HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHRI R.N. CHANDRAKAR. JJ Appellant (InJail) Respondent Versus CriminalADpeal No.54of1994 Vishwanath, S/o Jhagna, Caste - Uraon, aged about 35 years, R/o Taragi, P.S. Batouli, Distt. Surguja (M.P.) (Now C.G.) State of Madhya Pradesh (Now Chhattisgarh) Through Police Station-Batouli, Distt. Surguja (CG) Present: Mr. F.S. Khare, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. ORAL JUDGMENT (Delivered on ^ June, 2010) PerDhirendra Mishra, J 01. This criminal appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 12th October, 1993 passed in S.T.No.256/91, whereby learned Sessions Judge, Ambikapur, after holding the appellant guilty of committing murder of Bhukharam, convicted him under Section 302 of the IPC andsentenced him to life imprisonment. 02. Case of the prosecution, in brief, is that wife of the deceased developed illicit relationship with the appellant and she started living with him as hisconcubine. On accountof this, they had inimical relationship with each other. On 22.10.1991 in the evening, deceased Bhukharam and Jairam went to the house of Vishwanath when Vishwanathassaulted the deceased with a wooden plank on his head, as a result, he became unconscious and fell down. He was firstly admitted to Primary Health Center, Batouli and from there he was referred to District Hospital, Ambikapur, where he succumbed to the injuries on 24.1 0.1991.; Report of the incident was lodged by Budhuram (PW-1) - brother of thedeceased on 23.10.1991 atabout 12.45 hours, whereupon offence under Section 307 ofthe IPC was registered against the appellant. Medico Legal Examination Report was given by Dr. V.K. Mishra, PHC, Batouli vide Ex.P/4. Afterthe deathof Bhukharam, merg intimation wasgiven from the hospital by ^s t&'S^^SS^ .Y. Dr. R.K. Bajaj on 24.10.1991 vide Ex.P/13. Afterpreparing inquest overthe dead body of the deceased vide Ex.P/3, the dead body was sent for autopsy to District Hospital, Ambikapur where Dr. R.K. Sharma conducted postmortem and gave his report of Ex.P/14. On the basis of memorandum of the appellant of Ex.P/7, weapon of offence was taken into possession vide Ex.P/8 and the same was sent to PhlC, Batouli for examination and report of Dr. V.K. Mishra in this regard is Ex.P/6A. 03. After eompleting investjgation, charge sheet was filed in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Sessions Judge for trial. Learned Sessions Judge framed charge under Section 302 of the IPC against the appellant, who abjured his guilt. 04. The prosecution in order to establish charge against the accused/appellant examined 13 witnesses in all. Thereafter, statement ofthe accused was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. 05. Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in para-1 of this judgment. 06. Homicidal death ofdeceased Bhukharam is not in dispute. Even otherwise, from the evidence of Jairam (PW-6), who has witnessed the appellant assaulting the deceased on his head and further on the basisof evidence ofDr.V.K. Mishra,who first examined the deceased, gave Medico Legal Examination Report of Ex.P/4 and found lacerated wound on his scalp of size5 x ^ x Vz cm, contusion ardund the wound of size 8x6 cm, contusion on left frontal region of size 8 x 6 cm and further from the evidence of Dr. R.K. Sharma (PW-13),; who conducted postmortem and proved his report of Ex.P/14, in which he also noticed the injuries found by Dr.V.K. Mishra on the person of the deceased and on dissection also found 500 CC blood in the layers of the scull, clotted blood, right parietalbone fracture, fracture line extending from parietal bone up to ear and further opined that the deceased died as a result of coma due to grievous head injuries and the same was homicidal in nature,: homicidal death of Bhukharam is established. 07. Learned trial Court relying upon the evidence of eyewitness Jairam (PW-6) has held that the injury present over the head of the deceased, which resulted in his death, was caused by the appellant. Defence of the appellant ./'s^^^ l^l ^tei.::E ^ that he assaulted the deceased in exercise of his right of private defence has been disbelieved on the ground that the appellant has not examined any witness to substantiate his defence nor he sustained any injuries. 08. Shri F.S. Khare, learned counsel for the appellant, argues that even if it is held that the appellant was responsible for causing fatal injury to the deceased, his conviction under Section 302 of the IPC is illegal as the incident occurred on the spur of moment when the deceased and Jairam came to the appellanfs house, pickup quarrel with the appetlant and as a result, on sudden provocation, the appellant without premeditation assaulted the deceased and gave only one blow on his head. The appellant had neither any intention to cause death ofthe deceased nor he had knowledge that the injury he is causing may result in his death. Bhukharam died in hospital after two days on 24.10.1991 while undergoing treatment and therefore, offence against the;appellant does not travel beyond Section 304, Part-llofthelPC. 9. On the other hand, learned counsel for the State supported the impugned judgment. 10. We have heard learned counsel for the respective parties and perused the material available on record as also the impugned judgment. 11. Report of the incident was lodged by Budhuram on the next day of the incident. The appellant has been named in the FIR as perpetrator of offence. lnitially,offence was registered under Section 307 ofthe IPC, however, after his death on 24.10.1991, charge sheet was filed for the offence punishable under Section 302 of the IPC. l 12. So far as involvement of the appellant in the crime in question is concerned, the trial Court on;due appreciation of evidence of Jairam, who accompanied the deceasedjwhen both of them went to the house of appellant on the date of incident, and further considering that Jairam had immediately narrated the incident to complainant Budhuram, who lodged a named reportagainst the appellant, has held that the prosecution has been able to prove beyond reasonable doubt that the appellant was responsible for assaulting the deceasedwitH lathi on his head. On close scrutiny of the evidence of Jairam, Budhuram and the fact that the dead body of Bhukharam was lying in front of the house of the appellant and the weapon of offence was seized at the instance of appellant, we are of the opinion that the trial Court has rightly arrived at the conclusion that the prosecution has proved involvement of the appellant in the crime in question beyond reasonable doubt. 13. Indisputably, Budhuram lodged the report mentioning therein that on 22.10.1991 in the evening Bhukharam and Jairam both of themwent tothe house of the appellant to quarrel with him with respect to some old dispute and the incident occurred in the house of the appellant. From the evidence available on record, we also fjnd that wife of the deceased was not residing with the appellant at the relevant time as is evident from the evidence of PW-4 Kenduram, who has ideposed that wife of the deceases started residing with the appellant as his keep 8-10 months before the incident and after residing for a month, she went to her parental home. Therefore, considering the fact that the incident occurred in the house of the appellant when the deceased and Jairam went there and picked up quarrel on account of old animosity and at that juncture, the appellanton the spur of moment, without premeditation, as alresult of sudden provocation assaulted the deceased with a wooden plank on his head and caused two injuries on his head resulting in his death, we find force in the argument of learned counsel for the appellant that in these circumstances, offenceagainst the appellant does nottravel beyond Section 304, Part-11 ofthe IPC. Learned counsel for the appellantsubmitted that the appellant was arrested on 24.10.1991, he remained in jail throughout the trial and was released on bail by thisCourt on 24.4.2002 and as such, has already undergone more than10 years ofjail sentence. The aforesaid fact is not disputed by letrned counset forthe State. 14. In the result, the appeal is partly allowed. While settingaside conviction of the appellant under Section 302 of the IPC and sentence imposed thereunder, we holdithe appellant guilty under Section 304, Part-11 of the IPC and sentence him for a period already undergone by him. He is on bail, therefore, his bail bonds are discharged and he need not surrender. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^ / ^