HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gllpta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha, J Criminal Apgeal No. 1338 of 2003 Raghuram Vs. ‘ State of Chhattisgarh JUDGMENT For consid ration ' > Sdl- _ Sunil Kumar Smha Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA 3 W // cmef “S‘ice x Post for Judgment 2é7/07/2009 h_ "‘iéé; Sdl- ’ Sunil Kumar Smha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal Nof‘1338 of 2003 APPELLANT Raghuram S/o Budhu Muriya, aged 35 years, occupation — Agriculture, resident of Village Khutdobara, Kondagaon, P.S., Distt. Bastar (C.G.) Versus RESPONDENT State of Chhattisgarh Through Kondagaon, Distt. Bastar (C.G.) ML (Appeal under Section 374 (2) of The Code of Criminal Procedure) Q w Appearance: Ms. Minu Banerjee, Counsel for the appellant. Mr. Ravindra Agrawal, Panel Lawyer, for the State. JUDGMENT (24.07.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. ' (1) Appellant Raghuram stands convicted u/ s 302 IPC and sentenced to undergo rigorous imprisonment for life by the Sessions Judge, Bastar at Jagdalpur (C.G.) in Sessions Trial No. 490/2002 on 22nd of August, 2003. (2) The facts, briefly stated, are as under:- Deceased Budhuram was father 0f the appellant. They were residing together. In the night of 9. 10.2002, the deceased came to the house in drunken condition and assaulted the appellant by foot. On this, in heat of anger, the appellant gave a rammer (Musar) blow on the head of the deceased’ The deceased received 1L an injury on his head and succumbed to the said injury on the next day. On information to the villagers, a village Panchayat was 2 @ Criminal Appeal No. 1338 of 2003 conducted. The appellant made extra-judicial confession in village Panchayat. The matter was reported to the concerned police station by one Rajuram (PW—1), on which, a Merg intimation (EX.— P/ 17) and a First Information Report (EX.-P/ l8) were registered. The Investigating Offlcer reachedxto the scene of occurrence, gave notice'(Ex.-P/8) to the Panchas and prepared inquest (EX.-P/5) on the body of the deceased. The dead body of the deceased was sent for its post—mortem to Primary Health Centre, Kondagaon, where the post—mortem examination was conducted by Dr. S. Lonhre (PW—7), who prepared his report EX.—P/7—A. The Autopsy Surgeon found one lacerated wound on the left portion of skull. "s‘fl‘here was no fracture beneath the injury. He opined that the cause of‘death was extra-dural and intra-dural haemorrhage and it was homicidal in nature. 4 In further investigation, after taking the accused/appellant” into custody, his memorandum (Ex.—P/ 1)4was recorded u/s 27 of the Evidence Act and a rammer was seized at the instance of the appellant under Ex.-P/2. Site plan was prepared under Ex.-P/ 13. Another site plan was also prepared by Patwari under Ex.-P/ 16. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.—P/ 14, from Where, a report (EX.-P/ 15) was received. According to the F.S.L. report, blood stains were found on rammer, loongi of the appellant and cloths of he deceased. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Kondagaon, who in turn committed the matter to the Sessions Court, Bastar at Jagdalpur, where the trial was conducted and accused/appellant was convicted and sentenced’ aforementioned. as M«1 0(3) The conviction of the appellant is based upon the eye witness account of Lekhram (PW—3) and extra—judicial confession made before ,,I/ Rajuram (PW—l). l t 3 @ Criminal Appeal No. 1338 of 2003 (4) Ms. Minu Banerjee, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Lekhram (PW—3) that the deceased was assaulted by the appellant; the appellant made extra-judicial confession before Raj’uram (PW—1) and the Autopsy Surgeon also found one lacerated wound on the skull of the deceased and opined that the cause of death was extra-dural and intra-dural haemorrhage and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. u f (5) Ms. Banerjee has also not disputed the complicity of the appellant in crime in question. She argued that it is a case in'which father came in the night in drunken condition and assaulted the son by giving kick by leg, due t'o which, the son, in heat of anger, gave a rammer blow on the head of the father, which shows that there was no preparation or premeditation, therefore, the act of the appellant would not be punishable u/ s 302 IPC and he would have been punished under some lessor Section preferably Part—II of Section 304 IPC. 4 (6) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) on the date of incident. On the fateful night, he was present in the / house of the appellant. He deposed that the appellant and the deceased / Lekhram (PW-3) is a child witness, who was aged about 7—8 years \ both were in drunken condition. The appellant assaulted the deceased \\: @ Criminal Appeal No. 1338 of 2003 by a rammer. In cross examination, he admitted that a quarrel took place between the appellant and the deceased. Dr. S. Lonhare (PW—7) deposed that he noticed only one lacerated wound on the left portion of the skull of the deceased. The post—mortern report and the evidence of the Doctor would‘sho’rw that there was no fracture beneath the said injury and the cause of death was extra—dural and intra-dural haemorrhage. A11 this show that firstly a quarrel took place between the appellant 8a the deceased and the appellant, in heat of anger, picked up the rammer and gave single blow on the head of the deceased. There does not appear to bepremeditation or preparation on the part of the appellant which may show his intention to cause death of the deceased. In the facts and circumstances of the case, though it appears that there ‘- was no intention of the appellant to cause death of the deceased but it cannot be denied that he was having knowledge that his such act was likely to cause his death. Therefore, in our considered View, the appellant was not liable for punishment u/ s 302 IPC and he would have been punished u/s 304 Part—II IPC. (9) Accordingly, the appeal is partly allowed. The conviction and sentence. awarded to the appellant u/s 302 IPC are set aside. Instead x thereof, he is convicted u/s 304 Part—II IPC and sentenced to undergo rigorous imprisonment for 7 years. It is .stated that the appellant is in jail since 12.10.2002. He shall be entitled to set of the period already undergone by him. Sdl- . vatti -2 r 5di- Sunil Kumar Sinha ' Judge Chief JuSu’ce ' ’ ‘ V