B^< <\<^ .\ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.669 of 1996 Appellant versus Respondent Rupan Korwa, S/o Shri Sarhu Korwa, aged about 32 years,R/o Village Khotaro, Police Station Rajpur, District Surguja State of Madhya Pradesh (Now State of Chhattisgarh) through Station House Officer, Rajpur, District Surguja Present: Smt. Kiran Jain, counsel for the appellant. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) ofthe Codeof Criminal Procedure ORAL JUDGMENT (Delivered on 29th November, 2011) Per Sunil Kumar Sinha. J.: This appeal is directed against the judgment dated 11-1-1996 passed by Session Judge, Ambikapur, District Surguja in Session Trial No.21/1995. By the impugned judgment, accused/appellant Rupan Korwa has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: Deceased Muhibai was wife of the appellant. The appellant and the deceased were residing in the same house. On 26-10- 1994, the appellant and the deceased were returning from Village Genwar. The allegations are that on the way, on account of certain ^ ^ quarrel, the appellant assaulted the deceased by hands and fist and thereafter dragged her to their house. In the morning, when the deceased became unconscious, the appellant narrated the story to his brother Andhu (PW-1). Andhu (PW-1) came to the house of the appellant and saw the deceased in unconscious condition. Thereafter, the deceased died at about 12 Noon. Father of the deceased, namely, Pilu (PW-2) was informed. He met with the appellant and asked about the incident. The appellant made extra- judicial confession before Pilu (PW-2) and admitted that he had assaulted the deceased in the night of 26-10-1994. Merg Intimation (Ex.P-1) was lodged by Andhu (PW-1). Andhu (PW-1) mentioned in the Merg Intimation about the assault given by the appellant to the deceased. He also mentioned in the Merg Intimation that the appellant had made extra-judicial confession before him. On trial, Andhu (PW-1) turned hostile and did not support the case of the prosecution. The learned Session Judge relied on the testimony of Pilu (PW-2) and held that it was the appellant who assaulted the deceased by hands and fist on 26-10-1994, therefore, he was liable for punishment under Section 302 ofthe Indian Penal Code. 3. Smt. Kiran Jain, learned counsel for the appellant has argued that looking to the facts and circumstances of the case that the incident took place on a quarrel between husband and wife and the husband (appellant) assaulted his wife (deceased) by hands and fist, there was no intention to cause the death, therefore, the offence would not travel beyond Part II of Section 304 IPC. r ^A 4. On the other hand, Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent opposed these arguments and supported the judgment passed by the learned Session Judge. 5. We have heard learned counsel for the parties and have also perused the record of session case. 6. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on circumstantial evidence. The solitary circumstance, on which the learned Session Judge has relied, is the circumstance of extra-judicial confession made by the appellant before his father-in-law Pilu (PW-2). Pilu (PW-2) has deposed in clear words that the appellant told him that he had assaulted the deceased by hands and fist when he was returning with the deceased after drinking liquor from a different village. Dr. Ashutosh Tiwari (PW-12) had performed autopsy on the dead body of the deceased. He also noticed only 1-2 abrasions on arms and lower portion of the body of the deceased. On internal examination, he found that one of the lungs was ruptured on account of penetration of fractured rib in it. It was the injury on account of which the internal haemorrhage took place and huge amount of blood stored in thoracic cavity. The doctor has opined that the death was homicidal in nature. The post mortem report is Ex.P-18. On the above evidence available on record, it was established beyond all reasonable doubts that it was the appellant who assaulted the deceased by hands and fist and the deceased died homicidal death -~^c on account of the assault given by the appellant. Therefore, the finding in this regard cannot be assailed. 7. Now, we shall consider the arguments advanced by Smt. Kiran Jain, learned counsel for the appellant that in the above facts and circumstances of the case, the punishment of the appellant cannot be sustained under Section 302 IPC and he would be liable forpunishment under some lesser section, i.e., Part I or Part II of Section 304 IPC. 8. 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 important thing 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. 9. In the present case, the incident took place when the husband and wife were coming to their house after drinking liquor from a different village. It was about 10 P.M. in the night. The allegations are that on some petty matter, the husband and wife quarreled and thereafter the husband (appellant) assaulted the wife (deceased) by hands and fist. The deceased sustained two small abrasions. The case of the prosecution is that after the quarrel, the appellant dragged the deceased, who was in drunken condition, to the house, where she slept along with the appellant in the night. In the morning, the deceased started becoming unconscious and ultimately she died at about 12 Noon. It is not a case in which the appellant had assaulted the deceased by some weapon. It is also not a case in which some planned action had taken place. It is a case in which the husband and wife quarreled after drinking liquor and the husband (appellant) assaulted the wife (deceased) by hands and fist. This shows that there was no preparation or premeditation on the part of the appellant to commit murder of the deceased and the appellant assaulted the deceased all of a sudden, after the quarrel, when both were in drunken condition. This shows that there was no intention on the part of the appellant to commit murder of the deceased. We are of the view that in the above facts and circumstances, an offence under Section 302 IPC would not be made out and the appellant would be liable for punishment under PartllofSection3041PC. ^i^^=s,<>.^^«^'^^ta»^^..^^^^,^,^^...,_^ '^y 10. Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. Instead thereof, the appellant is convicted under Part II of Section 304 IPC and sentenced to the period already undergone by him, which comes to about 10 years in this case. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge