Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 188 (CHH)

Ganeshram v. State of C. G.

2011-05-11

PRITINKER DIWAKER, SUNIL KUMAR SINHA

body2011
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 27th of April, 2007 passed in Sessions Trial No. 138/2006 by the Additional Sessions Judge, Janjgir, District Janjgir-Champa, C.G. By the impugned judgment, the Appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentence of R.I. for 3 months. 2. The facts, briefly stated, are as under: Deceased- Khikhram was the elder brother of the Appellant. On 25.1.2006 at about 11-11.30 a.m. Khikhram (deceased), Shanti Bai (PW-4 - wife of the deceased) and Ramfal (PW-1 - son of the deceased) were loading paddy on a tractor. The allegations are that the Appellant came there, abused the deceased, claimed partition in the paddy, and said that he will not allow to take entire paddy. The deceased obstructed to it. The Appellant threatened the deceased and thereafter assaulted him by a tangia on his head. The deceased himself went to the police station and lodged the First Information Report (Ex.-P/19). The case was registered Under Section s 294, 506 Part-II & 323 IPC. The deceased was sent to the hospital, where he was examined by the Doctor who found lacerated wound of 3 cm x 4 cm on the left side of the parietal bone. There was another laceration below the left elbow joint and there was swelling on the left thumb. The injury report is Ex.-P/13. The Doctor advised for X-ray examination. After the preliminary treatment, he came back to his house. He was getting treatment in his house. On 30.1.2006 at about 4.30 p.m. when he returned to his house on a bicycle, he felt severe pain in the head. A vehicle was arranged and he was taken to the hospital, where he was declared dead. Information was sent to the police. The Investigation Officer came to the hospital, gave notice (Ex.-P/7) to the Panchas and prepared inquest (Ex.-P/8) on the dead body of the deceased. The dead body was sent for post-mortem to Government Hospital (Dispensary), Sheorinarayan. The post-mortem report is Ex.-P/ll. The Autopsy Surgeon opined that the cause of death was head injury and extradural haematoma on the head and it was homicidal in nature. The dead body was sent for post-mortem to Government Hospital (Dispensary), Sheorinarayan. The post-mortem report is Ex.-P/ll. The Autopsy Surgeon opined that the cause of death was head injury and extradural haematoma on the head and it was homicidal in nature. The learned Sessions Judge relied on the testimonies of Ramfal (PW-1), Shanti Bai (PW-4) and Samaylal (PW-8) who deposed that the deceased was assaulted by the Appellant by a tangia. Therefore, the Appellant was convicted and sentenced in the above manner. 3. Mr. Awadh Tripathi, learned Counsel appearing on behalf of the Appellant, has not disputed the homicidal death of the deceased. He argued that on account of taking of paddy a sudden quarrel took place between 2 brothers; in the said quarrel, at spur of moment, in heat of passion, the Appellant gave single blow to the deceased; the deceased died after 4 days; he was not admitted in the hospital; he was taking his own treatment and was moving throughout on bicycle; therefore, in the facts and circumstances of the case, 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-II of Section 304 IPC. 4. On the other hand, Mr. D.K. Gwalre, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned Counsel for the parties at length and have also perused the records of the sessions case. 6. Admittedly, the deceased was real brother of the Appellant. According to the evidence of Ramfal (PW-1 - son of the deceased), the Appellant came to the place where the deceased and his family members were loading paddy on a tractor, and asked for partition of the paddy crop. On this, the deceased replied that the Appellant had already taken partition and this crop was exclusively sown by him, therefore, he will not give any partition to the Appellant. It is on this event, a quarrel begun between the 2 brothers and the Appellant assaulted the deceased by a tangia. We note that the deceased himself lodged the F.I.R. (Ex.-P/19) and firstly offence Under Section s 294, 506 Part-Il and 323 IPC was registered. It further comes in the evidence of Ramfal (PW-1) that the deceased was never admitted in the hospital after his preliminary treatment. We note that the deceased himself lodged the F.I.R. (Ex.-P/19) and firstly offence Under Section s 294, 506 Part-Il and 323 IPC was registered. It further comes in the evidence of Ramfal (PW-1) that the deceased was never admitted in the hospital after his preliminary treatment. He returned back and for about last 4-5 days, used to travel on the bicycle and perform his all work. It is on 30.1.2006 when the deceased returned from some place on bicycle, he felt severe pain in the head and thereafter he died. It is a case in which the Appellant did not use the sharp portion of the tangia. Had there been an intention of the Appellant to commit murder of the deceased, the Appellant would have used its sharp portion. The Appellant also did not assault the deceased at once as firstly he demanded partition in the paddy crop and when the same was denied, he abused the deceased and after some altercation between them, the Appellant gave a single blow to the deceased from the blunt side of the tangia. The Appellant did not repeat the blow. The blow caused the above injury. The deceased died after 4 days and in between this period he was doing his usual work by using a bicycle in normal manner. 7. 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 knowledge but the important 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. 8. If we apply the above principles in the facts and circumstances of the case on hand, certainty the case of the Appellant would fall under Exception 4 of Section 300 IPC and the Appellant would be liable for punishment under Section 304 Part-II IPC because the act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without any intention and the Appellant had also not taken any undue advantage or acted in a cruel or unusual manner. But the act of the Appellant attributes his knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. 9. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the Appellant under Section 302 IPC are set-aside. Instead, the Appellant is convicted under Section 304 Part-II IPC and sentenced to the period already undergone which comes about more than 5 years, 3 months (without remission) in this matter. The Appellant is in jail. He be released forthwith, if not required in any other case.