";.^ '"\ / ..'gsfc i l),,,f!y^ g t.-^ -rf'./ .fsk^ iLE Mr. JUSTiCE SUNIL HON'BLE MT. JUSTSCE RADHE SKYAM SHARiWA CR1MINAL APPEAL N0.1325 of 1SS Mahanguram S/o Laxmi Prasad Yadav aged 25 y&ars, occupation Labour, resident of Purani B'asti Kharsiya Thana haiarsiya District Raigarh LlT State of Madhya (Now State of Chhattisgarh) through S.O. Kharsiya Asoearance: Mrs. indira Tripathi, Counsel for the appetiant. '. Ashish Shukla, Govet-nment Advocate for the State. (07.07.2011) 'hefollowing judgment of the Court was passed by ;1) This appeai is directed against the judgment dated <th of September 1995 passed in S.T. No.225/94 by the Session Judge, F^aigarh. Bythe impugned judgment, the appellant'has ../ ~ . been cQnvicted 'under Section'302 IPC and sentenced to v.»- urideFgo imprisonment for life and to pay a fine of Rs.250/-, in default, to further undergo S.l. for 1 month. (2) The facts,' briefly stated, are as under: teill'«l ^- l^., ^•y^Si. CRIMJNAL APPEAL N0.132S of 1995 -;.-' \'<(... M ~he appellant and deceased- Thuru, both were Hammal (Coolies). On 01.08.1994 at about 2:30 p.m., ihey were quarrelling on a public road. They were in heavily drunken condition. The allegations are that during the quarr.el, they scuffled and the appellant, all of a sudden, picked up a rod and tried to assautt the deceased. The rod slippgd from the hands of the appellant and it did nof hit the deceased. Further ailegations are that thereafter, the appellant picked up a hammer, whtoh was lying in front of the shop of Kartikram (PVt/-3) and gave two hammer blows on the deceased. The incident was witnessed by 3 eye- witnesses namely Kartikram (PW-3), Lachhan Das (PW- ,4) and Keshavram Agarwal (PW-6). Kehsavram Agarwa! (PW-6) lodged the merg intimation (Ex.P/7), based on which, the First information Report (Ex.P/6) was registered. The merg infimation as also the F.1.R. contain the details of the ihcident including the name of the appellant. Afterthe information, the inquest (Ex.P/1) was prepared on the body of the deceased and the dead body was sent for postmortem. The postmortem examination wa$ conducted by Dr.R.K. Singh (FW-8). He found only one lacerated wound on the skuii of the deceased. The wound was offhe size of 8 inch x 3 inch x braln deep. Fronto temporal bone was fractured into many pieces. There was iaceration in the brain tissue. The craFtia] cavity was open and the brain matter has ,/ corxfe'out. He opined that. the cause of a'eath was severe brain injurya&d it was homicidal in nature. The postmortem report is Ex.P/9. Various articles i.e. plain soil, blood stained soil, blood stained banyan and hammer were seized from the place.of occurrence vide seizure memo Ex.P/2. The seized articles were sent for their chemical 'examination to Forensic Sclence ». /' < •<. iPPEAL N0.1325 ofiS?! Laboratory, Raipur, from where, a report (Ex.-P/18) was received. According to the FSL report, blood stains were found on aimost all articies, except tne piasn SOM. Though, the'said articles were sent for Serologist Examinatlon,.bui the report could not be filed. Out of 3 eye-vrfitnesses, Kartikram (P'vV-3) and Lachhan Das (PW-4) turn6d hostile and they did not support the case of the prosecution. The learned Sessions Judge reiied on the testimony of Keshavram Agarwai (FVy-6) and heid that it was the appeilant who committed murder of the deceased by giving him hammer blow; thererore, he was liable for punishment under Section 302 IPC. The appeliant, therefore, was convicted under Section 302 IPC and sentenc^d as aforementloned. (3) Mrs. Indira •Tripathl, learned counse! appearing on behaif of the appellant, has not disputed the homicidai death of the deceased. She has also not disputed the involvement of the appeliant in crime in question. She argued that in fact, the appeltant and the deceased, both were in drunken condition and they were' qyarrelling. During the quarrei, they were scuffling vvith each other and in the said quarrel, ail of a sudden, fhe appeilant picked up the hammer and gave single blow to the deceased, due to v/hich, he received the above injury/^nd succumbed to the Said injury. She argued that in the above facts and circuftistances of the case, when there was no preparation or premeditation, an offence under Section 302 IPC would not be made out and the appeilant would be liable •^' /'-- ai"- / ^y^ 1 i'S.i3ifcKS^,^;i . ^ '-> t. r"! ^i y . '4 for punishment under some lesser Section preferably Part-1 or Part-iiofSeciion304iPC. (4) On the other hand, Mr. Ashish Shukla, iearned Government Advocate appearing on behalf of the State, oppQsed these arguments and supported the judgment passed by the Session Court, (5) We have heard learned counsel for the parties at length and have also perused the records of the Session Case. (S) The evidence of the sole eyewitness namely Keshavram Agarwal (PVV-6) would show that he saw the appeilant assaulting.-the deceased, when he was going to his shop. He veryclearly deposed that the appeiiant assauited the deceased by hammer. According to his evidence, the appellant gave tv>?o biows, one of which hit on ihe scapuiar region and the other hit on his skuli. The evidence of Dr. R.K. Singh (PVV-8) would show that the deceased had received only one injury-on his skull. He has categorically mentioned In the postmortem report (Ex.P/9) that except the above, no oiher external injury was seen on the person of the deceased. Therefore, it is clear that it was a case of giving single blow by ttie ^iammer, which, in fact, hit on the head of the deceased and the deceased'-'teceived the above. injury. Keshavram Agarwal (PVV-6) immediately todged the merg intimation (Ex.P^7) and the F.1.R. (Ex.P/6). In fact, the merg intimation v/as iodged within 15 minutes of the time of the incident. ,^l...,t..±,>kir'.ta CRIMINAL APPEAL N0.1328 of 1895 '*<.. \1' Except the above that he deposed about two blows given by the appellant and there was only one injury on the head of the deceased, there is TIO other a'iscrepancy in his evidence. Therefore, the learned Session Judge Vi/as fully justified in relying on the evidence of Keshavram Aganval (PW-6). (7) Now we shatl examine the matter in light of the provisions of Section 302 vis-a-vls Section 304 IPC. (8) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. It draws a distlnction between the penalty to be inflicted in cases, where, an intention to kili being present, the act would have amounted to murder, but for its having'failen within one of the Exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause deaih, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is knovi/Iedge but the important thing is that before holding the accused guiity under any part of Section 304, it has to be observed that a ./- aeaih ,/hust. have been caused by him under any of the eircumstances mentionSd in the five Exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith ihe right of private defence of person or property, and in a sua'den fight in the heat of passion without premeditatlon. Knowledge of consequences which may resuit in a'oing an act is quite different than the intention which denotes that a.particular tonsequence shouid ensure. For attracting the former part of Section 304, an element or' intention is a factor whereas for attracting the later part, an element of knowledge is. a factor. The intention is the purposefui doin'g of a thing to achieve a particuiar resuit, whereas, the knowledge is an awareness which attributes to be well informed that a particuiar result may happen by doing athing. .,- ' (9) In the instani.case, as per evidence of Keshavram Agarwal (PW-6), at fhe reievant time, the deceased and the appellant .were abusing each other and they were scuffling with each other. Both vvere in heavily drunken condition. Keshavram Agarwal (PW-6) tried to intervene, but they did not stop. h^rtik Mistri a)Sb tried to intervene, but they continued to quarrel. it is in this situation, during the quarrel, the sppeilant picked up a rod and tried to-assauit the deceased, but the rod slipped from the hands of the appellant Thereafter, the appellanr'picked up a hammer and gave hammer blow, which , 'hit on the head of the dspeased and the.deceased received the above injury, In ttie above facts and circumstances, it is clear fhat tlrere was no preparation or premeditation on the part of the appellant to commit murder of t'ne deceased. The .^' iaisEii'.'i ':;H •Bff R CRiMiNAL APPEAL N0.1325 of 1S9! appellant was throughout unarmed. In fact, the appellant and the deceased had quarrei for a long time prior to the assault given by the appellant. They were abusing each other in drunken condition and^ in such situation, after a very iong time in continuation of the quarrel, the appeilant, all of a sudden, took the hammer and assaulted the deceased. (10) We are of the view. that in the above facts and circumstances of the case, the intention of the appellantcan well be gathered and he wou!d be liable for punishment under Part -I of Section 304 IPC. (11) For the foregoing reasons, the appeal is partly allowed. The conviction and senten.ee av/arded to the appeliani under Section 302 IPC are set-aside. Instead thereof, the appellant is convicted under Seciion 304 Part-1 IPC and sentenced to the period already undergone, which comes to'about 8 years 8 months. It is stated that the appellant was released on bail on 31.03.2003. His bairbonds are canceiledand surety stands dischaiHed^ Sd/- Sunil Kumar Sinha Judge ihvna Sd/- B.S. Sharroa Judge /7