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2012 DIGILAW 174 (CHH)

BADKOO @ BHIKAM v. STATE OF C. G.

2012-07-23

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 11th of October, 2007 passed in Session Trial 203/2007 by the Second Additional Session Judge (FTC), Surajpur. 2. 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. 100/- with default sentence of R.I. for 5 days. 3. The facts, briefly stated, are as under :- On 10.04.2007, at about 8:30 a.m., Sohan (deceased) had gone to the forest for collecting Mahuwa fruits. The allegations are that the appellant came there and shouted upon him, saying that why he was collecting the fruits of his tree. The appellant started quarreling. During the quarrel, the appellant assaulted the deceased by Tangiya, which he was holding with him. The incident was witnessed by Baiga (P.W.1). Baiga (P.W.1) narrated the incident to the son of the deceased namely- Manglu, Manglu went to the police Station and lodged the First Information Report (Ex-P-6), firstly the offence was registered under Section 307 IPC. The deceased, who was alive at that time, was sent for his medical examination. He was examined by Dr. S.K. Gupta (P.W. 7). Dr. S.K. Gupta found one incised wound of 4 cm. X ½ cm. X skin deep on the left parietal region. There was also a contusion on the area of left parietal bone. It was of the size of 10 cm. X 9 cm. The deceased was referred to the District Hospital, Ambikapur. From the District Hospital, he was brought to his house. Thereafter, the deceased died on 11.04.2007 at about 3:15 p.m. The death was reported to the police and the offence was converted under Section 302 IPC. The case of the prosecution was based on eye-witness account of Baiga (P.W. 1). Baiga turned hostile before the Court. He did not depose that he had seen the appellant assaulting the deceased, however, he deposed that after the quarrel, he saw the appellant running away with Tangiya in his hands. He also saw the deceased in injured condition. The learned Sessions Judge mainly relied on the testimony of Baiga (P.W. 1) and Naan Bai (P.W.2), and convicted and sentenced the appellant as aforementioned. 4. Mr. Arvind Singh, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He also saw the deceased in injured condition. The learned Sessions Judge mainly relied on the testimony of Baiga (P.W. 1) and Naan Bai (P.W.2), and convicted and sentenced the appellant as aforementioned. 4. Mr. Arvind Singh, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in the incident. He only argued that on account of collecting Mahuwa fruits, a quarrel took place. In the said quarrel, the appellant assaulted the deceased by Tangiya. There was no preparation or premeditation; there was no intention of the appellant to commit murder of the deceased; the deceased did not sustain any fracture; he died on the next day because he was bought to the house. Had the deceased been given treatment in the hospital, he would have survived, 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-II of Section 304 IPC. 5. On the other hand, Mrs. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 7. We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. 8. According to the case of the prosecution and the evidence on record, the deceased has gone to the forest for collecting Mahuwa fruits. When he was collecting Mahuwa fruits, the appellant came there and asked the deceased as to why he is collecting the fruits of his tree. Infact, the appellant was claiming right over that tree, on which, the deceased was collecting Mahuwa fruits. This was the cause of quarrel between the appellant and the deceased. When the deceased did not stop to collect the fruits, a quarrel began. In the said quarrel, the appellant assaulted the deceased on his head. The deceased has received only I superficial incised wound at the parietal region and there was haematoma around that injury. The postmortem, report would show that the deceased did not sustain any bony injury. When the deceased did not stop to collect the fruits, a quarrel began. In the said quarrel, the appellant assaulted the deceased on his head. The deceased has received only I superficial incised wound at the parietal region and there was haematoma around that injury. The postmortem, report would show that the deceased did not sustain any bony injury. The death of the deceased was also not instantaneous as he died on the next day at about 3:15 p.m. It comes in the evidence that after showing him in District hospital, Ambikapur, he was brought to his house in Village-Chandan Nagar. The above facts and circumstances would show that there was no preparation or premeditation on the part of the appellant to commit murder of the deceased. Infact, a quarrel has preceded the main incident of assault. The assault was not very severe as it has caused a superficial incision over the right parietal region. Unfortunately on account of the above assault, blood clotted in about 10 cm. X 9 cm. area, on the right parietal region, which caused death of the deceased. We are of the view that in the above 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 part-II of Section 304 IPC. 9. Accordingly, the appeal is partly allowed. The conviction and sentences awarded to the appellant under Section 302 IPC are set-aside. Instead thereof the appellant is convicted under Section 304 Part-II IPC and sentenced to undergo R.I. for 7 years. The appellant is in jail since 12.04.2007. He shall be entitled to set-off the period already undergone. Appeal Partly Allowed.