@ HIGH COURT OF CHHATTISGARH, BILASPUR ’ Gupta, C.. .& ’ Kumar Sinha, J. Criminal AQQeal No. 1 1 89/1 993 Khoobu @ Sonesai V. s State 6f Madhya Pradesh (Now tate of Chhattisgarh) Fggg ,‘ Sd/— Sunil Kumar Sinha‘ ‘ Judge W, HON’BLE SHRI JUSTICE RAJEEV GUPTA % L; @2010 Sd/- $ o Chief Justice Post for Judgment : 0/2019A/J/ / ‘ sw— ‘ Sunil Kumar Sinha Jgggverv, . 6 I10/2o1o CORAM: Honble Shri Raieev J Honble Shri Sunil E S JUDGMENT w — ‘ » HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1189 of 1993 APPELLLANT Khoobu @ Sonesai, son of Devprasad Kunwar aged about 40 years, Resident of Mahora P.S. Korba, District Bilaspur Versus RESPONDENT State of Madhya Pradesh ‘ (Now $tate of Chhattisgarh) (Criminal Appeal under Section 374 of the Code of Criminal Procedure) Appearance: Mrs. Ranjana JaiswaLAdvocate for the appellant. ML J.A. Lohani, Panél‘Lawyef’forlthé'State’. ' JUDGMENT (21.10.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal .is directed against the judgment dated 26.11.1993 passed in Sessions Trial No.195/89 by the Second..Additional Sessions Judge, Bilaspur, By the impugned Judgment. the appellant has been convicted under Section 302 of IPC and sentenced to undergo imprisonment for life. we (2) The facts, briefly stated, are as under:— The appellant’and the deceased were residents of 'same village. On 07.05.1989, at about 11:00 a.m., they started quarrelling near the Nala of the village. Theallegations are that the @ ppella assaulted the deceased by hands and fists nd he also ressed his neck, due to whic the eceased died. The incident was witnessed by Rambai (P—3). Rambai stated about the ncident o Jawahar Lal (PW-4). hen the villagers went to the place of occurree, they saw the deceased lying in dead ondition. The matter was informed to the Police Station by Laxman, on which, th Police came to the vllage and Dehatina/I'si (Ex.P/8) was cd The it Officer gave notices (EXP/1) to the anchas and prepared inqust (EP/2) on he body of the decease The dead body was sent or s ptmonem examnao The postmortem exaon was condcted by D Su ngh (PW—). No external us were found on the body of he deased Howeve ecchymO sent o te ht e of t k ete tyr bo a ern hy muscle and was also present on the left e of the neck. The Autopsy t dh a e st Ex The case of the rosecu w based on eye—ness account o Ramb P as aso e m eence of Dr. Su nh (PW—13). The learned Session Judge relie on the testimony o Rabai (PW~3) and held tat the deceaed was strangulatd by the appellant, which resulted into hi death. ' ' ( reorde. lnviest’gaingi P e x- t d f it os itin minati u r riit Si 13 injrie t ec r Sis was pre n h rig Sid he nec bwen hOid ne nd sto 0id it Sid Surgeon opined tha the caUse of eat ws asphyxia. Th pomortem report is P/8-A. ption as Wit f ai (W— ) l th edical Vid riit Sig s d f m h s 3) Mrs. Ranjana Jaiel, lerned counsel apparing on behalf of the ( sw a e appellant argued that a pett quarrel took place between the appellant y and the deceased, in which, the deceased reced injuries on his neck, eiv W tnt o the app e m as such, there as no ineion f 'e‘llant‘to tcaus urder of the deeased. She argued that in the facts and circustances of the case, c m ’th act of the ppellan i'c‘uld not trvel beyond Sectio 304 Part-I IPC, therefore, the conviction of the appellant under Section 302 IPC may be set aside. ant a p h, d § W i t W ' nc c Criminal Appeal N0. 1189 of 1993 e i e s ’Je at Vi a n (4) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed‘these arguments and supported the judgment passed by the sessions court. (5) e have heard the learned counsel for the parties at length and W have ao perused the records of the sessions case. ls (6) On the evidence of Rambai (PW-3) and Premsingh (PW-6), t was i establih that quarrel took place between the appellan and the deceaed and in the said uarrel, the appellant pressed the neck of the deceaed,due to which, the deceased died. Rambai (PW-3) deposed s: h t that se had seen he appellant assaulting the deceased by hands and W he fists. hen the deceased fell down, the appellant mount‘ed himself on t chest‘of the deceased and he has pressed his neck. Premsingh (P-6) W deposed that the appellant and the deceased ha slaughtered a goat . He d had purchase .meat f Rs.10/a r himself nd h also purchased meat d o fo a e of Rs.10/— for one Chandan. He went to the house of Chandan along with Sadhu and Sukh Singh. They had purchased one botle of liquor from the hou of Chandan. The onsumed e liquorn the us of Candan. se y c th xi hoe h en they wer oing from he house of andan, the apllant and he Wh e g t Ch pe t S‘ deceased also came to the house of Chandan. In fact, they got down from a truck and he had a talk with them. Thereafter, they left that place. 'ln the cross-examination, he admitted that, the appellant and the deceased also consumed liquor in the house of Chandan. lt appears that after consuming liquor in the house of Chandan, the appellant and the deceased started quarrelling near the Nala, which was witnessed by Criminal Appeal No. 1189 of 1993 sed a t s q t 4 @ Criminal Appeal No. 1189 of 1993 Rambai (PW—3) and in the quarrel, the neck of the deceased was pressed by the appetlant, which proved fatal. (7) j In State of Puniab vs. Joqinder Sinqh and another, (2003) 12 S.C.C. 179, the accused was not armed with any weapon. He went to the house of the deceased to get back Rs.100/— which he had lent to him. When the deceased was not in a position to pay the money, the accused got fiared up and caught hold of him. It was proved that he put pressure on the neck of the deceased and it caused his death. The postmortem . ‘ . report shows that the deceased was frail and slight pressure on his neck must haye resulted in his death. When all others came, the accused ran away. The Supreme Courtheld, thatéin such. situation, ,it was difficult to assume that by using such force, the accused had any intention to cause death, though he could be attributed with the knowledge that his act would cause death of the victim. The Supreme Court, therefore, found the accused Quintet Offenee,Punishableumter.Seeti9m04rrart H IPC and sentenced him to undergo rigorous imprisonment for 6.years. (8) ‘ ln Shakti Dan vs. State of Raiasthgz (2007) 15 S.C.C. 68, the appellant-accused alleged to have dragged hisimother out of the house to temple of Karni Mata and throttled her to death. Th‘e incident occurred because she advised him to not to quarrel with his wife whom he had - beaten earlier and as a result thereof, she had run away to the house of his younger bré'the'r. It Wég‘a'rg‘u'e‘d iiiéiiith‘e’i‘iei ‘viiés 'n'b iht‘ehtibn ‘of the (accused to commit-murders of his mother. Considering the facts and circumstances, the Supreme Court held that it was a case under Section 304 Part-l IPC and directed the accused to undergo imprisonment for 10 years. 5 (9) . In Budhi Lal vs. State of Uttarakhand, (2008) 14 S.C.C. 647, the appellant husband alleged to have assaulted his deceaéed wife with his handé while sitting on her chest. The postmortem report indicated that the ‘ deceased died due to suffocation as a result of obstruction in‘respiratory passage. The incident was witnessed by PW—3 who was a guest and an W eye-witness to the assault. Considering the factuai scenario and manner of assault as alleged by the prosecution the Supreme Court held that Criminal Apgeal N0. 1 189 of 1993 xe the appropriate conVIction In the said case shall be under Section 304 u ‘ r Partl IPC and custodial sentence of 10 years would meet the ends of justice. (10) Now reverting to case on hand, the appellant and the deceased were residents} ofsame village. There is..no evidence that they had ginimical relations. The appellant was unarmed. According to Rambai (PW—3), in fact, they were quarrelling and scuffiing with each other and in that process, the appellantput press‘urevon the neck‘ofvthe deceased, which proved fatal. Therefore, in our considered view, in fact, there was no intention of the appellant to commit murder of the deceased and punishment of the appellant under Section 302 IPC cannotbe sustained. We are of ‘thelviewthvat in the factsandhcircjumstances of the case, it ; . w ‘t‘H! ' iéltt 20" »' ‘~.‘ would be appropriate to convict the appellant under Section 304 Part-I IPC and sentence him to undergo imprisonment for 10 years. ,(11) Accordingly, the appeal is partly allowed The conviction and sentence awarded to the appellant under Section 302 IP C are set 9 aSIde Instead he Is conVIcted under Section 304 Part-l l.P.C. and sentenced to undergo rigorous Imprisonment for 10 years. 6 Criminal Apgeal No. 1189 of 1993. (12) A perusal of the record would show that the appellant was arrested on 09.05.89 and he was directed to be released on bail on 04.02.2003 That means, he was released on bail after undergoing jail sentence of about 13 years. Presently, the appellant is on bail; therefore, he is not required to surrender in this matter. His bail bonds are cancelled and the surety stands discharged. shyna e 4 ”SH/T Sd/j Sunil Kumar Sinha V ‘Chief Justice , Judge/Jig.