagar, District Surguja (M.P.) (Now Chhattisgarh). Versus R‘EéPONDENT State of Madhaya Pradesh (Now Chhattisgarh) (Apbeal under Section 374 (2) of The Code of C’riminal Procedure) ® Appearance: Mr. J.S. Baraik, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (m.11.2ooa) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant-‘ Bharat; @ Bhartha stands convicted under Section 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge Ambikapur, District Surguja in Sessions Trial No. 164/1988 on 29‘“ of January, 1992. (2) The brief facts are that on 1.4.87 at about 5.00 p.m. Deoveer (since deceased) had gone to purchase paddy—straw in the house of one Amira and had taken his radio with him. At about 7.00 p.m., he returned to his house and said to his daughter, ParvvatiJhat appellant Bharat has taken his radio. After sometime, Bharat also reached to ix swiéf I '2 Criminal Appeal No. 288 of 1992 hous v, e of Deoveer but he was not carrying the radio, on which, a fight Bharat and deceased- Deoveer. Seeing all ‘\ begun between appellant— this, Parwatl (PW 8) called brothers of Bharat They came their and tried to pacify the quarrel When they were taking Bharat to his house appellant Bharat, all of a sudden, picked up one khalr club, which was lying there, and gave a blow on the head of Deoveer. Deoveer received injury on the head fell. down on the ground and died there. A Dehatmalishl (Ex P/6) was given by Ram Naresh ( Report (Ex —P/5) was registered which a First information fficer gave notice s and prepared inquest (Ex.-P/8) on the body y i of the deceased. He seized club, radio, slippers of the deceased and some other articles along with blood stained and plain soil from the place of occurrence under Ex.-P/10. Amon as per the Ser stained earth, cloth piece and the s postmorte PW—7), based on ‘b (3) ‘During the investigation, the investigating O (Ex.—PI8—A) to the Pancha g the above seized articles, ologist report (Ex.-P/22), human blood was found on hirt. The dead body was sent for m to Government Hospital, Wadafnagar vide Ex.-P/14-A. The postmortem examination was conducted by Dr K K Sen (PW—1 1), who prepared his report Ex -P/13 According to the postmortem report , d over right frontal region extending upto f there was a laCerated Woun voult, size 5 cm x 1/2 cm x bone deep and clotted blood was present dissection, he found a depressed fracture of right parietal bone He also noticed subdural and subarachoid hemorrhage beneath the site cause of death was coma due to iniu homicidal in nature. inside the wound. On of fracture The Autopsy Surgeon opined that the l ‘ ry over skull and brain and It was ;wk r1 @ Criminal Appeal No. 288 of 1992 (4) After completion of usual investigation, the charge-sheet was fiied in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the matter to the Court of Sessions Judge, Ambikapur, where the triai was conducted and the appellant was convicted and sentenced as aforementioned. (5) The conviction of the appeliant is based upon the sole testimony i ofithe daughter of the deceased namely— Parwati (PW-8) as the other eyewitnesses, cited by th’e prosecution, were either not examined or they did not support the case of prosecution. (£5 (6) Mr. J.S. Baraik, Iearned counsel for the appellant, has not disputed the homicidai death of the deceased. Moreover, it comes in the evidence of Dr. K.K. Sen (PW-11 )as also in the postmortem report that the deceased has sustained a depressed fracture of right parietal bone and the death was caused due to coma as a result of injury sustained over skull and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. f Jw' (7) Mr. Baraik then, argued that it was a case of single blow, which the appellant gave to the deceased in heat of passion, in a sudden 6‘ fight without premeditation and preparation, therefore, the act of the appellant would fall within the Exception of S. 300 IPC and it would not travel beyond S. 304 Part ii IPC. (8) The aboVeargumer'tts were opposed by learned counsel for the State. (9) We have heard the Iearned counsel for the parties at length and have also perused the records of the sessions case. Kn G 4 Criminal Apgeal No. 288 of 1992 (10) PW-8, Parwati, is the daughter of the deceased. She deposed that “the quarrel begun in their housevwhen her father Deoveer demanded his radio from appellant Bharat. On such demand of her father, appeitant Bharat said that he has left the radio in his house and even on repeated requests by her father when Bharat did not give his radio, the quarrel begun; When she saw all this, she went to the house of Bharat and oaiied his brother Munnar Shambhu and Pretam also came there. Munwa and Shambhu etc. were trying to take the apge‘llant to his house but the appellant ran at once, picked up a piece of wood‘and gave a blow on the head of her father due to which he fell down". 0n the evidence of PW-8, it is clear that on account of retaining of the radio of the deceased by the appellant, a fight begun between them and during the fight when the appellant was being taken by his brothers, all of a sudden, he picked up a piece of wood, which was lying in the house of the deceased itself, and gave single blow to the deceased, which proved fatal. Certainly, the appellant had gone to the house of the deceased unarmed and the facts and circumstances of the case would show that he was unprepared and in a sudden fight in the heat of passion without premeditation, he gave single blow to the deceased. we (11) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. lt 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 havmg fallen Within one of the Exceptions in Section 300, land cases in which the crime is culpable homicide not amouming to murder, that means, where there is l i s Criminal Appeal No. 288 of 1992 knowledge that death will be a likely result, but the inlentlon 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 here 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 five Exceptions to Section 300, which applies w inciude death caused while deprived of power of self-control under grave and sudden provocation while exercrsrng In good faith the right of private defence of person or property and in a sudden fight in the heat of passron Without premeditatron 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 domg of a thing to achieve a \ particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by I , rshHgwwa r“ a ‘lit i 5; l doing a thing. v ‘ i v'l (1 2) lf we apply the above principles in the facts and circumstances of the case on hand, certainly the case of the appellant would fall under Exception 4 of S. 300 IPC and the appellant would be liable for T Ar—eahsm—M“ m .MA Va a.” V. t, , A 3" I 1‘ { punishment uls 304 Part ll IPC because the act was committed without premeditation in a sudden fight in the heat of passmn upon a sudden quarrel without any intention and the appellant had also not taken any undue advantage Or acted in a cruel or unusual manner. But the act of ’ yggf ‘ vatti 6 . Criminal Appeal No. 288 of 1992 the appellant attributes his knowledge that it is likely to cause death or to cause such bodily injury as is likely to cauSe death. (13) Therefore, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, theiappellant isconvicted u/s 304 Part ll IPC. The appellant is on bail since 12.6.96 but he has already undergone the jail sentence of about 5 years & 3 months, therefore, he is sentenced to the period already undergone by him. 1 ’ i l W (14) His bail-bonds are discharged. v~e ‘ *” ”T . " ‘ ’7 Sdl / .. ,. Sd/- j " Elunii‘Kumar Sinha‘ Chief Justice l JUdge