‘ XI—HC—78 ./v’ / a1 ~ zoogg 6.9x. W'- m ‘ .CT$& > “M.O . .u mm(W) a F, Present: I Shri Ahhay Tiwari, counsel for theappellantf Shri Akhil Mishra, Panel. Lawyer for the State/ respondent. I Division Bench: — Ho'n’ble Shri I ' Hojn’ble Shril Dhirendra Mishra, JJ. ORAL I(Deliverec' L.C. Bhadoo, J. Learncd counsel for the é is in detention since May, 2001, years 10 months, therefore, the : ‘ Learned counsel for the may be heard finally. With the consent of learr heard finally. ‘This appeal is directed ag order'of sentence dated 5&1 Jun: a Raigam in sr. Name/2001 w ”(m{w‘, L.c. Bhada‘o 8; JUDGMENT on 26-3—2007) [ppellant submitted that the accused thereby he is in detention for about 5 appeal itself may be heard finally. state also submitted that the appeal Led counsel for the parties, appeal is ainst the judgment of conviction and - 2002 passed by the Sessions Judge, hereby learned Sessions Judge after RTLO. \ mwerwm > APPELLANT: Ramlal § $3 Kanwar S/o Dhobiram Kanwar, l’ ' Kanwar, aged 21 years, R/o Pusalda, RS. Gharghoda, District Raigarh (C.G.) Versus RESPONDENT: ' State of . ‘ Chha'ttisgarh, Through RS. Gharghoda, District XI—HC-78 o Hwym, W 10 .o.~.o.. W 200 WW(W) WWW WWW mmwm mmffwm ésmm holding the accused guilty for commissicn of offenca under Section 302 of tho I.P.C., for committing murder of Salikram, sontencod him to undergo imprisonment for default of payment of fine. to fu: life 8a to pay a fine of Rs.2,000/-, in Case of the prosecution ‘ther undergo RI. for 6 months. in brief, is that 2-3 daye before 4—5— 2001 Salikram (since deceased) assaulted Dhobiram, therefore, in that connection, a meeting c village Sarpanch, Panch, S Dhobiram were present. In tl' Salikram has assaulted him, ( not assaulted him, Ramlal son of Dhobiram attacked Salikram with a club on his head and leg. Th ‘f Panehayat.was convened in which 1likram, Dhobiram, Ramlal son of .e Panchayat, Dhobiram informed that fn' which Salikram replied that he had e matter was reported next day in the police station, Salikram was taken for treatment to the Government Hospital, Raigarh. As Salikrarn was not treated in a proper manner, therefore, his family took hi n to the residence. Ultimately, he succumbed to the injuries on 23—5—2001. Receiving this report, Station House Officer, Police S P/l for commission of offence Salikram succumbed to the in into Section 302 of the I.P.C. Merg intimation EX.—P/21 was given by The Investigating Officer left to the house of the deceased. He prepared inquest EX.—P/3 on the body of Salikram, aftervgiving notice E ticket of Salikrarn was seized was wepared. Weapon of offence i.e. bamboo club was seized under Ex.—P/9. The blood stained so l and plain soil was seized under Ex.- P/lO. The injuries of Salikr m were examined by PW—8 Dr. M.M. P.T.O. tation Gharghoda registered F‘.I.R. Ex.— under Section 307 of the I.P.C. As uries, therefore, offence was converted x.—P/4 to the Panchas. The discharge tinder EX.-P/5. The site plan EX.—P/7 Lagin Singh on 23rd May 2001. XI-HC—78 mm,m,m . warm In 200 WWREEW‘) mww WWW wwwm mmffwm haw-m 1“ Class, Gharghoda, who in turn committed the case to the Sessions Judge, Raigarh, Where the prosecution examined 14 witnesses. ‘ recqrded under Section 313 C appearing against him in the prosecution evidence. He stated that he is innocent and has been falsely Learned Sessions Judge i respective parties convicted aforementioned. Wase‘ He prepared ‘injuxy repcrt Ex.—P/ 12. The post—mortem on the body of Salikram was conducted by PW»1O Dr, M. L. Thawait ofv Community Health Centre, Gharghoda. .He epined that cause of death was Syncope and shock because of injuly to skull bone, His report is EX.—P/ 16. After completion of inves‘igation, charge sheet was filed in the Court of Judicial Magistrate, Statement of the accused was r.-P,C. in which he denied material Learned counsel for the a death of Salikram, Moreover, PV the meeting, has stated that acct club. The above evidence of P evidence of PW—lO Drt M.L. Thaw postmortem on the body of tt temporal and parietal bones. Th and‘bone! The cause of death Therefore, it is established that death of the deceased was homicidal in nature, P.T.O.r implicated in the crime. ifter hearing learned counsel for the and sentenced the accused as ppellant has not disputed homicidal 7—7 Sukhmat Bai, who was present in ised Ramlal attacked 'Salikram with a W-7 is corroborated by the medical ait. He has stated that he conducted e deceased, There was fracture of ere was blood clot between the brain was shock. Death was homicidal. We have heardvlearned counsel for the parties. XI-HC-78 . ‘....~~. W 200 mam ammm wwwm WW§WW ‘ éawm As far as involvement of 1 concerned, learned counsel disputed to that extent also. PW stated that on the fateful da§ Ramlal, and her husband were with a club on his temporal reg blood started oozing out of the Ll nCODSCIOUS, PW-4 Santosh Moreover, this ocular evidence evidence, PW—8 Dr. M.M. Was: working as doctor in the Raigarl of Salikram. There were injuric was oozing out of the right yea region. Haematoma in the size swelling on the right shoulder. present on the left calf region. that on 246—2001 he condue deceased. There was fracture 0‘ I blood was present between brai in nature. Cause of death was s ocular and medical evidence established. Learned counsel for the E 2 days before the incident the dc namely; Dhobiram, in that com that Panchayat, Dhobirarn infor which was denied by Salikram. kw.“ l he accused in the crime in question is "or the accused/appellant has not —7 Sukhmat Bai, wife of Salikram, has ’ Panchayat was convened in which present. Ramlal attacked her husband on, chest and leg, as a result of which Her husband became has corroborated evidence. the stands corroborated by the medical - has stated that on 5—5—2001 he was 1 Hospital where he examined injuries as on the body of the deceased. Blood r. There was injury on the temporal of 4” X 33/2” was present. There was Bruise in the size of 2" x 14” was PW—lO Dr. M.L. Thawait has stated ted postmortem on the body of the ‘1 temporal and parietal bone. Clotted n and bone. Injury was ante mortem ghock. Therefore, in View of the above , involvement of the accused is nose and ear. HW,WW,W mam-(113W) .ccused/appellant argued that in—fact :ceased attacked father of the accused lection, Panchayat was convened. In med that Salikram has attacked him, All of a sudden, hearing the reply of P.T.O. XI-HC—78 WWWWW iW 5 7 .’ o oo...oo.~o.o....¢o... .\ WW(W> WWW Wwa‘fffwm WWW MWWW %a1'——?m311%3f Salikram, Ramlal became angry and he attacked Salikram with a club which he was canying, as a‘ rasult of which Salikram sustainad injurias. He was hospitalized and was discharged on 15*11 May 2001‘ However, he died on 23rd May 2.001. Thercfore, the accuscd attacked the dcceased in a heat of passion, all of a sudden, Without pre— meditation, when Salikram deceased said that he has not attacked Dhobiram, He submitted that in the above circumstances offence against the accused under Section 302 of the I.P.C‘ is not made out. The offence does not travel beyond Section 304 Part—ll of the I.P,C. On the other hand, learned counsel for the State/respondent supported the judgment of the :rial Court. Factual aspect of the argument advanced by learned counsel for the appellant is almost correct that a Panchayat was convened in respect of beating given by Sa ikram to Dhobiram, When Dhobiram informed Panchayat that Salikrarn has attacked him, same was denied by Salikram, that fact nfuriated Ramlal and he attacked the deceased with club, In this ccnnection, evidence of PW—14 Dr. S. N. l Keshari is relevant, who examined injuries of Dhobiram on 5—5—2001 in'the C.H.C. Gharghoda. He noticed 5 abrasions and one contusion on the body of Dhobiram. Therefore, in fact, Salikram attacked Dhobiram, in that connection, Panchayat was convened, when Salikram denied the allegation of Dhobiram, that enraged Ramlal and he attacked Salikram on his he ad with a .club which he was carrying. PW-lO Dr. M.L. Thawait in his evidence has not stated that injury caused on the head was sufficient in the ordinary course of nature to cause death. The fact remains that Salikrarn was discharged from the hospital on 15—5—2001 and died on 23—52001 after about 19 days of 1 P.T.O. l XI—HC—78 Hm,mhm ‘ 3‘} 6 o v .\ Wm<W> WWW WW&'WWA WWW mmy%am $WW the incident that too he was not given proper traatmont. Therefore, the above circumstances are suggestive of the fact that from the above circumstances it cannot be interred that the accused had intention to cause death. of the deceased, but the manner in which, the force with which, the part of the body wrere injury was inilicted, it can safely be inferred that the accused had knowledge that by attacking with club on the head, he may likely to cause death, therefore, knowledge can be attributed to the accused, as such offence against the accused under Section 304 Part—II of the l.P.C, is made out. For the foregoing reasons, we are of the considered opinion that conviction and sentence imposed upon the accused under Section 302 of the I.P.C. cannot be sustained. In the result, the appeal partly succeeds. Conviction and sentence imposed upon the accused under Section 302 of the I.P.C. are set aside. Instead thereof, he is convicted under section 304 Part— Il of the I.P.C. and sentencec to undergo RI. for 7 years. As per judgment, accused is in detention since 6—5—2001 till today, therefore, accused shall be entitled for set off for the above detention period against sentence imposed upon him. In View of the above M.(Cr.)P. No.2238/2003 & LA, Sd - Dhirendra Mishra / Judge n1 I : No§§72/QOO2 stand disposed of, Sd/— L.C. BHADOO Judge P.T.O.