HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal AppeaLNo. 77T^oi2Q02 Chamar Singh '!• Vs. State'of Chhattisgarh JUDGMENT For consideration Sd/- Suni! Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 1;»1 Sd/- Chief Justice Post for Judgment :24/02/2009 Sd/- Sunil Kumar Sinha Judge ! • ' ' '^. • '^'."v^. ^L;-—^^ •w/^ iia,3?!?' HIGH COURT OF CHHATTISGARH. BILASPUR CORAhfl: APPELLANT RESPONDENT Hon'ble Shri Rajeev Gupta, C.J. & Hon'bl^Shri Sunil Kumar Sinha, J. CriminaLABBeal No. 777 of 2002 Chamar Singh S/o Pyari Uraon, aged 22 yrs., R/o Tihali, P.S. Tamnar, Distt.- Raigarh (C.G.) ,/Versus s. Stateof Ch'hattisgarh (ADpeal underSection 374 (2) ofThe Code ofCriminal Procedure) Appearance: Shri Abhay Tiwari, Counsel for the appellant. Shri U.N.S. Deo, Govt. Advocate, forthe State. t JUDGMENT (24..02.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant Chamar Singh stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo R.l. for 6 months by the Sessions Judge, Raigarh, in Sessions Trial No. 227/2001 on 26.4.2002. (2) The case of the prosecution is that on 26.10.2001 at about 4.20 p.m., the appellant assaulted deceased Hariram with a danda. The incident was witnessed by Nandau (PW-1), Kamla Bgj (PW-4), Gurbari (PVV-5) arid Jamuna Bai (DW-1). "%^ %,^s-;& 1 ^^(r&'" ??.-snsiPB'; Criminal Aupeal No. 777 of 200.2 iff (3) Merg intimation (Ex.-P/1) was given by Nandau (PW-1) on 26.10.2001 at about 18.35 hours, based on which, a First Information Report (Ex.-P/2) was registered at about 20.30 hours on the same day. After giving notice (Ex.-P/4) to the Panchas, inquest (Ex.-P/3) on the body of the deceased was prepared on 27.10.2001. Site plan (Ex.-P/5) was also prepared on 27.10.2001. After taking the appellant into custody his memorandum (Ex.-P/6) was reporded u/s 27 of the Evidence Act on 28.10.2001 and a danda was s.eized.from his possession under Ex.-P/7. Blood stained soil and plain soil were seized under Ex.-P/S. The S.H.O. prepared a site plan under Ex.-P/9. The dead body of the deceased was sent for its post-mortem to P.H.C., Tamnar under Ex.-P/10-A, where the post-mortem examination was conducted by Dr.(Smt.) S. Tigga (PW-6), who prepared her report Ex.-P/1 0. She noticed an abrasion admeasuring 3cm x 1.5 cm on the right cheek and a lacerated wound admeasuring 2.5 cm x.5 cm x 1.5 cm on the left temporal region of the deceased. There was no fracture. She opined that the cause of death was shock due to head injury leading to excessive bleeding and cardio respiratory failure and it was homicidal in nature. Danda was also sent for its examination to the concerned Doctor, who gave her report Ex.-P/11, according to which, the injury sustained was possible by such article; The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/14 but their report could not be produced before the Court. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Gharghpda, who in turn, committed the matter to the Court of Sessions Judge, Raigarh, where the Criminal Appeal No. 777 of2002 (31 trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. (5) The conviction of the appellant is based upon the testimonies of 3 eye witnesses namely Nandau (PW-1), Kamla Bai (PW-4) and Gurbari (PW-5) supported by the medical evidence of Dr.(Smt.) S. Tigga (PW-6). (6) Shri Abhay Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the'homicidal death of the deceased. Moreover, it comes in the evidence of Nandau (PW-1), Kamla Bai (PW-4) and Gurbari (PW-5) that the deceased was assaulted by the appellant by a danda. Dr.(Smt.) S. Tigga (PW-6) also deposed that the deceased had received the aboveinjuries, which were ante-mortem and his death was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (7) Shri Abhay Tiwari has also not disputed the involvement of the appellant in crime in question. He has only argued that the manner in which the single blow was given by the appellant to the deceased, which even did not cause any fracture, would show that the appellant was having no intention to cause death of the deceased and the act of the appellant would be punishable under some lesser Section than Section 302 IPC, preferably under Part-11 of Section 304 IPC. (8) On the other hand, Shri U.N.S. Deo, learned counsel appearing for the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. ^^ Crimmal Aupeal No. 777 of2002 ,-'.•;»• 1:S3 :^6^! (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. \. (10) PW-1, Nandau, deposed that deceased Hariram was his brother. ^ On the fateful day at about 4.00 p.m., Pyari Ram took his brother to his house. A guest namely Lambodar had come to the house of Pyari Ram. Some dispute begun between deceased Hariram and Lambodar. He was •<!. watching all this from verandah tof his house, which was at a distance of 100 metres. He saw that son of Pyari Ram namely Chamar Singh (appellant) assaulted the deceased on his head with a danda. He had assaulted twice. Hariram fell down and appellant Chamar Singh went to the police station Tamnar. PW-4, Kamla Bai, and PW-5, Gurbari, also stated in similar fashionfcThough there is some contradiction in the evidence of these 3 witnesses relating to number of assault and the place of the body chosen by the appellant, but in appreciation, it comes that the appellant has given lathi blow on the head of the deceased, due to which, he received above injuries. On due consideration of the entire evidence of these 3 eye witnesses, it appears that when some quarrel begun between the guest of Pyari Ram namely Lambodar and deceased Hariram, son of Pyari Ram, the present appellant, felt offended and all of a sudden, gave a lathi blow on the head of the deceased. Though the deceased sustained a lacerated wound on the left temporal region but there was no fracture of any underlying bone. This shows that neither the assault was premeditated nor it was caused with such an intensity which may suggest that the same was caused with an intention t6 cause death of the ^: Crjmmal Auoeal No. 777 of2002 deceased. However, the manner in which the said injury was caused to the deceased, would certainly attribute knowledge to the appellant that his such act may cause death of the deceased or it may cause such bodily injury to him which wa& likely to cause death of the deceased. (12) Section 304 IPC 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 importa^ 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. For attracting 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. Criminal Apueal No. 777 of2002 (13) Since we havs held that the intention of the appellant was lacking in this case and the evidence of his knowledge was writ large on record, therefore, we are of the considered view that the act of the appellant would be punishable u/s 304 Part-11 ofthe IPC. (14) Accordingly, the appeal is partly allowed. (15) The conviction and sentejice awarded to the appellant u/s 302 IPC are set aside. Instead, the appellant is convicted u/s 304 Part-11 IPC and sentenced to undergo rigorous imprisonment for 8 years. The appellant is in jail since 28.10.2001. He shall be entitled to set-off the period already undergone by him. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge !£ltti