'^.. ^•S&SSk. S """BS <f "V^ ff .J / A. ] 'A/ y iiGH COURT OF CHHATTtSGARH AT BILASPUR iHRI DHiRENDRA MISHRA. & •L! ,JJ Qn Jail] Chenda atias Chanda Ram son of Siya Ram Sahu, aged about 23 years, cultivator and student of XII Class, R/o Deori, P.S. Puigaon, Dist. Durg, at ptssent in Raipur Centra! Jail, M.P. (now C.G.) State of Madhya Pradesh (Now Chhattisgarh) Presenh Mr. Arun Kochar, counsel for the appellant. Mr. UNS Deo, Govt. Advocate for the State. ORAL JUDGMENT (18th June, 2010) Per Dhirendra Mishra, J 01. This criminai appea! under Section 374(2) of the Code of Criminat Procedure is directed against the judgment of conviction and order of sentence dated 25 Apri!, 1994 passed in S.T.No.363/93, whereby learned II! Additional Sessions Judge, Durg,. after holding the appeilant gujtty of commitiing murder of Ramgulat, has convicted him under Section 302 of the !PC and sentenced him to life imprisonment. However, learned trial Court has acquitted co-accused Anjoriram from the charges. 02. Case ofthe prosecution, as projected in the impugned judgment, are that one Kishore Kumar threw a stone towards a cat, which landed on the terrace of Anjoriram where gram was kept. Anjoriram and the appellant hurled abuses at Kishore Kumar and the appellant also beat him by a lace. JWhen Kishore started weeping, his mother Heminbai came there and asked the accused persons as to why they beat Kishore, whereupon they also ibused H^minbai. When Ramgulal - father of Kishore Kumar - reached the place of incident and while he was engaged in scuffle with Anjoriram, the appeiiant picked up a wooden plank used for support to the builock cart and ' assautted by it to Ramguial on his head with fufl force, as a result, Ramguia! fell there. He was taken to home by Hanuman Sharan, Kaluram and Kartikram and ther^after, he was taken to Durg Hospital on a tempo. in the meanwhile, report was lodged in the police outpost of hospitai by t-tanuman 'A4 'iv/l Sharan against the accused persons. The deceased died at about 8.25 pm in Sector-9 Hospitai, Bhilai. After registering the crime vide Ex.P/25 under Section 307 read with Section 34 of the IPC, medico legal injury report of the deceased was obtained vide Ex.P/15. After his death, inquest was prepared vide Ex.P/2. Thereafter, dead body was sent for autopsy to Districf Hospital, Durg, where Dr. R.N. Pandey (PW-14) condu(ted postmortem and gave his report vide Ex.P/9. Treatment papers i.e. OPD tickets and bed-head tickets were taken into possession vide Ex.P/5 and P/6. Death report was also obtained from Shiiai Steel Plant vide Ex.P/7. Weapon of offence - support of the bullock cart - was taken into possession on being produced by Genda @ Chinduram yide Ex.P/12. Bloodstained Lungi was taken into possession from Kaluram vide Ex.P/13. Spot map was prepared vide Ex.P/18. Articles seized during investigation i.e. wearing apparels of the deceased, weapon of offence etc. were sent for chemical examination to FSL, Raipur and report of the FSL is Ex.P/24. 04. After completing investigation, charge sheet was fiied in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer for triai by the learned Additional Sessions Judge. Learned Additional Sessions Judge framed charges under Section 302/34 of the IPC against both the accused persons, who abjured their guilt. 05. The prosecution in order to establish charge against the accused/appellant examtned 19 witnesses in ail. Thersafter, statements of the accused persons were recorded, in which they denied the circumstances appearing against them in the prosecution case and pleadsd innocence and fatse impiication. They a!so stated that Ramgulal died as a result of accident and they have been falsely implicated. 06. Learned trial Court, after hearing counsel for the respective parties, convicted and ^entenced the appellant as mentioned in para-1 of this judgment. However, co-accused Anjoriram was acquitted ofthe charges. '*>«- 07.- Homieidal death of deceased Ramguial is not in dispute. Even otherwise, from the evidence of eyewitnesses Heminbai (PW-2), Kishore Kumar (PW-5), Latabai (PW-9) & Kartikram (PW-11), who have witnessed the assault and furtter on the basis of evidence of Dr.R.N.Pandey (PW-14), who donducted postmortem and proved his report of Ex.P^, in which he •^ found the following injuries and opined that the deceased died due to coma as a result of head injuries, which were sufficient in the ordinary course of nature to cause death, homicidal death of Ramgulal is established. Iniunes on external examination: (i) one iacerated wound of size 4 x 3 x bone deep on the left occipital region; (ii) contusion extending from forehead up to nose; Iniurjes on internal examination: both sides of fronta! bones were e"i-:M! ':iia fractured, base of skull was fractured, nose bone was broken, left parietal and occipital bones were also fractured. "''^'•BKKaia 08. Learned counsel for the appellant submits that the incident occurred on the spur of moment due to a sudden quarrei without premeditation as the appeiiant assaulted the deceased by picidng up a nearby builock cart support and gave only a single blow on the head of the deceased. Referring to para- 7 of the deposition of Dr. Pandey (PW-14), it is argued that all the injuries sustained by the deceased, includiog all five fractures, could be caused by a singie biow and thus, the trial Court was not justified in convicting the appellant under Section 302 ofthelPC and the offence falls within Exception 4 of Section 300 of the IPC and therefore, offence against the appellant does nottravel beyond Secfion 304, Part-11 ofthe IPC. On the other hand, learned counsel for the State supported the impugned judgment. 10. We have heard tearned counsel for the respective parties and perused the material available on record as also the impugned judgment. on the evidence of eyewitnesses -5), Latabai (PVV-9) & Kartikram 11. Conviction of the appellant is Heminbai (PW-2), Kishore Kumar (PW-'11). 12. The sura'and substance of the evidence of Heminbai (PW-2) is that when she enquired from the accused persons as to why they beat her son Kishore, who was weeping, Vney picked up quarrel with her also. In the mtenwhile, her husband Ramgulal came there and enquired from the accused persons as to why they were quarreling, whereupon co-accused Anjoriram caught hold qf his neck and at that time, the appellant picked up a wooden plank and assaulted him on his head once. In the meanwhile, Bajrang, Chainu, Kaluram, ~ Hanuman Sharan, Kartik and Latabai also r^ ^"^•:- ^: il't- lla ME; KS reached there and they took her husband Ramgulal to home, from v/here he was taken to hospital. She has admitted the suggestion in the cross- examination that Ramgulal was involved in physical scuffte with Anjoriram. Further, she has denied the suggestion that her husband had thrown a stone towards Anjoriram's house. 13. On close scrutiny of the evidence of this witness, we find that she has categoricaiiy stated that whiie the deceased and co-accused Anjoriram were invoived in scuffle, the appellant picked up the wooden plank and assaulted him on his head. Her evidence is further corroborated from the evidence of child witness Kishore Kumar (PW-5), who was present at the spot from the beginning and who has deposed that when he was beaten by the accused/appellant, his mother came there and thereafter, he also called his father Ramgutal there and when his father enquired from the accused persons as to why they beat him, Anjoriram caught hold of Ramguial and Chandu (appel!ant) assautted his father on his hesad by a wooden ptank. This witness has also been cross-examined at length but he has stuck to his claim that it was the appeilant, who has assaulted the deceased on his head while he was involved in scuffie with co-accused Anjoriram. Similar is the evidence of Latabai (PW-9) and Kartimram (PW-11), who have also witnessecKhe appellant assautting the deceased by a wooden plank. 14. Thus, on the basis of evidence of the above eyewitnesses, whose version is fully corroborated by the medico legal injury report and the postmortem report as also the first information report lodged on basis of information given by PW-2, in our considered opinion, the trial Court has rightly held that the fatal blow was given by the appellant. 15. Now the only question for our consideration is - whether the offence committed by the appellant falls within any of the exceptions of Section 300 of the-fPC, as argued by learned counsel for the appellant? 16. From the.overall evidence available on record, we flnd that the quarrel started when the stone pelted by child Kishore Kumar for hitting the cat fetl on the terrace of Anjoriram wh'fese gram was kept. While Anjoriram was engaged in scuffle with Ramgulal, who came much after the initial quarrel of beating of Kishore Kumar and quarrel with his mother Heminbai, the appellant picked up a heavy wooden plank used for support of bullock cart and assaulted the deceased on his vital part head with such a foree that he sustainect fracture of both parietal bones, fracture of nose bone and fracture -^••/... ^ |:i:fl8!Ei jj, •^ i'Sf of occipital bones and died just four hours after the assauit. We are unable to accept the argument of learned counsel for the appeilant that the incident occurred as a result of sudden provocation, without premeditation on the spur of moment. From the evidence available on record, we have already pointed out that when the deceased and co-accused Anjoriram were involved in the scuffle, the appellant gave a fatal blow on the vital part head of the deceased without any provocation. Intention of the appellant is to be ^athered from the weapon of offence used for assault, the force with which and the part on which the assault was made. In the instant case, the assault was made by a heavy wooden plank with a force on the vital part head of the deceased resulting in multiple fractures of both parietal bones, nose bone and occipitat bones. 17. On the basis of aforesaid discussions, we are of the opinion that the tria! Court has rightly convicted the appellant under Section 302 of the IPC and sentenced him for life imprisonment. There is no illegaiity or infirmity in the impugned judgment. The appeal is without any substance and deserves to be dismissed. ,. • ,; 18. In the result, the appeal fails and is, accordingly, dismissed. The appeliant is on bail, therefore, his bail bonds are cancelled and he be taken into custody forthwith. /- . ---—---——__ Sd/- R-N. Chandrakar Judge Sd/- Dhirendra Mishra Judge '*«F