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2004 DIGILAW 132 (CHH)

SHIV KUMAR CHERWA v. STATE OF C. G.

2004-07-08

A.S.V.MOORTHY, L.C.BHADOO

body2004
JUDGMENT 1. The accused/appellant stands convicted in Sessions Trial No. 43/ 2002 by the 3rd Additional Sessions Judge (Fast track Court), Surajpur, District: Surguja for the commission of offence under Section 302 of the I.P.C. and has been sentenced to undergo imprisonment for life and further to pay a fine of Rs. 200/-, in default of payment of fine to further undergo imprisonment for three months. 2. The case of the prosecution in that on 02-10-2001 at about 9 p.m. at Village : Amandon, on account of the death of Dhansai, villagers were,. invited on post funeral ceremony to take their meal at the residence of Dhansai. Accused/appellant Shiv Kumar and deceased Shiv Ratan had also went to take dinner at the residence of Dhansai. On account of previous enmity, Shiv Ratan (since deceased) asked accused Shiv Kumar that as he has been ostracized, therefore, why he has come for taking dinner. On this some hot words were exchanged between the two and the accused left the scene. Shiv Ratan went to tube well which was near the house of Dhansai. After some time, accused Shiv Kumar came and started abusing Shiv Ratan (since deceased) in the name of mother and sister and after threatening him with dire consequences, assaulted him with a club of Sarai tree on his back and head on account of which Shiv Ratan fell down on earth and became unconscious. After hearing the hue and cry, Manwa Devi came on the scene, brought water from the well and poured on the head of the deceased. By that time, villagers collected there and Shiv Ratan was taken to Pratappur hospital. The matter was reported by one Salauddin to the Police Station: Pratappur, where the offence under Sections 294, 506, 323 and 307 of the I.P.C. was registered. First aid treatment was given by the Primary Health Centre, Pratappur, and thereafter, Shiv Ratan was referred to the District Hospital, Ambikapur. But he succumbed to the injuries on way to Ambikapur hospital. Merg intimation was given to the Police Station and the Police converted the offence under Section 302 of the I.P.C. 3. After investigation, charge sheet was filed against the accused/ appellant in the Court of Judicial Magistrate, First Class, Surajpur, who in turn committed the case to the Sessions Judge, Ambikapur, from where the Additional Sessions Judge, Surajpur, received the case on transfer. After investigation, charge sheet was filed against the accused/ appellant in the Court of Judicial Magistrate, First Class, Surajpur, who in turn committed the case to the Sessions Judge, Ambikapur, from where the Additional Sessions Judge, Surajpur, received the case on transfer. After framing charge, recording the evidence and hearing the arguments, learned Additional Sessions Judge convicted and sentenced the accused/appellant in the aforesaid marmer. 4. We have heard Shri Rajeev Shrivastava, counsel for the appellant and Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. 5. As far as the question of nature of death of Shiv Ratan being concerned as homicidal, learned counsel for the appellant has not disputed this fact. Even otherwise, PW-11 Dr. Sanjay Tripathi has stated that he conducted the post mortem on the body of Shiv Ratan and found that there was a stitched wound on the left parietal region of the size of 2 x 1 x 1 cms. deep up to the bone, both the parietal bones were found fractured and clotted blood was present on the brain and membrane and the cause of the death was shock as a result of head injury. His report is Ex. P-8. In view of the above evidence, the death of Shiv Ratan was homicidal in nature. 6. As far as the involvement of the accused/appellant in committing the murder of Shiv Ratan is concerned, PW-1 Rudra Prasad, who was the eyewitness has categorically stated that the accused appellant assaulted the deceased with a club of Sarai tree on his head. Learned counsel for the accused could not elicit anything in the cross-examination, which makes the evidence of this witness unreliable. The trial Court has placed reliance on the evidence of this witness. Therefore, the involvement of the accused in assaulting the deceased is also proved. The learned trial Court has rightly held the accused appellant guilty for assaulting deceased Shiv Ratan. 7. The trial Court has placed reliance on the evidence of this witness. Therefore, the involvement of the accused in assaulting the deceased is also proved. The learned trial Court has rightly held the accused appellant guilty for assaulting deceased Shiv Ratan. 7. Learned counsel for the appellant argued that as per the evidence available on record, offence under Section 302 of the I.P.C was not made out against the accused appellant for the reason that when the accused/appellant went to the house of Dhansai for taking dinner, Shiv Ratan (since deceased) started quarrelling with him saying that since he has been ostracized, therefore, why he has come to take dinner at the house of Dhansai and on that some hot words were exchanged between the two and thereafter, accused/appellant Shiv Kumar left the place, but after some time he came back and after abusing Shiv Ratan assaulted him with a club of Sarai tree on his head as a result of which Shiv Ratan received fatal injury as a result of which he died. Therefore, only offence under Section 304 Part-II of the I.P.C. was made out. 8. In the connection, we are of the view that the following judgment of the Hon'ble Apex Court are relevant on the point. 9. The prosecution case in the matter of Mahesh Vs. State of Madhya Pradesh, was that the deceased objected to the appellant not let his cattle damage the crop. The appellant, however, did not, pay any heed to the request of the deceased and insisted that he would graze the cattle in that field and altercation ensued between the deceased and the accused. In that process the appellant dealt a pharsa blow on the head of deceased Krishna Kumar as a result of which he died on the spot. On these facts the Hon'ble Apex Court held that in these circumstances, the accused during a sudden quarrel without any premeditation assaulted the deceased, therefore, the offence will fall within Exception-4 to Section 300 of the I.P.C. Therefore, the accused was held guilty under Section 304 Part-I of the I.P.C. 10. Similarly, the prosecution case in the matter of State of Rajasthan Vs. Satyanarayan2, was that accused Satyanarayan was neighbourer of Bhima. Some quarrel took place between Bhoridevi, wife of Bhima, and the accused, and there was exchange of words between her and accused Satynarayan. Similarly, the prosecution case in the matter of State of Rajasthan Vs. Satyanarayan2, was that accused Satyanarayan was neighbourer of Bhima. Some quarrel took place between Bhoridevi, wife of Bhima, and the accused, and there was exchange of words between her and accused Satynarayan. In that process the accused assaulted Bhoridevi with an iron pipe. He also injured Ram Gopal and then went back to his house. By that time, Kesar Lal (deceased), brother of Bhima, went near the house of accused and started questioning the accused as to why he was quarrelling like that in the morning. Thereupon the accused came out of his house with a knife and inflicted a blow on the abdomen of Kesar Lal as a result of which his intestines came out and he died. The accused ran way from that place. On these facts, the Hon'ble Apex Court held that "the respondent had not aimed the blow on any vital part of Ram Gopal or Kesar Lal The blow was aimed at Ram Gopal but as he moved aside, it landed on the stomach of Kesar Lal. Therefore, the Court held that the appellant should have been convicted under Section 304 Part-I of the I.P.C. and not under Section 302. 11. Now, in order to appreciate the argument advanced by the counsel for the appellant in the light of the above two judgments of the, Hon 'ble Apex Court, it we look into the prosecution evidence, it is true that some hot words were exchanged between the deceased and the accused at the residence of Dhansai as the deceased asked the accused that as he has been ostracized, therefore, why he has come to take dinner in the house of Dhansai which infuriated the accused and he left the scene, then he again came and all of a sudden after abusing the deceased assaulted him with a club of Sarai tree. As per the evidence of PW -1 Rudra Prasad the accused assaulted the deceased once on his head as a result of which he fell down and on the way he died when he was being taken to the hospital. If we look into the above evidence, the accused appellant assaulted the deceased all of a sudden with a club of Sarai tree without any premeditation or pre-concerted plan to commit the murder of Shiv Ratan. As per the evidence of Dr. If we look into the above evidence, the accused appellant assaulted the deceased all of a sudden with a club of Sarai tree without any premeditation or pre-concerted plan to commit the murder of Shiv Ratan. As per the evidence of Dr. Sanjay Tripathi (PW -11) there was only one injury on the head and the parietal bone was found Fractured. 12. Therefore, in the circumstances, it cannot be inferred from the above evidence that the accused appellant assaulted the deceased with the intention to cause his death of with the intention to cause such fatal injury, which could have, in all probability, caused the death of the deceased in the ordinary course of nature. However, it can safely be inferred from the facts and circumstances of the case that at the time of assaulting the deceased on his head with a club of Sarai tree, accused/appellant Shiv Kumar had definite knowledge that by assaulting the deceased on his head, he may cause his death. Therefore, we are of the opinion that the offence against the accused appellant does not travel beyond Section 304 Part-I of the I.P.C. In the circumstances, we are of the opinion that, in the facts and circumstances of the case, 7 years' imprisonment could meet the ends of justice. 14. In the result, the appeal is partly allowed. The conviction and sentence under Section 302 of the I.P.C. are set-aside and instead thereof the conviction is converted into one under Section 304 Part-I of the I.P.C. For the said offence, the accused/appellant is sentenced to undergo rigorous imprisonment for 7 years. Appeal Partly Allowed.