^ HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. Jl ^ Criminal Appeal No. 488 of 1993 ^ Lakhan Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Post forJudgment :30/09/2010 Sd/- Sunil Kumar Sinha Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:11 +0530 HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. J) ! t ^:' APPELLANT RESPONDENT Criminal Appeal No. 488 of 1993 Lakhan, son of Rasiya Sahu, aged about 40 years, resident of village Karibhanwar, Police Station Jaijepur, Tahsil Sakti, District Bilaspur (M.P.) (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Appeal under Section 374 (21 of The Code of Criminal Procedure. 1973) Appearance: Mr. Yogeshwar Sharma, Advocate for the appellant. Mr. R. Tripathi, Panel Lawyerforthe State. JUDGMENT (30.09.2010) Sunil KumarSinha, J. (1) Appellant- Lakhari^stands convicted a/s 304 Part-ll IPC and sentenced to undergo R.l. for 5 years and to pay fine of Rs.1,000/-, in default of payment offine to further undergo S.l. for 3 mbnths, by the First Additional Sessions Judge, Bilaspur, in Sessions Trial No. 120/87 vide judgment dated 26.5.93. (2) The facts, briefly stated, are as under:- Deceased- Sethuram was aged about 62 years. He was cousin of the appellant. Their houses are situated in front of ^ ^ys^^ t Criminal Appeal No. 488 of 1993 each other in villageKaribhanwar. On 19.7.86 some quarrel took place between Lakhan and Ganeshram (PW-11 - son of deceased-Sethuram) after drinking liquor. It was pacified. Thereafter Lakhan came in front of the house of Ganesh and started abusing him. He was holdinga/a^/7/". Lacchiram (PW-8- another son of Sethuram) intervened and took the appellant inside his house. Aftersometime, the appellant again cameout from his house. This time also he was taken to his house. Thereafter the appellant came out from his house with a spade in his hand. He was abusing Ganeshram. Deceased-Sethuram stopped him from abusing them, on which, the appellant assaulted the deceased on his head from the blunt side of the spade. Deceased received injuries and fell down. He was taken to the police station by LacchJrami(PW-8) and the First Information Report (Ex.-P/13) was lodged. Appellant was named in the F.1.R. Sethuram was immediately taken to the hospital, where he was examined by Dr. S.R. Wankhede (PW-3), who found one Y- shaped .injury on the left side of the parietali bone. He also found anabrasion on the left forearm. He advised for X-ray examination of the head injury and looking to the nature of the injury, referred the deceased to District Hospital Bilaspur for further treatment. The injury report is Ex.P/5-A. Sethuram was taken tb thel District Hospital, Bilaspur where he died on 20.7.86. A merg intimation (Ex.-P/19) was lodged by the hospital authorities. Inquest (Ex.-P/17) on the body of the deceased was prepared and the dead body of the deceased was sent for post-mortem examination ;vide requisition Ex.- P/10-A;H'he post-mortem examination was conducted by Dr. Shekhar Chatterjee (PW-6). The post-mortem report is Ex.- P/10. The Autopsy Surgeon noticed the following injuries on the body of the deceased:- ^ '%-::; c V. Criminal Appeal No. 488 of 1993 (i) One stitched wound on left temporal region, Y- shaped, 5 cm x 2 cm; (ii) Abrasion on left forearm, 2 cm x 1 cm & (iii) Extra-dural hematoma correspondiog to injury No.1 On internal examination, he found that huge amount of blood was collected beneath injury No.1 and there was depressed fracture of left temporal and parietal bone corresponding to injury No.1. There was also a linear fracture of left temporal and parietal bone. Y-shaped intra-dural hemotoma and laceration were present on brain tissue corresponding to injury No.1. The injuries were ante-mortem. Injury No.1 was grievous and was sufficient to cause death in ordinary course of nature. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage due to head injury and itwas homicidal in nature. During the course of investigation, the appellant was taken into custody and his memorandum statement(Ex.-P/1) was recorded u/s 27 of the Evidence Act and an iron spade was seized at the instance of the appellant vide seizure memo Ex,-P/2. The appellant was also sent for his medical examination and was examined by Dr. K.N. Chandra (DW-1), who noticed following external injuries on his body:- (i) Abrasion on the interior aspect of right knee, 1 inch x 3A inch; (ii) Abrasion on the interior aspect of left knee, Vi inch x 1/2 inch; (iii) Abrasion on the left shoulder of interior aspect, 1 inch x 1/2 inch; (iv) Abrasion on the frontal region^of'right shoulder, "^ inch x 1/2 inch; (v) Tenderness on the scrotal region; Q 4 Criminal Appeal No. 488 of 1993 (vi) Tenderness on the right hand & (vii) Abrasion on the interior aspect of left elbow, 1 Vz < inch x Vz inch. All the injuries were simple in nature. Injury report of appellant is Ex.-D/2. After completion of usual investigation, the charge-sheet was filed u/s 302 IPC in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the First Additional Sessions Judge, Bilaspur, who conducted the trial and convicted & sentenced the appellant as aforementioned. (3) The prosecution examined four eye-witnesses namely Lacchiram (PW-8), Kiritram (PW-9), Nankiram (PW-10) and Ganeshram (PW-11). Out of four eye-witnesses, Kiritram (PW-9) and Nankiram (PW-10) turned hostile and they did not support the case of the prosecution. (4) The learned Sessions Judge relying on the testimonies of Lacchiram (PW-S)and Ganeshram (PW-11) held that the deceased was assaulted by the appellant by spade. The Sessions Judge further held that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant was liable for conviction u/s 304 Part-11 IPC. (5) Mr. YogeshwarSharma, learned counsel appearingon behalf ipf the appellant, argued that the appellant was in drunken y iti 'i '^ .1 ^»'! ^, ^, <IP^ ^i^ :NS2S^' Criminal Appeal No. 488 of 1993 condition; he has also received injuries; in fact, a quarrel took place between the appellant on the one side and Sethuram (deceased) and his sons 6n the other side, and in thesaid quarrel Sethuram received above injuries. ^ L ^ (6) On the other hand, Mr. R. Tripathi,|eamed Panel Lawyer ^- . appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (7) 1 have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Lacchiram (PW-8) deposed that on the fateful day, he had gone for ploughing the field of the appellant as a labour. When he returned from the field, he saw that the appellant was abusing his brother Ganesh in front of his house. The appellant was taken to his house. After sometime, he again came out from his house with lathi and started abusing in front of his house. He was again taken back, but the appellant, 3rd time, came out from his house with spade in his hands. When Sethuram tried to intervene, the appellant assaulted over his head by the blunt portion of spade. The evidence of Lacchiram (PW-8) is supported by the evidence of Ganeshram (PW-11): We find in the evidence of PW-8 that he deposed vide, Para-4 that when the appellant was being taken to Criminal Aooeal No. 488 of 1993 y his house by this witness and his father- Sethuram (since deceased), the appellant fell down on the way near a wall, due to which the appellant and this witness received injuries. The appellant was in drunken condition, therefore, they took him and left him in his house. Therefore, it is clear that the appellant sustained the above injuries in the above manner while he was being taken to his house. In absence of any other evidence, the appellant canhot say that he sustained the injuries on account of assault by the deceased or complainant party. Moreover, it is a case in which the jncident took place in front of the house of the deceased. The appellant came to his house with danda in his hands for two times. He was taken back to his house on both the occasions. Thereafter on the 3 occasion, he came with a spade and when the deceased tried to intervene, the appellant attacked over the deceased causing injuryto his head by spade. It does not come on record that the persons of the complainant party were armed with any weapon or in fact they had tried to assault the appellant. On the contrary it comes that the appellant assaulted the deceased on his head by spade. Therefore, it cannot be said that either it was a case of free fight between them or it was a case in which the appellant exercised the right of private defence. After considering the entire facts and circumstancesof the case, the learned Sessions Judge held that the attack over the deceased was not premeditated and the appellant would not be liable for 'punishment u/s 302 IPC: Hence he was convicted u/s 304 Part-11 Criminal Appeal No. 488 of 1993 IPC. On due consideration of the entire material available on record, I do riot find any fault in the view taken by the learned Sessions Judge. The conviction awarded to the appellant therefore has to be upheld. (9) The appellant gave single blow by the blunt side of spade on the head of the deceased which caused Y-shaped lacerated injury having depressed fractures as stated by the Doctor. The deceased was an old man aged about 62years and the appellant was aged about 40 years at the time of the incident. Looking to the facts and circumstances of the case, it does not appear that the sentences awarded to the appellant were excessive in any manner warranting interference by this Court. (10) For the reasons statedabove, l do not find any substance in this appeal. The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. (11) The appellant is on bail. His bail bonds are cancelled. He is directed to surrender immediately to serve the sentences imposed against him. Sd/- Sunil Kumar Sinha Judge vatti