wifl ~ x HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON’BLE Mr. JUSTICE SUNIL KUMAR $INHA & HON’BLE Mr. JUSTICE RADHE SHYAM SHARMA APPELLANT Jeetan Ram, .S/o Nanka Ram Khairwar Aged about 45 years, Caste Khairwar Occupation Agriculture, Resident of Gram Kotdeeh (Aamaara) Thana Rajpur, District urguja (C.G.) RESPONDENT Versus State of Chhattisgarh, through Police Station Rajpur. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE Appearance : Ms. Shipra Biswas, Counsel for the appeiiant. Mr.Ashish Shukla, Government Advocate for the State. ORAL JUDGMENT (14.09.2011) The following judgment of the Court was t passed by Sunil Kumar Sinha, J. (1) March 2005 passed in S.T. No.41 3/2004 by the Session Judge, Sarguja (Ambikapur). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. CRIMINAL APPEAL NO.310I2005 This appeal is directed against the judgment dated 24‘“ of p S CRIMINAL APPEAL NO.310I2005 (2) The facts, briefly stated, are as under: Deceased Phoolkunwar was wife of the appellant. The deceased, her husband Jeetan Ram (appellant herein), mother of Jeetan Ram —Tetri Bai (PW-2) and daughter of the deceased —Shanti Bai (PW-5), all were residing in a c‘ommon house in village Kotdeeh (Aamapara). On 02.08.2004, the daughter of the deceased had gone out for agricultural work. The deceased, her husband (appellant) and her mother-in—law - Tetri Bai (PW—2) were present in their house. The allegations are that the deceased and the appellant firstly took liquor and thereafter, the appellant made allegations against the deceased that she had illicit relations with one Tuila Ram and on this pretext, he assaulted the deceased by a wooden log, who received multiple injuries. Thereafter, the appellant went to Tegna @ Ramchandar (PW-3) and made extra judicial confession that he has assaulted the deceased. Tegna @ Ramchandar (PW-3) came to the house of the appellant and saw that the deceased was lying in injured condition. The deceased was alive at that time; however, she was not able to speak as she was in unconscious condition. Later on, the deceased succumbed to the injuries sustained by her. Nadhira Ram (PW-1) lodged Dehatinalishi (EXP/4). Dehati merg intimation (Ex.P/1‘) was also recorded. Later on, regular merg intimation (EXP/15) was recorded. Based on all these, the First Information Report (EXP/.18) was lodged under Section 302 IPC. The Investigating Officer reached to the place of occurrence, gave notice (Ex.P/1 2) to the Panchas and prepared inquest (Ex.P/6) on the dead body of the deceased. The dead body of the deceased was sent for postmortem to the Community Health Centre (C.H.C.), CRIMINAL APPEAL NO.310I2005 Rajpur vide requisition- EXP/14. The postmortem examination was conducted by Dr. Prakash Kumar Sinha’ (PW-6). He found following injuries on the dead body of the deceased : On internai examination, he found that there was sub-dural haemorrhage and blood clots were presents on entire portion of brain. The Autopsy Surgeon opined that the cause of death was cardio pulmonary arrest as a result of head injury and it was homicidal in nature. The postmortem report is Ex.P/8. ln further investigation, the appellant was taken into custody and his memorandum statement (EXP/2) under Section 27 of the Evidence Act was recorded and wooden log of 2 - 3 ft. was seized at his instance vide seizure memo -Ex.P/3. After completion of usual investigation, the charge sheet was tiled in the Court of Judicial Magistrate First (i) Abrasion 4 x 3 x 3 cm on the right cheek beiowthe eye; (ii) Abrasion 3 x 2 x 2 cm on the left cheek; (iii) Abrasion 3 x 1 x V2 cm on the right portion of skull; (iV) Haematoma 10 x 4x 4 cm just below the chest; (V) Haematoma 10 x 5 cm on the back; (vi) Abrasion 3 x 1 x1 cm on the buttock; (vii) Incised wound 3 x 1 x 1 cm on the lower portion of right forearm; (viii) Abrasion 3 x 1 x 1 cm on the palm; (iX) Haematoma 5 x 1 x 1 cm on the front portion of right thigh; CRIMINAL APPEAL NO.310I2005 Class, Ambikapur, who in turn committed the matter to the Session Court, Ambikapur, where the trial was conducted and the appellant was convicted and sentenced, as aforementioned. (3) Ms.Shipra Biswas, 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 crime in question. She argued that according to the prosecution, the appellant and the deceased both took liquor and thereafter, the appellant, on the pretext of alleged illicit relations of the deceased with Tuila Ram, assaulted her by a small wooden lOg, which was lying there and the deceased received the above injuries. She also argued that none of the injuries was grievous; there was no bony injury, as the deceased did not receive any fracture; however, the deceased ,died on account of cardio pulmonary failure after a long time in the evening. All these circumstances show that there was no preparation or premeditation on the part of the appellant to commit murder of the deceased, therefore, an offence under Section 302 IPC would not be made out and the appellant would be, liable for punishment under some lesser Section preferably Part-ll of Section 304 IPC. (4) On the other hand, Mr. Ashish Shukla, learned Government Advocate appearing on behalf of the State, CRIMINAL APPEAL NO.31OI2005 opposed these arguments and supported the judgment passed by the Session Court. (5) We have head learned counsel for the parties at Iength and have also perused the records of the Sessions Case. (6) According to the prosecution, Tetri Bai, mother of the appellant (PW—2), the appellant and the deceased were present in the house. Tetri Bai (PW-2) turned hostile and did not support the case of the prosecution. She only admitted that she saw the dead body of the deceased in the house, where the appellant and the deceased were residing together. Shanti Bai (PW-5) is the daughter of the deceased. She also turned hostile. She deposed that on the fateful day, she had gone out for agricultural work and when she returned in the evening, she saw her mother lying dead in her house. Tegma @ Ramchandar (PW—3) is the witness before whom the appellant made extra judicial confession. He deposed that on the fateful day, the appellant came to his house and made extra judicial confession saying that he has committed murder of his wife. On this statement, Tegna Ram went to the house of the appellant and saw that the deceased was lying in injured condition. She had received multiple injuries. She was in unconscious condition and was unable to talk. On the above evidence, it is apparent that the deceased was found dead in the house of the appellant, who, CRIMINAL APPEAL NO.310!2005 after beating the deceased, made extra judicial confession before Tegna Ram @ Ramchandar (PW-3). (7) The learned Session Judge relied on the above evidence and held that it was the appellant who assaulted the deceased with a wooden log and the deceased died as a result of the injuries sustained by her on account of the assault made by the appellant. Therefore, we do not find any infirmity in the finding recorded by the Session Court that the appellant assaulted the deceased, who sustained multiple injuries and succumbed to those injuries. (8) Now we shall examine the matter in light of the provisions of Section 302 vis—a-vis Section 304 IPC. (9) Section 304 IPC provides 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 knowledge but the important thing is that before holding‘the accused guilty under any part of Section 304,- it has CRIMINAL APPEAL NO.310I2005 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 inciude 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. 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) ln case on hand, the deceased was wife of the appellant. On the fateful day, they took liquor and thereafter the appellant assaulted the deceased on the pretext that she was having illicit relations with Tuila Ram. Though it is alleged that the assauit was made by a wooden log of 2 - 3ft, but all the injuries sustained by the deceased were superficial and most of them were superficial abrasions. The‘Autopsy Surgeon admitted in the cross-examination that he did not find any bony injury on the body‘of the deceased. The wooden log, which was allegedly CRIMINAL APPEAL NO.310I2005 used by the appeliantuwas of 2 - 3 ft. All the abpve circumstances would show that there was no preparation or premeditation on the part of the appetlant to commit murder of the deceased. it appears that after taking liquor, the husband and wife quarreiied and in the said quarrel, the appellant assaulted the deceased by a small wooden log which was lying there, who sustained the above injuries and ultimately, succumbed to those injuries after 2—3 hours. (11) We are‘of the view that in the above facts and circumstances of the case, it can be safely gathered that the appellant had no intention to commit murder of the deceased and the act of the appellant would not be punishable under Section 302 IPC and he would be liable for punishment under Part —ll of Section 304 IPC. (12) For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set-aside. instead thereof, the appellant is convicted under Section 304 Part-ll IPC. The appellant is in jail since 04.08.2004. He has already undergone for a period of more than 7 years in this matter; therefore, he is sentenced to the period already undergone‘by him. He be set at liberty ‘ shyna i i" l g forthwith, if not required in any other case. Sdl- ,‘T‘ ‘i ‘ Sdl- Sunil Kumar Sinha as Rs. SHA i Jaaige Judge