, . K, fxa ‘ 1 / CFooooo58737 msxou Bench (Cnmmai) 'IN Tm LIGH caURr or Mwwat FB’WW w JaBMFTTE’ 9 2". Samnoo ham son of J‘ujbarri Ram, agaci abcu y . l L / “m i yi‘age Dhaugurra, P.I. hanu Frqtapur District Basax / HEAL Na. 2(a) OF (A “ .: 19 / occupaylon abour, max m 21, yerars’, ll $ E t ’ V'e rsus omnmw m :- X m: mtg; of 31m C omric t ion g ( gmg ain ‘ f / ‘BJ. or lifey U/s 302 I.?.C. 6E_éi*imr\ m m: DU m ES §§ t f / ‘/ at ( . /‘ HIGH COURT OF CHHATTISGARH : BILASPUR CRIMINAL APPEAL-N0. 1235 OF 1992 { ooRa Vs. T S M Pr h he tate of adhya adesh (now State of ¢hattisgarln Di'ip Raosaet; l Dh ‘ I/ h eshmuk ] Judment for consideration Sd Judge os ‘ H i! ‘ Thw- moeo ) 1 ’ Sdl- Fakhrudti / VKT J Post for %o9-2oos ‘ i Sd/- ‘l Fakhruddin 1 I Judge 1 .mmr1 . Wm“ i nm \ Honble shri Justice Fakhruddin , /‘ { L P i‘gJ . ‘K; & HIGH COURT OF CHHATTISGARH : BILASPUR CRIMINAL APPMAIINO. 1235 OF 1992 Sannoo Ram Vs. The Stats of Madhya Pradesh (now State of Chhattisgarh) Corgm :« Hon’ble 8hri Fakhruddin, J & Hon’ble Shri Dillp Raosaheb Deshmukh, J Smt Kimn Jain, counsel for the appellant Shn Ash1sh Shukla Government Advocate/Add1hona1 Pubhc Prosecutor for the State 'JUDGMEN'I" (Delivered on 7/{0k‘18ept 2005) Per Dilip Raosaheb Deshmukh, J. 01. This appeal is directed against the judgment dated 4-1 1- 1992 dehvered m Sess1ons Tnal No 99/91 by the Addmonal Sess1ons Judge, Kanker whereby the appellant was conv1cted under Section 302 of the Indian Penal Code for committing murder of his elder brother Jangulu Ram on 2-9- 1990 at 9.00 p.m. in village Dhangudara, Police Stan'on Bhanupratappur and was sentenced to imprisonment for life.- 023 It is not disputed that Rajmotin, P.W.I is the wife and Ammtin Bai, P.W.2 is the mother of- the deceased.‘ The! appellant is the son of Ammn'n Bai, P.W.2 and brother of the deceased. 03. quarrel ensued between 'the appellant and the deceased Jangulu Ram at the house‘of the appellant, during which the The factual matrix is that in the night of 2-9-1990 a l ! appellant assaulted Jangulu Ram by a “Moosal’ on the head r and chest. Rajmotin, P.W.1 and Amrotin Bai, P.W.2 saw the occurrence. Jangulu Ram sustained injuries on the right temporal reg'on, left temporal mg‘on, top of skull and the lawml end of right eye brow and (fell unconscious, Jangulu Ram was taken to Dondi by a Jeep for treahnent in a hospital. l He succumbed to the injulies. First Information Report (FIR), Ex.RI1 was lodged by Rajmoh'n, P.W.1 in Police Station Bhanupratappur on 4-9-1990 at 12.30 pm. Assistant Sub Inspector, B.S. Solanld, P.W. 5 wrote the marg intimation vide * EXP/7 and reached theplace of occurrence on 4-9-1990. Inquest on the dead body of Jangulu Ram was prepared vide EXP/2. Dr. S. Yadu, P.W.lO conducted the autopsy on the dead body of Jangulu Ram on 5-9-1990 and found the following injuries : i) Lacerated wound 2 it 1 cm. ,bone deep 2 cms. above and right of the lateral end of right eye brow. Eleptical Swelling 8 x 3 ems. over right temporal mglon. m Swelling 6 x 2 ems. over left temporal region. Swelling over top of the scalp 6 ’x 3 cms. On dissecn'on,,blood clots present under each swelling and there _was subdural haemorrhage over cerebrum. Blood clots were also present over left dental cerebrum; g Dr. Yadu opined that the injuries were ante mortem and death was homicidal due to hemorrhage in brain. a 04. One wooden “Moosat’ was seized vide EXP/4 dam the spot on 4—9-1990. Dr. Yadu after examining it opined vide l . ii) M‘sm Ex.P/ 10-B that injuries sustained by the decased could be caused by the “Moosal’. After completion of investigah'on the appent was prosecuted undef Section 302 of the Indi Penal Code. 05. The appel abjured the guilt, pleaded innocence and did n lead any evidence in defence. The pmsecun'on eamined as man as ten Witnesses. The trial Judge mlying he esny fRm P mm , P sh ‘ Ma d e S c an n of the Indian Penal Code ad entenced him as aforesaid. x y upon t ttimo oajotin, .W.1, Atin Bai .W.2, Gane Ram, P.W.3, Dhannudas, 'P.W.6, Mahendra Singh @ hendu, P.W.7, Pxasad, P.W.8 and the meical evidenc of Dr. . Yadu, P.W. 10 onvicted the appellt under Sectio 302 I . Sm Ji learned unsel for the appellant has contened that there no legal d mhable eence on Iecord to establh the chrge under Section 302 of the Indi Penal Code agst the ppellant. In the alternan'v, she has arued tha the onnce if y was committed by e appell during a sudden quarrel and in heat of passion. The appell did not tend t cse he death of own brother Jagulu Ra therefor at e most the oEence would not travel beyond Section 304 Part Il of the Indian Penal Code against the appellant She placed reliance upon the dec1s10n of Apex Court rendered in the case of Ravi Kumar vs. State of Pugab mported in 2005 cmLJ. 1742 (sci. teamed counsel for the ' § appellant also! argued that the medical evidence in this case did not show that the injuries sustained by deceased Jangulu Ram were sumcient in theakordinaiy course of nature to cause 1 “hymn. ’ V i 7’ M a; @ e lla an lant ot n s 06 t an co d is an v1d is a an ain a e g t e an th ant a ant m o au t his n m e th death and themfom, the oEence if any committed by the appallant would‘at the most fall under Section 304 Part- the Indian Penal Code. She funher submitted thai the appellant was in jail n‘om 5-10- undergone incameration for more than 11 years. On the other hand, learned counsel for the State argued in support of the impugned judgment. II of 1990 to 52-2002 and had Q 07. ‘ We have heard the rival contentions and have also gone through the reconi of Sessions Trial No.99/91. Amrotin Bai, P.W.2 the mother of the appellant has stated that at night there was a quarrel upon some matter between the appellant and Jangulu Ram which was followed by a maipeet. When she hied to intervene the appellant pushed her away. She saw saw that the appellant was assaulting her husband Jangulu Ram by a Moosal where upon her husband fell on the ground She saw that Jangulu Ram sustamed mJunes on the head and chest While Jangulu Ram was being taken to Dond1 hospltal he dled Thereafter she lodged report vnie Ex P/r In cross exammahon she has stated that when she reached the spot her husband Jangulu Ram was lymg on the ground m a pool i (g9 of blood and she did not actually see the appellant assaulting him. 09. Dhannudas, P.w.6, Mahendra Singh @ Mahendu, P.w.7 ate chance Witnesses who happened to be at the place of occurrence. Dhannudas, P.W.6 stated that at night he was going to the neighbouring village for seeing a dance. On way Mahe'ndxa Singh @ Mahendu, p.w.7 met him and told him that Sannoo Ram had taken his cycle thetefore both of them went to the house of the appenant. Dhannudas, P.W.6 stated that on leaching the house of the appellant he saw that the appellant and the deceased Jangulu Ram were quarrelling. On seeing him the appellant asked him to go out whereupon he came out of the house and stood under a tree while Mahendra Singh @ Mahendu, P.W.7 remained inside the house of the appellant. After some time Mahendra Singh came out and told him that Sannoo Ram had assaulted Jangulu Ram by a Moosal. This testimony is wholly unrebutted in cross examination. 10. Mahendra Singh @ Mahendu, P.W.7 has corroborated Dhannudas P.W.6 and deposed that while he alongwith Dhannudas had gone to the house of the appellant for bringing hls cycle a quarrel was gomg on between the appellant and Jangulu Ram during which the appellant picked up a Moosal lying nearby and assaulted Jangulu Ram on the head Whlch felled Jangulu Ram The appellant wanted to assault Jangulu Ram for the second time but he intervened as a result ofwhich . he was hit by a Moosal near the left eye blow He sat dwn o aiier sustaining the injury. The appellant again assaultcd Jangulu Ram 3—4 times, Jangulu became-unconscious. In pam 3 ofhis statement he has disclosed that the appellaiit and Jangulu were quanelling because Jangulu was risking for food hm his Wife Rajmotin, P.W.1 who apprehending that she would be. beaten was not giving food. On this issue the appellant and Jangulu were quarrelling. We have gone thmiigh the testimony of Dhannudas P.W.6 and Mahendm Singh and hnd that it is consistent and inspims conndence. 11. Prasad PW8 has stated that RaJmotln had informed him next day 1n the mommg that there was a quarrel between the appellant and Jangulu at night and Jangulu was lymg injured He went to the house of Jangulu and saw that blood ‘ was 002mg nem his head The tesh'mon‘y of theabove conducted the autopsy on Jangulu and had found the injuries mennoned 1n para 3 of this Judgment The testimony of Dr S Yadu PW 10 proves that death of Jangulu was hom1c1dal The teshmony of Mahendra Singh @ Mahendu, P.w.7, Dhannudas', P.W.6 Amman Bai‘ P w 2 and Rajmotm P W 1 thus estabhshes beyond doubt that the deceased had sustained mJunes at the hands of the appellant who had assaulted the deceased by a Moosal repeatedly on the head Havmg conszdeied the ev1dence led by the prosecution 1n its had rightly concluded that the appellant had caused the death of Jang'ulu Ram § 12. The only point which remains for our consideraiion is as to what oh‘ence was commtted by the appellant The teshmony of Mahendta Smgh @ Mahendu P W 7 clearly goes to show that the appellant was unarmed whJle the quanel was gomg on and had dunng the qualrel p1cked up the Moosal lying nearby and had repeatedly assaulted Jangulu on the head In para 3 of the testimony it is also bome out that the appellant did not have any mauve for committing munier of Jangulu In fact Jangulu was asking for food h‘om his Wife and the appellant was preventing him hem beating his wife. Thus the assault by the appellant on Jangulu was not after deliberation or premeditation. We also, hnd that Dr..S. Yadu, P.W.10 has neither inthe post moxtem report Ex.P/9-A nor in his tesu'mony has stated that the injuries sustained by Jangulu were su$cientin the ordinary course of nature to cause death The testlmony of Prasad P W 8 also shows that when he reached the house of the deceased on the next day Jangulu was ahve though unable to talk. In the case of Ram Prakash Mn us. State ot Bihdr reported in 1998 CrLLaLI622 the Apex Court has held that the Doctor, who had performed the post-mortem examination has not stated that the mJury which was caused to the deceased was su$c1ent 1n the ordinary course of nature to cause death Since the said injury was caused in a sudden quarrel, the @ accused was found guilty under section 304 Part-II I.P.C. and not under Section 302 I.P.C. 13. In the case of Rani Kumnr (Supra), the Apex Court has held that for bringing Exception 4 of Section 300 of the Indian Penal Code in its operation it has to be established by the prosecution that the act was committed without premeditation, in the heat of passion upon a sudden quarrel Without the onender having taken undue advantage and not having acted in a cruel or unusuaimanner. In this case which was cited by the appellant in a sudden quarrel between the accused and the deceased, the accused picked up a dhangu which was a hald and blunt object and gave two blows on the head of the deceased causing fatal injuries. It was held that the accused ’ Was liable to be conv1cted for the od‘ence under Sectlon 304 Part—ll of the Indian Penal Code and not under Section 302 of the lndlan Penal Code. Custodial sentence of 8 years already undergone by the appellant was awarded by the Apex Court in this case. 14. Applying the test laid down by the Apex Court to the facts and circumstances of the present case We hnd that there was no animosity between the appellant and the deceased, who were brothers. The appellant was merely preventing the deceased h‘om beating his Wife who was ahaid to give food to the deceased on fear of being beaten A quarrel had suddenly ensued between the appellant and the deceased The appellant was not armed with the Moosal during the quarrel but he, picked up the Moosal which was lying nearby and I‘ mamv arm T leeatedly assaulted the deceased the hea. here was no medl evience to show th the injun'es sustained by the eceased ere su$cient in the ordina1y oume of nature to cause his death. Th edence led by te 'prosech‘on shows that Janulu was alive till the next ay. It i thus clar that ther ws quarrl between the app and the deceased at night when the hungly decease was a for food hum his wif. ring the qualel the unalm appellat got annoyed to suc an extent tat he picked the Moosal lyin nearby and mpeatedl ssault Jangu on te head. Thus the odence was committe by the appella in a heat of passion. The appellant did no intend to cause the death of Jangulu. The medical evidence ds not show that the deceased Jangulu had susine y injury on the chest. t annot be nfeired nnm the autopsy report Ex.P/9-B ta he appe had acted in an uSllal 01‘ ue mCI‘. V15. Considering the facts and circumstances in which the occurrence took place in its entirety, we axe of the consideled opinion that the appellant had assaulted Jangulu upon a sudden quartel in a heat of passion and had not acted in an unusual or cruel manner. Therefore, the requisite intention for causing the death of Jangulu could not be attributed to the appellant, though knowledge that by assaulting Jangulu on the head repeatedly by Moosal, he was likely to cause death could be attributed to the appellant. The od‘ence committed by the appellant thus squalely falls under Secn'on 304 Part-ll of the Indian Penal Code. p on d T ica d at d w c e vi h u g d s e e a a e ellant d sking e Du r ed n h h g y a ul h d nt t oe tad an I c i ht t llant Crl m IU 16. In the lesult, the appeal is paltly alloWed. The action 302 ofthe \‘z convicu'on of the appellant for oebnce under S Indian Penal Code and sentence awaxded there under are set aside. The appellant is convicted under Secn'on 304 Part-II of the Indian Penal Code and is sentenced to nndergo Rigorous Impxisonment for 10 yew. The appellant has already undergone incameration £rom 5- 10-1990 to 5—2—2002 i.e. for a period of mom than ten years. At present the app bail in pursuance of order dated 21—11-2001 passed by this Court Since he has already undergone the sentence of ten years as awanied bythis Com, his bail bond is’ cancencd and ellant is on I// f;W the surety is disoharged. I SdF ' kh" ? 7 V Sd/- ragDllip - - Raosaheb De’shmu K ‘ - Fakhruddin i l s Judge‘ I K AR? V t ‘ 4 ‘ Judge 5‘ a ‘ p Wi#i IVM’