^.^^^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1556 of 1994 Dallu alias Angandas Vs. StateofM.P. . (Npw State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA ^^^T^s- --^J - ^ Sd/- CStief Justice r Post for Judgment :^/03/2011 Sd/- , Sunil Kumar Sinha Judge ^,,; ;:'""!>3S^. ...s'SSis. % :';S;B|'!, i )'l -i,; '!y',.^ :r'^s^-'" HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 1556 of 1994 Dallu alias Angandas, aged about 41 years, son of Rama Satnami, Occupation- Cultivation, Resident of village Sirsa, Police Station and Tahsil Bemetara, District Durg, M.P. (Now Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh), (Criminal Appeal under Section 374 (2) ofThe Code of Criminal Procedure.1973) Appearance: Mrs. Savita Tiwari, Advocate for the appellant. Mr. J.A. Lohani, Panel Lawyerforthe State. JUDGMENT (05".03.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 31.10.1994 passed in Sessions Trial No. 12.6/93 by the Sixth Additional Sessions .V. Judge, Durg, Camp Bemetara. Bythe impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment fbrlife. . / (2), The facts, briefly stated, are as under:- On 1,10.92, deceased- Dheeran Bai had gone to take bath in a pond in village- Sirsa. Theallegations are that theappellant came there and-committed murder of the deceased byassaulting her by '••i s A/ T. Crimmal Appeal No. 1556 of 1994 danda. Chintaram (PW-1 - son of deceased) was informed. Chintaram (PW-1) lodged the First Information report (Ex.-P/1). Merg intimation (Ex.-P/2) was also lodged. The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest.(Ex.-P/7) on the body of the deceased. The dead body of the deceased was sent for post-mortem to Government Hospital, Bemetara vide memo Ex.-P/3. The post- mortem examination was conducted by Dr. Vinay Kumar Tamrakar (PW-2). He found followinginjuries on the body ofthe deceased:- (i) Lacerated wound 3 inch x 1 inch on the left parietal region; (ii) Lacerated wound 3 inch x 1 inch on the same region nearinjuryNo.1. There were no fractures beneath the injuries. There was no fracture on any other skull bone. He opined that the cause of death was head injury and it was homicidal in nature. The post-mortem report is Ex.-P/4. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-P/S) u/s 27 of the Evidence Act was recorded on 20.10.92 and a bamboo stick was seized at the instance of the appellant vide seizure memo Ex.-P/9. (3) On trial, the prosecution examined Nirmal Kumar (PW-3), Jagauti Bai (PW-4), Lalita Bai (PW-9) and Keshlal (PW-11) as eye-witnesses. Out of above witnesses, Jagauti Bai (PW-4) and Lalita Bai (PW-9) did not support the case of the prosecution. However, on the basis of evidence of other witnesses, the Sessions Judge held that the appellant committed /• murder of the deceased by assaulting her by lathi, therefore, he was 'v . liable for punishment u/s 302 IPC. (4) Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. She has 'f w Crimmal Aopeal No. 1556 of 1994 @ -""•"Y,.- also not disputed the involvement of the appellant in the incident. She argued that the appellant had no intention to commit murder of the deceased; in fact, on the pretext that the deceased was tonahi, the appellant gave 2 lathi blows due to which she sustained above injuries; there were no fractures beneath the injuries; the deceased was aged about 60 years, therefore, the injuries sustained by the deceased proved fatal. She argued that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made outand the appellant would be liable for punishment under some lesser Section preferably Part-11 of Section 304 IPC. (5) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) Wehave heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) So far as involvement of ttie appellant is concerned, the same is proved by the evidence of Nirmal Kumar (PW-3) and Keshlal (PW-11). They have clearly deposed that:they saw the appellant assaulting the deceased by lathi. The deceased received above 2 injuries which could be caused by /a ;. Therefore, we do not find any infirmity in the finding recorded by/theSessions Court that the appellant assaulted the deceased by lathi due to whicFTshe sustained the above injuries and died homicidal death. (8) Now we shall consider the argument of Mrs. Savita Tiwari relating to offence u/s 304 Part-11 IPC. Criminal Aopeal No. 1556 of 1994 (9) Section 304 IPC provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, .but for its having fallen 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 death, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the importantthing is that before holding the accused guilty under any part of Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned 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 the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful -doing of a thin^' to achieve a particular result, whereas, the knowledge is an aWareness which attributes.^) be well informed that a particular result may happen by doing a thing. (10) The deceased was aged about 60 years. She receivedabove injuries on account of assaujt given by the appellant by a bamboo stick. It Criminal Appeal No. 1556 of 1994 appears that on the pretext of the deceased being tonahi, a quarrel took place in village pond and the appellant assaulted the deceased who received the above 2 injuries which were superficial as no fractures were detected beneath the above iojuries. The Doctor mentioned in the post- mortem report that there was no fracture in the skull. This shows that the appellant had no intention to commit murder of the deceased and his intention was to commit injuries to her. But the act of the appellant attributes his knowledge that it was likely to cause death or to cause such bodily injury as is likely to cause death. (11) For the foregoing reasons, we allow this appeal and set-aside the conviction and sentence awarded to the appellant u/s 302 IPC. Instead, the appellant is convicted u/s 304 Part-11 IPC and sentenced to the period already undergone which comes about 4 & % years in this matter. The appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge rsai