^3-7-/^ HIGH COURT OF CHHAmSGARH, BILASPUR CORAM: Hon^le^Shn^^ieev Gupta,C.J. SB Hon'ble Shri Sunil Kumar Sinha. J. Criminal Aooeal No. 616 of 1993 Rudan Singh Vs. StateofM.P. (Now State of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA .9 ,''t! For consideration Sd/- Sunii Ktiaiar Sinha Judge Sd/- Chief Justice Post for Judgment : /J/07/2010^ Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHAmSGARH. BILASPUR CORAM: Hpn'ble Shri Raieev Gunta, C.J.Si Hon'ble Shri Sunil Kumar Sinha, J. Criminal'Apneal No. 616 of 1993 APPELLANT Rudan Singh son ofJageshwar Singh, aged about 35 years, resident of Bartola, Piplamar, District Bilaspur (M.P.) (Now Chhattisgarh) -« RESPONDENT Versus StateofM.P. (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure, 19731 Appearance: Mrs. Ranjana Jaiswal, Advocate for the appellant. Mr. Akhil' Mishra, Dy. Govt. Advocate for the State. JUDGMENT (13 .07.2010) ^ Following judgment of the Court was delivered by Sunil Kuinar Sinha. J. (1) Appellant-Rudan Singhsfands convicted u/s 302 IPC and senfenced to undergo imprisonment for life by the Third Additional .Jydge to the pourt of Sessions Judge, Bilaspur in Sessions Trial No. 467/<.91on 18.5.93. , {2} The facts, briefly stated, are as under:- Deceased- Ishwardin was son of complainant - Arjundas (PW-1). The deceased had taken a bicycle on rent froni appellant <i- Rudan Singh and an amount of Rs.40/- was standing against the Criminal Apoeal No. 616 of 1993 deceased. By that dme, the appellant became a candidate to contest the election for the post of Sarpanch. He suggested the deceased that the four members of the family of the deceased should vote in his favour and he should not pay Rs.40/- to him. The appellant was defeated in the election. On 4.7.91 when Arjundas was returning from his fields, he was stopped on the way and was assaulted by the appellant. He received certain injuries. On account of some settlement on 5.7.91, no report was lodged. On 6.7.91 at about Z.OO p.m., the appellant went to the house of deceased and called hiru. After some hot exchanges, he took out one wooden club [khunta] froni the medhi {khaliyan) of one Raaivishal and assaulted on the head of the deceased, due to which, he died. (3) The incident was witnessed by Arjundas (PW-1), Angar Prasad (PW-2) and Ramvishal (PW-3). The leamed Sessions Judge convicted the appellant, as aforementioned, believing the testimonies of 3 eye- witaiesses. (4) Mrs. Ranjana Jaiswal, leamed counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. She has also not disputed the ihvolvement of the appellant in criine in question. (5) We have gone through the evidence of aboye 3 eye-witnesses. They have categorically deposed that on the date of incident, the . . appellant cafhe to the house of the deceased and after hot exchanges, he'took out a club from .threshing place of Ramvishal (PW-3) and ^ssaulted the deceased on his head. Therefore, it was established that it was the appellant who assaulted the deceased by a club who died homicidal death. < Criminal Appeal No. 616 of 1993 (6) Mrs. Ranjana Jaiswal argued that the manner in which the incident begin and the assault thereafter given to the deceased would show that his act would not be punishable u/s 302 IPC and he would be liable for punishment/304 Part-II IPC. (7) On the other hand,' Mr. AKhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (8) We have -examined the case on the above argurrients. (9) Arjundas (PW-1) deposed that at about 7.00 p.ra. the appellant came to their house. He was acconipanied by Roopsingh and Jhumuklal. They were un-arm. He said them to go back froru his court- yard. Thereafter the-appellant topk one wooden club from khaliyan of Ramvishal and started quarrelling with him. He said to his son that he has assaulted him, therefore, the appellant will also assaulted hira. The appellant assaulted the deceased on his head by the said wooden club. He admitted in the cross-examination that the appellant gave only blow on the head of the deceased. Angar Prasad (PW-2) and Ramvishal (PW- 3) also deposed in similar fashion. Ramvishal (PW-3) deposed that when he heard commotion from the hbuse of the deceased, he went there and saw that a quarrel was going on between the appellant and the deceased. He,;had tried to stop thein but the appellant assaulted on the head of the deceased by a club. -•s^- (10) We find that all the eye-wita'iesses, including the father of the deceased, have been consistent on the fact that the appellant gave single blow on the head of the deceased, however, there were three t^external injuries ori the person of the deceased. Therefore, there is .s':liil^ilj[Btt l i"^ fe. 6 ^l. j ^»-6 Crimmal Aopeal No. 616 of 1993 !<<, IB! discrepancy in ocular version and medical evidence led by the prosecudon. In the facts and circumstances of the case, with a view to give primacy to the ocular version, we hold that according to the prosecution witnesses, ifwas proved that the appellant gave only one blow on the head of the. deceased. We further note that in the cross- exainination of the father ofthe deceased i.e. Arjundas (PW-1), it comes that only one lathi was given on the head of the deceased and after departure of the appellant from their house, they saw only one injury on ) • • the head of the deceased and there was no other external injury on any other part of his body. (11) To invoke Exception 4 to section 300, four requirements must be satisfied, namely (i) it was a sudden f^ht; (ii) .there was no preineditation; (iii) fhe act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. Therefore, even otherwise also, the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpreraeditated and the offender must have acfed in a fit of anger and he must not have taken any undue advantage or acted in a cruel manner. V-, (12) In the present case, the appellant had gone to the house of the deceased without any weapon. Firstly there were some hot exchanges between tMe appellant and the father ofthe deceased and thereafter, the 't . quarrel began and all of a sudden, the appellant picked-up a club from ' a nearby place and assaulted the deceased by the said club. This shows that there was no premeditation and preparation on the part of the ''•S, appellant, and the incident occurred in sudden quarrel in a fit of anger. . • yTherefore, in 'our considered view, the act of the appellant would not ./ - '•t% •i ^"^8 ^ ^ '-'f^^^'"''y Criminal Aupeal No. 616 of 1993 constitute an offence u/s 302 IPC and he would be liable for punishment under Part-II of Section 304 IPC. (13) In the result, the appeal is partly allowed. The convicdon and sentence awarded to the appellant are set-aside. He is acquitted of the charges framed u/s 302 IPC. Instead thereof, he is convicted u/s 304 Part-II IPC and sentenced to undergo R.I. for 10 years. K vatti (14) The appellant is in jail. He shall be entitled to set-off of the period already undergone'by him. Sd/- ChiefJustice Sd/- SunilKumarSinha Judge /