.,»....WI(,l{W!DBUnPt.BPimW !9.3"& 8 „^t^ ^s^y HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'bleShri Sunil Kumar Sinha. J, 6^ J^:WfSt:-ls Criminal Appeal No. 1597 of1 994 Jagarnath @ Montu Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT ii'ifiiSl HON'BLE SHRI JUSTLCE RAJEEV GUPTA <^y^ For consideration £ Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice ./02/2011 ? Post for Judgment : 2^/02/2011 '-^- Sd/- Sunil Kumar Sinha Judge :i. ^a?5:- "4) .<.-.,*••' HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. iilmil APPELLANT RESPONDENT Criminal Appeal No. 1597 of 1994 Jagarnath @ Montu, S/o Jodhan Chikawa, Aged 36 years, R/o Village Rajothi, P.S. Sitapur, Tehsil Sitapur, District Sarguja, M.P. (Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh), Through Station House Officer, P.S. Sitapur, District Sarguja (Criminal Appeal under Section 374 (2)of The Code of Criminal Procedure. 1973) Appearance: Mrs. Savita Tiwari, Advocate forthe appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (26-.02.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 19 of October, 1994 passed in Sessions Trial No. 103/93 by the Second Additional Sessigns Judge, Ambikapur, District Sarguja.By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo / imprisonment for life. The fa&ts, briefly stated, are as under:- Deceased- Kamla Bai was the wife of the appellant. They had two young daughters. They were residing in village Rajothi, P.S. Sitapur, District Sarguja. The relations between the husband »r Criminal Aupeal No. 1597 of 1994 tiii.i and wife were not cordial, therefore, most oftenly wife (since deceased) used to leave the house of the appellant and reside in the houses of the near relatives. At the relevant time, i.e. on 25.12.92, the deceased and her two daughters were residing in the house of Devprasad (PW-1 ) who was jija (sister's husband) of the deceased. On 25.12.92, the appellant went to the house of Devprasad (PW-1) and took her younger daughter- Geeta with him to his house. When the deceased came to know, she went to the house of the appellant and tried to take her daughter with her. It is on this account, a quarrel begun between the appellant and the deceased. The altegations are that inthe said quarrel, the appellant assaulted the deceased by hands and fists and he also assaulted her by a bhainga (a bamboo stick which is used for taking crops on the shoulder). The incident was witnessed by Injor Sai (PW-5). Just after the incident Devprasad (PW-1), Prahalad (PW-3) and Kanti Bai (PW-4) had visited the house of the deceased. The deceased made oral dying _declaratipn before them regarding the assault given by the appellant. In the said quarrel, the deceased had received multiple abrasions and contusions and she had also received lacerated wound on the left frontal and temporal regions. The deceased was taken to the PHC, Sitapur, where she died during the course of her treatment. A report to this extent was sent to the police vide Ex.-P/12. In the post-mortem, Dr. K.K. Dutta (PW- 15) found that there was depressed fracture of 3 % cm x % cm on the right temporal bone. There was hematoma beneath the other injuries on the skuli. The Autopsy Surgeon opined that the above jnjury (injury No.9) was dangerous and it was sufficient to cause death in ordinary course of nature. Death was homicidal. The post- mortem j;epori: is Ex.-P/22. In further investigation, the appellant <was taken into custody and his memorandum statement u/s27 of the Evidence Act (Ex.-P/4) was recorded and bhainga was seized at the instance of the appellant vide seizure memo Ex.-P/5. The seized articles were sent for theirchemical examination to Forensic Science Laboratory, from where, a report (Ex.-P/19) was received. •Accordihg to the F.S..L. report, blood stains were found on the HB Criminal Apueal No. 1597 of 1994 I'llit'i wsiss cloths of the appellant and on the bhainga. However no report relating to the origin and the group of blood etc. was filed. Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. She has also not disputed the involvement of the appellant in the incident. She argued that there was a quarrel between husband and wife on account of taking daughter by the husband from the possession of the wife and in the said sudden quarrel, in heat of passion, the appellant assaulted his wife (deceased) who received the above injuries and succumbed to those injuries. Therefore, the act of the appellant would not be punishable u/s 302 IPC and he would be liable for punishment under some lesser Section preferably Part-1 or Part-llofSection 304 IPC. (4) 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. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. We have no doubt about the fact that it was the appellant who assaulted the deceased by hands and fists and thereafter he also used bhainga again^t her. Injor Sai (PW-5) deposed that he had seen the appellant assaulting the decea&ed by hands and fists. Devprasad (PW-1), Prahalad (PW-3) and Kanti Bai (PW-4) are the witnesses who immediately rushed to the house of the appellant and saw that the deceased was lying in the house of the appellant and had sustained './•^; . ^ • Criminal Appeal No. 1597 of 1994 sss^ multiple injuries. They had talked with the deceased who stated that she has been assaulted by the appellant. It is therefore clear that there was ample evidence to hold that the appellant had assaulted the deceased in his house who sustained multiple injuries and succumbed to those jnjuries. (7) Now we shall examine as to what offence, in fact, is made out against the appellant. (8) The deceased was wife of the appellant. Previously they were residing together in the house of the appellant. They had two daughters. The case of the prosecution is that on account of petty matters, the deceased used to leave the company of the appellant and she used to reside in the houses of their relatives. At the relevant time, the deceased along with her daughters was residing in the house of Devprasad (PW-1). The appellant had taken the younger daughter with him. When the deceased came to know, she went to the house of the appellant and tried to take her daughter, on which, a quarrel begun between them. Injor Sai (PW-5) is the eye-witness who has categorically deposed that he had seen the appellant assaulting the deceased by hands. When he tried to intervene, the appellant said him to go to his house and he further said that he will do nothing. Thereafter Injor Sai (PW-5) returned to his house. -This makes cle^r that initially the appellant did not use any weapon against the deceased and bhainQa must have been used at a later stage i.e. after departure of PW-5 from the place of occurrence. The above facts make it clear that on a petty matter regarding possession of the daughter, a quarrel begun between husband and wife (deceased) in Crimmal Appeal No. 1597 of_1994 .-<!S;^gl which firstly husband assaulted the wife by hands and fists and, it appears, that in heat of passion, at spur of moment, he also used bhainga to assault the wife (deceased), who received fracture on the skull bone which proved fatal. In the above facts and circumstances of the case, it does not appear that the appellant had an intention to commit murder of the deceased and there was no element of preparation and premeditation ete. Therefore, we are of the view that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made-out against the appellant and he would be liable for punishment under some lesser Section. (9) 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 knowleiige but the important thing is that before. holding the accused guilty under any p^ri: 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 Criminal Ameal No. 1597 of 1994 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 intentiqn 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 result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. (10) If we apply the above principles in the facts and circumstances of the present case, we are of the view that the appellant would be liable for punishmentu/s 304 Part-1 IPC because the act by which the death is caused was done with the intention of causing such bodily injuries as are likely to cause death. (11) In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead, the appellant is convicted u/s 304 Part-1 IPC and sentenced to undergo R.l. forlO years. The appellant was arrestedon 26.12.92.1-1e was released on bail on 4.7.2003 by order dated 22.1.2003. Thereafter he was re- arrested on 12.7.2010. Presently he is in jail.In the above manner the appellant has already served for more than 11 years. He be released forthwith, if n)St required in any other case. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge i^S