HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble ShriRaieevGunta.C.J. & Hcm'ble ShrlSunUKumar Sinha. J. Criminal AppealJIp. 448 of 2002 *j. Kunjami Hurra Vs. State of-Chhaftisgach JUDGMENT ^. For consideratiorL Sd/- Sunil Kuinar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 :l;s<1^ ..-::» ChiefJustice ( g> /07/2009 Postfor Judgment : ^/07/2009 Sd/- Sunil Kumar Sinha Judge ,ilS-.,.- ^t^s^SSSS^^^s a^ •^sSS^t^^S^i^.:-i^^^^ssS^^^^^xs^ SSS& HIGH COURT OFCHHATTISGARH. BILASPUR CORAM: vHon^le^hrtRaieevGupta, C.J. & Hon'bleShri SunU Kuaiar^inha, J. Crimmal^Atipeal Np. 448 of 2002 APPELLANT RESPONDENT Kunjami Hurra, son of Kunjami Budhu Muriya, Aged about 47 :56ears, Occupation ^ricfalture, 'residenty of village Gongpal, P.S. .Kunw£E;Konda, Distt. Dantewad'a(C.G). Versus State of Chhattisgarh, Through Police Station Kunwa Konda, Distt. Dantewada(C.G.) (Appeal underSection 374 (2) ofTheCodeofCriminal - Procedurel \ '• ' . • ' • ' ' • • Appearance: Mr. Ratindra Mishra, Counsel forthe appellant. Mr. Ravindra Agrawal, Panel Lawyer, for the State. JUDGMENT (06.07.2009) Following judgment. of the Court was delivered by Sunil Kumar Sinha, J. (|1) Appellant Runjami Hurra stands convicted u/s 302 IPC and sentenced to undergo imprisQnment fpr life and to pay fine of Rs.500/-, with default sentence, by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.327/20ai on ll*h of I<'ebruaiy, 2002. . - 'f. :1 li!H:ll :jl Criminal Appeal No. 448 of2002 (2) The facts, briefly stated, are as under:- 5-3 Deceased Kunjami Deva was the son of the the appellant. They were residing together. On 12.05.2001 at about 5 p.m., some altercation took place between the appellant and the deceased. The appellant was making allegations that the deceased had illicit relations with his mother Kunjami Nande (P.W.l). The allegations are that on account of such an event, the appellant gave a blow by kitehen knife on tbe cftest of the deceased. This was witnessed by Kunjami Nande (P.W.l, wife of the appellant and mother of the deceased), Kunjami Hungi (P.W.2, wife of. the deceased and daughter-in-law of the appellant) and Kunjami DuIa(P.W.3, brother of the appellant). The matter was reported to the police stadon by Kunjami Dula (P.W.3), on which, Merg intimation (Ex.P.5) and the First Information Report (Ex.P.l) were registered. The investigating officer reached to the scene of occurrence, prepai;ed inquest, Ex.P.2, on the body of deceased and sent the dead body for its postmortem to Prunary Health Center, Kuwa Ponda under requisition Ex.P.7 where the postmortem examination was conducted by Dr. Kumar Gautam (P.W.6) who prepared his report Ex,P.7(A). The autopsy surgeon noticed single iajuiy on the right side of the chest. In intemal examination, he found that the right lung was punctured. He opined that £he cause of death was hemorrhagic sKock due to rupture of lung and it was homicidal in nature. In further investigation, site plan was prepared under Ex.P.6, blood stained soil and .plain soil were seized from the place of occurrence under Ex.P.3 and the knife was also seized from the place of occurrence under Ex.P.4. 'The seized artieles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.P.10, but the report of tHe Laboratdry y CQuldnotbeprodyced. ':'..:•• | Criminal Aupeal No. 448 of 2002 After completion of the usual investigation, the charge sheet was filed in the Court of C.J.M., Dantewada, who in turn committed the matter to the Sessions Court, Bastar, at Jagdalpur, where the trial was conducted and the' appellant was convicted . and sentenced, as aforenientioned. (3) The conviction'of the appellant is based upon the eye- ^i witness account of Kunj*ami;Nande (P.W.l), Kunjami Hungi (P.W.2) and Kunjami Dula (P.W.3). (4) Mr. Ratindra Mishra, learned counsel appearing on behalf of the appellant has not disputed the homicidal death of deceased. He has also not disputed the complicity of the appellant m crime in questioh. Moreover, it comes in the evidence of eye-witnesses Kunjami Nande (P.W.l), Kunjami Hungi (P.W.2) and Kunjami Dula (P.W.3) that at about 5 p.m., on 12.05.2001 the appellant inflicted the knife blow on the chest of the deeeased, which caused an external injury and the deceased succumbed to that injury. The incident took place in the verandah of their hoyse in which, the appellant, deceased and the above witnesses were joinfty residing. The defence has cross examined these witnesses at length, but nothing adverse could be brought on record to show that either they were iinreliable witnesses or they are trying to falsely implicate the appellant. These witnesses are the close relatives of appellant .as well as the deceased. \ . ~ . : .. •\ ' • '? CriminalAppealNo. 448 of2002 The Supreme Courthas saidtime and again thatthe relationship is not a factorAO affect the credibility of a witness. It is more often than not a relation would not conceal actual culprit and make aUegations against an innocent person. The foundation has to be laid if plea of false implication is made. In such a case, the Court has fo adopt a careful approaeh and analyze evidence to Bnd out.]ivhether it is cogent and credible. The version of these witnesses is fully corroborated by the postmortem report. (Ex.P.7/A) as also the evidence of autopsy surgeon Dr.Kumar Gautani (P.W.6), who noticed one stab woiind on the chest of the deceased and opined that the cause of death was hemorrhagic shock due to rupture of lung and it was homicidal in nature. ,'Therefore, it was established fhat the deceased died a homicidal death and the complicity of the ..appellant in crime in question was also established and we do not flnd any iUegality or inBrmity in such findings recorded by the Sessions Court. (5) Mr.Ratindra Mishra then argued that looking to the facts and circumstanees of the case, the act comniitted by the appellant would not amount tomurder and it will be eovered under ExGeption 1 of Section 30Q IPC. (6) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer, appearing 'on behalf ofState opposed these arguments and supported thejudgment and order passed bythe Sessions CouFt.. ' , ',- ^^ Criminal Appeal No. 448 of2002 (7) We have heard learned counsel for the parties at length and have also perused the records offhe Sessions Case. \. (8) Exception 1 of Section 300 IPC states that the culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the , . *'• death of any other person by' mistake or accident. The above exception is subject to certain provisions - firstly that the provocation is not sought or voluntarily provoked by the offender as £in excuse for killing or doing harm to any person. Secondly, that the provocation is not given by anything done in obedience to the law, 'or by a public servant in the lawful exercise of the powers 6f such public servant. Thirdly, that the provocation is not given by anything done in the lawful exercise of the right of private defence. An explanation has also been added to this exception that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. (9) Jn K.M. Nanavati -vs- State of Maharcishtra. AIR 1962 S.C. 605, the Apex Court held that the test ofgrave and sudden provopation is whether a reasonable man, belonging to the same class of society, to which tbe accused belongs, and placed in the situation, in wNch the accused was placed, would be so provoked as to lose his setf-control; words and gegtyres may also, under certain circumstances, cause grave ^g^Si^lSSSSffiS CriminalAoDeal No. 448 of2002 and sudden provocation to an accused so as to bring his act within Exception 1 to Sec.300; the merital background created by the previous act of the victim, may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence, and the fatal blow should be clearly traced to the influence of passion, arising'.ifrom that provocation, and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. (10) The explanation at the end of Exception 1 of Section 300 enjoins that the question whether the provocation was grave 1 and sudden enough to prevent the offence from being miu"dered should be treated as question of fact and not as a question of law. That means each case must be considered according to its own facts and the Court has to decide the same in the particular circumstance of that case with a view to find out whether the provocation was grave and sudden enough to permit such an act committed by the accused which may fall under Exception 1 of Section 300 IPC. (11) tn the present case, P.W.3 Kunjarrii Dula stated that some altercation took place between the appeUant and the deceased. The appellant startecl making allegations against fhe deceased that he had illicit relation with his mother, that is th§~'wife 6f the appellant, which the deceased-resisted by ./ idi;£- ^iu£l- a»e"B^*^M<atfeS---'^aMa^aaii^B£^^S£^ Rao Criminal Apneal No. 448 of2002 making reply and in the said altercation, the appeUant gave a kriife blow on the chest of the deceased. It appears that the \. appellant got suddenly proVoked during the altercation and it was so grave that he could not resist himself from making a blow on the chest of the deceased by a kitchen knife. This also shows that fhere was no preparation or premeditation on the part of the appellant and thq^things happened at the spur of moment when the appellant losfc his self-control while making such aUegations against the deceased. (12) In the facts and circumstances of fhe case, we are of the opinion that the act of the appellant would not beone puniShable u/s 302 IPC'but he shall be liable for punishment u/s 304 Part-I IPC. ' (13) Accordingly, the appealis partly allowed. The conviction and seritence awarded tp the appellant u/s 302 IPC are set aside. Instead thereof, the appellant is convicted u/s 304 Part-I IPC and sentenced to undergo R.I. for 10 years. It is stated that the appellant.is iri jail since 13.05.2001. He shall be entitled to set-off the period already undergone by him. L Sd/- CltiefJustice SdA Suni] Kumar Sinha Judge ^^^iETi.Si^r^" •^^^^^^^^^if-^iil^s^