^ HIGH^QURT OF CHHATTISGARH, BILASPUR Division Bench: Hon^ble Shri Sunil Kumar Sinha &. Hon^ble Shri Radhe Shyain Sharnia, J J Criminal Appeal No. 559 of 1995 Surit Ram Vs. TheState ofMadhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA ej °^- Sd/- R.S. Sharma Judge Post for Judgment : / / §72011 Sd/- Sunil Kumar Sinha Judge €^^ ^ .^; ^^ .J ^^.....^ ...y HIGH COURT OF CHHATTISGARH, BILASPUR Division B^nch: Hon^ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe ^hyam Sharma^J^J APPELLANT RESPONDENT Criminal Appeal No. 559 of 1995 Surit Ram son of Isaram, aged about 35 years, Resident of Village Bhilai Khurd, P.S. Korba, District Bilaspur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through P.S. Korba (Criminal Appeal under Section 374 (21 of The Code of Criminal Procedure, 1973) Appearance: Mr. Abhay Tiwari, Advocate for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUPGMENT ( ±.08.2011) Following judgment of the Court was delivered by Sunil Kuniar Sinha, J. (1) This appeal is directed against the judgment dated 28th of February, 1995 passed in Session Trail No. 11/92 by the Second Additional Session Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. (2) The facts, briefly stated, are as under:- In the evening of 20.10.91, the appellant came to the house of deceased- Meelmati, abused her and assaulted her Criminal Appeal No. 559 of 1995 by a lathi The First Information Report (Ex.-P/1) was lodged by Champa Bai (PW-1). Meelmati was sent to the hospital for medical examination. She was examined by Dr. S.K. Agrawal (PW-10). He noticed a contusion of 6 cm x 6 cm on the back portion of her head. There was an abrasion of 1 cm x 1 cm on the upper back portion of the head and there was contusion on right elbow. Meelmati died during the course of her treatment. Her body was sent for post-mortem. The post- mortem examination was conducted by Dr. Bheem Prasad Kanwar (PW-12). On internal examination, he found that brain membrane beneath the injury of skull was ruptured and there was injury on the back portion of the brain. He opined that the cause of death was injury to the brain and it was homicidal in nature. The post-mortem report is Ex.- p/11. (3) The conviction of the appellant is based on the testimony of Champa Bai (PW~1). She is an eye-witness. Another eye-witness is Amritlal (PW-4). The above witnesses are daughter and son of deceased- Meelmati. (4) Mr. Abhay Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the involvement of the appellant in the above incident. He only argued that the appellant came unarm to the house of the deceased; there was some altercation between the appellant and the deceased and in the said altercation, in heat of passion all of a sudden the appellant picked-up a bahinga (a bamboo stick used for carrying articles on shoulder), which was lying in the house of the deceased, and gave single blow to the deceased. In the above facts and circumstances of the case, the ^ . ik Criminal Appeal No. 559 of 1995 h^' act of the appellant would not be punishable u/s 302 IPC and he would be liable for punishment under some lesser Section preferably Part-II of Section 304 IPC. (5) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (6) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. (7) We have carefully gone through the evidence of Champa Bai (PW-1) and Amritlal (PW-4). Champa Bai (PW-1) is daughter ofthe deceased and Amritlal (PW-4) is son of the deceased. Both deposed that they were present in the house at the time of the occurrence. The appellant came there and after some altercation with the deceased, he assaulted the deceased by a bahinga due to which the deceased sustained injuiy on her head. The above evidence of these 2 witnesses remained unchallenged even after their lengthy cross-examination. Therefore, it was established beyond all reasonable doubts that it was the appellant who assaulted the deceased by a bahinga. (8) Now we shall consider the argument of Mr. Tiwari that it is not a case u/s 302 IPC. "K:^s @ Criminal Appeal No. 559 of 1995 (9) Chanipa Bai (PW-1) deposed that on the fateful day she was present in her house along with her brother Amritlal (PW-4) and sister Budhmati. They were sitting on a chabutra in front of their house. Their mother was sleeping on a cot in the house. The appellant came to their house and asked them about her mother. Thereafter he entered into their house. The appellant was unarm. She also entered into the house behind the appellant. Amritlal (PW-4) and Budhmati also followed her. The appellant was saying to her mother that "...............^^N1 ^TH^ ^ 3TRT ^t I ^ ^zpT ^T ^T "^ft Ff ^ ycmT |.................." . Thereafter he dragged her towards the road and assaulted her by bahinga kept in their house, Her above evidence is corroborated by the evidence ofAmritlal (PW-4). (10) On appreciation of evidence of these 2 witnesses it becomes clear that the appellant came to their house unarm and he had a talked with the deceased prior to the incident saying that he recognizes the deceased as mother and the deceased used to support his uncle. It is after all this pre-altercation, the appellant picked-up a bahinga which was lying in the house of the deceased and gave a blow to the back portion of the skull of the deceased. This shows that there was no intention of the appellant to commit murder of the deceased as there was no preparation or premeditation and the incident took place after an altercation when the appellant picked-up bahinga and assaulted on the head of the deceased. Had there been an intention of the appellant to commit murder of the deceased, he would have brought the Criminal Aupeal No. 559 of 1995 weapon from his house. It appears that without preparation, in a sudden quarrel, in heat of passion, the appellant gave single blow to the deceased. We are of the view that in the above facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment u/s 304 Part-II IPC. (11) Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead thereof, the appellant is convicted u/s 304 Part-II IPC and sentenced to undergo R.I. for 10 years. It is stated that the appellant was arrested on 23.10.91. He was throughout in jail, however, he was released on bail on 4.3.2003 by order dated 22.1.2002. Therefore, he has already undergone the sentence awarded to him. Presently he is on bail. His bail bonds are cancelled and surety stands dlscharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge vattl