HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 577 of 2005 Ramlakhan Korwa Vs. State of Chhattisgarh JUDGMENT For consi^eration sd/- Sunil Kumar Sinha Judge ^ HON'BLE SHRI JUSTICE RAJEEV GUPTA ^ ^ Sd/- Chief Justice Post for JudgmentjH/Q2/2QQa_ Sd/- Sunil Kumar Sinha Judge c ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: APPELLANT RESPONDENT Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 577 of 2005 Ramlakhan Korwa, S/o Jarban Korwa, aged about 31 years, Occupation- Agriculture/Labour, R/o Aasanpani, Village- Jokpaat, P.S. Shankargarh, District- Surguja (C.G.) Versus State of Chhattisgarh Through Police Station- Shankargarh, District Surguja (Appeal under Section 374 (21 ofThe Code of Criminal Procedurel Appearance: Shri Abhay Tiwari, Counsel for the appellant. Shri Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (Z7-.02.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Ramlakhan Korwa stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Surguja (Ambikapur) in Sessions Trial No. 473/2004 on 5.7.2005. (2) Appellant Ramlakhan was the son-in-law of deceased Rengsa Korwa. The allegations are that on 22.7.2004 at about 4.00 p.m., he assaulted the deceased with a tangia. The assault was witnessed by Smt. Tekde Bai (PW-7). When the wife of the deceased namely Smt. Jatri Bai (PW-6) came in the evening, the story was narrated to her. (3) Smt. Jatri Bai (PW-6) lodged the First Information Report (Ex.-P/12) in the concerned police station, on which, an offence u/s 324 IPC was in- [c Criminal Appeal No. 577 of2005 registered. The deceased was sent for his medical examination to Primary Health Centre, Shankargarh under Ex.-P/20, where he was examined by Dr. N.L. Bhuaarya (PW-1), who gave his report Ex.-P/1. According to the M.L.C. report, the deceased had received one incised wound, size 2 1/2 inch x 1/2 inch on the right parietal region. The Doctor opined that the nature of injury shall be determined after X-ray examination. The deceased was referred to the District1 Hospital, Ambikapur under Ex.-P/2. He was admitted in the District Hospital, where he died on 27.7.2004 during his treatment. The information of the death was given to the police under Ex.-P/19. The concerned Officer after giving notice (Ex.-P/S) to the Panchas, prepared inquest (Ex.-P/9) on the dead body of the deceased and sent it for post-mortem to Govt. Hospital, Ambikapur under Ex.-P/10, where the post-mortem examination was conducted by Dr. Faizul Firdoshi (PW-10), who prepared his report Ex.- P/13. He noticed that defused blood was present over the right temporal region of scalp and there was a linear fracture over right temporal bone, size 6 inch x Vi inch. Sub-dural haemorrhage with blood clots were present all over cerebral hemispheres and there was an incised wound, size 1 inch x Vz inch x brain deep on the right temporal region, The Autopsy Surgeon opined that the cause of death was head injury and it was homicidal in nature. (4) In further investigation, memorandum (Ex.-PM) of the appellant u/s 27 of the Evidence Act was recorded, in pursuance of which, a tangia was seized from the possession of the appellant under Ex.-P/5. The indoor patient ticket (bed-head ticket) of the deceased showing the treatment given to him in the hospital was also seized. (5) Seized tangia was sent for its chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/17, from where a report Ex.-P/21 was obtained. According to the F.S.L. report, blood was found on the tangia butthe origin and group of the blood could not be determined for the reasons stated in Ex.-P/22. (6) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Ambikapur, who in turn, / Criminal Appeal No. 577 of 2005 committed the matter to the Court of Sessions Judge, Surguja (Abmbikapur), where the trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. (7) Shri Abhay Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in crime in question. Moreover, it comes in the evidence of Smt. Tekde Bai (PW-7) that the deceased was assaulted by the appellant with a tangia on his head,due to which, he became unconscious. The evidence of this witness is corroborated by the evidence of Dr. N.L. Bhuaarya (PW-1), who conducted the MLC examination and found one incised wound on the right parietal region of the deceased. The Autopsy Surgeon, Dr. Faizul Firdoshi (PW-10), also noted the above injuries and found that there was fracture of right temporal bone. The cause of death was head injury and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. ..-^ ^ (8) Shri Abhay Tiwari has mainly argued that the manner in which the appellant caused single blow over the skull of the deceased would show that it was not premeditated and the same was not given with an intention to cause death of the deceased. The deceased died after 5 days during the course of treatment, therefore, the act of the appellant was punishable under some lessor Section than 302 IPC, preferably u/s 304 Part-11 IPC. (9) On the other hand, Shri Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment and order 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. (11) Admittedly, the deceased was the father-in-law of the appellant. On the date of incident both were present in the house of the deceased and Criminal Appeal No. 577 of2005 the wife of the deceased namely Smt. Jatri Bai (PW-6) had gone out for labour work. As per version of PW-7, Smt. Tekde Bai, firstly the deceased came to her house, then the appellant also came there with a tangia in his hands and assaulted the deceased on his head. Though, she stated that 2 blows were given to the deceased, one on the head and other on the back, but the Doctor could note only one injury on the head. PW-6, Smt. Jatri Bai, deposed that she was told by PW-7 that the appellant was demanding money from her husband (deceased) and had assaulted him in the manner stated above. This shows that on a petty matter, the quarrel begun between the appellant and the deceased, on which,the appellant gave single blow on thehead of the deceased and ran away from the place of occurrence. Firstly, the offence was registered u/s 324 IPC and the deceased was admitted in the hospital, where he died after 5 days. Therefore, it is clear that in the above manner, in the heat of passion, the appellant assaulted the deceased without any premeditation, due to which, he sustained single injury on his head and died during the course of treatment. This shows that there was no intention of the appellant to cause death of the deceased but at the same time, the knowledge of the appellant can well be attributed that his such act was likely to cause death or to cause such bodily injury to the deceased which was likely to cause his death. (12) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. It 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 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 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 thecircumstances mentioned in the five Exceptions to Section 300, which include death Criminal Apneal No. 577 of 2005 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. (13) Since the intention is lacking in the matter but the knowledge is writ large on record, therefore, we are of the considered view that the act of the appellant would be punishable u/s 304 Part-11 IPC as it appears that on some petty quarrel, in the heat of passion, the appellant gave single blow to the deceased, without any premeditation, and he has also not taken any undue advantage or acted in a cruel or unusual manner, resulting into death ofthe deceased after 5 days. IN^ (14) Therefore, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant is in jail since 16.8.2004. He shall be entitled to set-off the period already undergone by him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti