dP HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri RaieevGuDta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 1174 of 2003 Simna Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 Sd/- Chief Justice Post for Judgment :/2./11/2008 Sd/- SunilKumarSinha Judge L <S) HIGHCOURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 1174 of 2003 Simna S/o S^hara, Aged about 31 years, Caste- Pahadi Korwa, Occupation- AQriculturist, R/o Village- Jagimapara Kanjiya, P.8.- Shankargarh, District- Surguja (C.G.) Versus State of Chhattisgarh Through P.S. Shankargarh, District Surguja (Ambikapur) (C.G.) (Appeal under Section 374 (2) ofThe Code of Criminal Procedure) ABeearance: Mr. Abhay Tiwari, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (11.11.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant- Simna stands convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default of payment of fine to further undergo S.l. for one month, by the Sessions Judge, Surguja (Ambikapur) in Sessions Trial No. 69/2003 on 29.10.2003. (2) The facts, briefly stated, are that deceased- Dhulki Bai was the wife of the appellant. On 5.10.2002, they were rsturning to their house from a different village. Dhulki Bai was in drun;on condition. She abused the ^../ ^Esssff^' Criminal Aopeal No. 1174 of2003 appellant saying that he is a mad. The allegations are that on account of such conversation between the deceased and the appellant, the appellant took a green club and assaulted the deceased by the club. He also assaulted by hands and fists. Thereafter, they went to their house. Dhulki Bai died at about 11 in the night. The incident was witnessed by Lalji (PW- 8). The matter was reported to the police station by the brother of the deceased namely Saheba, on which, a First Information Report was registered vide Ex.-P/1. The Investigating Officer gave notice (Ex.-P/3) to the Panchas and prepared inquest (Ex.-P/4) on the body of the deceased. The dead body of the deceased was sent for its postmortem to P.H.C., Shankargarh vide Ex.-P/12, where the postmortem examination was conducted by Dr.(Smt.) J.Kujur (PW-5), who prepared her report Ex.-P/13. She noticed 6 contusions on different parts of the body of the deceased including the head. She also noticed an abrasion on the outer portion of the right eye. The Autopsy Surgeon opined that all the injuries were antemortem in nature and were caused by hard and rough object.She further opined that the cause of death was shock and hemorrhage due to multiple contusions and head injury and the death was homicidal in nature. (3) In further investigation, the memorandum of the appellant (Ex.-P/7) was recorded u/s 27 of the Evidence Act, in pursuance of which, a green Danda of26 inches length & 3 inches diameterwas seized at the instance of the appellant. The seized articles including the weapon were sent for their chemical examination to Forensic Science Laboratory, Raipur, from where a report Ex.-P/20 was obtained. According to the F.S.L. report, blood stains were found on the Danda seized at the instance of the appellant. © Criminal Appeal No. 1174 of2003 1. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who in turn committed the matter to the Court of Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (5) The conviction of the appellant is based upon the sole testimony of Lalji (PW-8) supported by the evidence of Dr.(Smt.) J. Kujur (PW-5) and the F.1. R. etc. (6) Mr. Abhay Tiwari, learned counsel for the appellant has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Lalji (PW-8) that the deceased was beaten by the appellant with a green Danda and she received above injuries. Dr.(Smt.) J. Kujur (PW-5) has also noticed 6 contusions on different parts of the body of the deceased including the head and on internal examination, she found subdural hemorrhage on the left portion of skull, where the clotted blood was present. She has categorically opined that the death of the deceased was homicidal in nature. Therefore, it is established that the death of the deceased was homicidal in nature. (7) In view of the evidence of PW-8, Lalji, Mr. Tiwari has not disputed the involvement of the appellant in crime in question. He has only argued that the facts and circumstances of the case would show that on account of abuse by the wife in drunken condition, the husband got provoked and picked up a green stick lying in the forest (at the place of incidence) and gave blows to the wife. Therefore, there was no intention, preparation or premeditation, as such, the act of the appellant would not travel beyond Section 304 Part-11 I.P.C. ^—1 Criminal Appeal No. 1174 of2003 (8) On the other hand, Mr. Praven Das, learned counsel for the State, opposed these arguments and supported the judgment passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (10) Section 304 IPC, which provides the punishment for culpable homicide not amounting to murder, draws a distinction between the penalty tobe 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 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 rightof 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 1'5-.;: •.'l-/:'ll;'j..'/;'' Criminal ADDeal No. 1174 of2003 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 doing a thing. (11) If we apply the above principles in the facts and circumstances of the present case, certainly, the case of the appellant would fall under Exception 4of S. 300 I.P.C. and the appellant would be liable for punishment u/s 304 Part-11 I.P.C. because the act was committedwithout premeditation in a sudden fight between the husband and the wife, in heat of passion without any intention and the appellant had also not taken any undue advantage or acted in a cruel or unusual manner. There was no fracture, the appellant was unarmed, when he was abused by wife, he took a green stick, which was lying at the place of occurrence itself and gave beating to the wife. 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 cause death. (12) In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 I.P.C. are set aside. Instead, the appellant is convicted u/s 304 Part-11 I.P.C. and sentenced to undergo rigorous imprisonment for 8 years. It is stated that the appellant is in jail since 7.10.2002. He shall be entitled to set-off the period already undergoneby him. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti