llia!3?to!i^>..,,—^ HIGH COURT OF CHHAmSGARH. BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. Cnminal ABBealJIo. 609 of2006 C.O. Kanwar (% Shiv Prasad Kanwar Vs. State of Chhattisgarh JUDGMENT BS?~5 For consideration Sd/- SunU Kumar Siaha Judge HON'BLE SHRI JUSTICE R^JEEV GUPTA Sd/- ChiefJustice Post for Judgment : /0/02/2011 Sd/- f 1—T HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. Criminal Aooeal No. 609 of 2006 •^ii- '^ _ ^ APPELLANT RESPONDENT C.O. Kanwar @ Shiv Prasad Kanwar, S/tf Goro Kanwar, Aged about 35 years, Occupation- Labour, R/o ViUage- Jharan, Thana- Lailunga, District- Raigarh (C.G.) Versus State of Chhattisgarh, Through P.S. Lailunga, District- Raigarh (C.G.) APPEAL UNDER SECTION 374 (2t OF THE CODE OF CMMINAL PROCEDURE Aooearance : Mr. S.K. Tiwari, Advocate for the appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (10.02.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J: (1) This appeal is directed against the judgment dated 27.7.2006 passed in Sessions Trial No. 44/2006 by the Fourth Additional Sessions Judge (F.T.C.), Raigarh (C.G.). By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to further undergo R.I. for 2 months. !;^1 A?J v^ ^ ^SK^ Criminal Appeal No. 609 of2006 (2) The facts, briefly stated, are as under:- Deceased- Tunaram was neighbour of the appellant. He was residing with his son, Jageshwar (PW-1) and wife Urmila (PW-2) near the house of the appellant. The appellant was suspecting illicit relations of the deceased with his wife. On 15.2.2006 at about 10.00 p.m., the appellant called the deceased. A quarrel began between them. In the said quarrel, the appeUant assaulted the deceased by^hands 8s fists. The incident was witnessed by Jageshwar (PW-1) and Urmila (PW-2).. They took the deceased to their house. The deceased was complaining pain in his abdomen. He was not taken to fhe hospital and his elder brother was caUed. On 17.2.2006 the deceased was brought to village- Bagudega, where he died at about 12.00 Noon. Merg intimation (Ex.-P/S) and First Information Report (Ex.-P/6) were lodged by the brother of the deceased. After giving notice (Ex.-P/2) to the Panchas, inquest (Ex.-P/S) on the body of the deceased was prepared and the dead body was sent for post-mortem to PHC, Ledlunga. The post-mortem examination was conducted by Dr. Vishwanath Nayak (PW-11). He noticed that the liver of the deceased was ruptured, which was the cause of death and the death was homicidal in nature. The post-mortem report is Ex.- P/8. (3) The learned Sessions Judge relying on the testimonies of Jageshwar (PW-1) and Urmila (PW-2) convicted the appellant u/s 302 IPC and sentenced him as aforementioned. (4) Mr. S.K. Tiwari, leamed counsel appearing on behalf of the appeUant, argued that the incident took place in a sudden quarrel; Criminal Apoeal No. 609 of2006 l'8i®31.i>ii:.;.»...,.; l -•"•"-t!a»s3g^ '"•^'^ no weapon was used; the appellant assaulted the deceased by hands & fists; therefore, there was no preparation or premeditation and there was no intention of the appellant to commit murder of the deceased. He submitted fhat in the above facts and circumstances offhe case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment under sonie lesser Section preferably Part-II of Section 304 IPC. (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) A perusal of the evidence of Jageshwar (PW-1) and Urmila (PW-2) would show that on the fateful night at about 10.00 p.m., the deceased was called by the appellant. After sometime, they heard some noise. When they came out frorn their house, they saw that the appellant and the deceased were quarrelling and the appeUant was assaulting the deceased by legs. They took the deceased to their house. The deceased was not taken to fhe hospital and ultimately, he was taken to village- Bagudega where he died at about 12.00 Noon on 17.2.2006. The evidence ofthese 2 witnesses would show that there was no preparation or premeditation of the appellant to commit murder of the deceased. Had the appellant an intention to commit murder of the deceased, Criminal Appeal No. 609 of2006 ® he would have used some weapon. The appellant, caiae to the house of the deceased unarmed, he called the deceased outside the house, then after sometime the above witnesses heard noise of quarrel and saw that the appellant had assaulted the deceased by legs. (8) Section 304 IPC provides the punishment for culpable homicide not amoiinting 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 ainounted to murder, but for its having faUen 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 wiU be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The Erst 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 setf-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 Criminal Apceal No. 609 of2006 sss Sf.s»s:Ss^ that a particular consequence should ensure. For atta-acting 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 thing to achieve a particular resiilt, whereas, the knowledge is an awareness which attributes to be well informed that a partieular result may happen by doing a thing. (9) If we apply the above principles in the facts and circumstances of the case on hand, certainly the case of the appellant would fall under Section 304 Part-II IPC because the act of the appeUant was committed without premeditation and preparation in a sudden quarrel without any intention to commit murder of the deceased. But, the act of the appellant attributes his knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. (10) For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appeUant u/s 302 IPC are set-aside. Instead, fhe appellant is convicted u/s 304 Part-II IPC. The appellant is injail stnce 19.2.2006. He has already undergone for a period of about 5 years, therefore, he is sentenced to the period already undergone by him. He be set at liberty, forthwith, if not required in any other case. Sd/- Chief Jiistice •} Sd/- Sunil Kumar Sinha Judge ^^afcbi