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2012 DIGILAW 281 (CHH)

TELAMBOJJA v. STATE OF M. P.

2012-10-19

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 1st of February, 1997 passed in Sessions Trial No. 241/90 by the First Additional Sessions Judge, Bastar at Jagdalpur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- Hemla Aaytu (PW-3) and Hemla Suklu are real brothers. Deceased Hemla Bodda was their father. Marriage of Hemla Suklu was settled with Budri. Engagement was also done. Hemla Suklu brought the girl from her parent's place without performing marriage. On 27.7.88, in the afternoon, brother of Budri, Telam Bojja (accused), came to the house of the deceased with 5-6 persons of his village. They were searching Budri. The allegations are that Telam Bojja showed knife and danda to Hemla Bagge (PW-4 wife of the deceased). They assaulted Hemla Aaytu (PW-3) by a danda. Hemla Aaytu then ran away from that place. The further allegations are that thereafter the accused assaulted the deceased by using an arrow which was kept in the house of the deceased. The deceased died on account of above assault. According to the Autopsy Surgeon, Dr. A.R. Gota (PW -2), the deceased had sustained single cut injury of 1¼ x ¼ inch on the left portion of his chest. In fact, arrow had punctured the left lung and upper portion of heart. The Autopsy Surgeon opined that the cause of death was haemorrhage on account of the above injuries and the death was homicidal in nature. The postmortem report is Ex.-P/3. The incident was witnessed by Hemla Aaytu (PW-3) and Hemla Bagge (PW-4). The First Information Report (F.I.R. Ex.-P/1) was lodged by Hemla Aaytu (PW-3). The learned Sessions Judge relied on the testimonies of the above eye-witnesses and convicted & sentenced the appellant as above. 3. Mrs. Savita Tiwari, 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. She has argued that in a sudden quarrel the above incident took place, therefore, in the facts and circumstances of the case, an offence u/s 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. She has argued that in a sudden quarrel the above incident took place, therefore, in the facts and circumstances of the case, an offence u/s 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. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard learned counsel for the parties at length, we have perused the records of the sessions case. 6. We have examined the evidence of Hemla Aaytu (PW-3) and Hemla Bagge (PW-4). It was established on their evidence that the appellant assaulted the deceased by an arrow. It was further established by the evidence of Dr. A.R. Gota (PW-2) that the above organs of the deceased were damaged on account of assault given by the appellant by an arrow. Therefore, it was established that the appellant had assaulted the deceased by an arrow due to which the deceased sustained above injuries and succumbed to those injuries. 7. Now we shall consider the argument advanced by Mrs. Tiwari. 8. In Virsa Singh Vs. State of Punjab AIR 1958 SC 465 , it was held that if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause thirdly of Section 300 IPC. 9. The question thus arises as to whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death in the instant case, was an injury in fact intended by the appellant or not? 10. In the instant case, the sister of the appellant was brought by the son of the deceased to his house, even without their marriage. The appellant and the villagers of his village were searching her. When they came to the house of the deceased in search of the sister of the appellant, a quarrel took place there and in a sudden quarrel, the appellant took an arrow, which was kept there in the mayar (roof) of the house of the deceased and gave solitary blow by arrow to the chest of the deceased. When they came to the house of the deceased in search of the sister of the appellant, a quarrel took place there and in a sudden quarrel, the appellant took an arrow, which was kept there in the mayar (roof) of the house of the deceased and gave solitary blow by arrow to the chest of the deceased. The arrow pierced into thoracic cavity and it unfortunately damaged the left lung and upper portion of heart. Two inferences can easily be drawn from the above act of the appellant. First, that there was no preparation or premeditation on the part of the appellant to commit murder of the deceased as the appellant came to the house of the deceased unarmed; in quarrel, he picked up the arrow from the house of the deceased and gave solitary blow to him; the appellant did not repeat the blow; thus there was no intention of the appellant to commit murder of the deceased; and Second, that the appellant may not be having knowledge that the above solitary injury would puncture the lung and it would also damage the heart, as the appellant being rustic villager may not having knowledge about the exact location of the vital organs like lungs and heart in the human body. The above internal injuries, therefore, must be ascribed to a non-intentional. We are supported in our views by the judgments of Harjinder Singh Vs. Delhi Administration AIR 1968 SC 867 , Laxman Kalu Nikalje Vs. State of Maharashtra AIR 1968 SC 1390 and Gokul Parashram Patil Vs. State of Maharashtra AIR 1981 SC 1441 . 11. We are of the view that in the above facts and circumstances of the case, the solitary blow given by the appellant to the deceased was not with intention to cause his death; the intention of the appellant to cause those particular injuries to the heal1 and lung by the above solitary blow can also not be gathered, and for these reasons, the appellant would not be liable for punishment U/S 302 IPC. But the knowledge of the appellant that his above act was likely to cause death of the deceased or to cause such bodily injury as is likely to cause his death can well be gathered by his such act, and for that he would be liable for punishment under Part-II of Section 304 IPC. 12. But the knowledge of the appellant that his above act was likely to cause death of the deceased or to cause such bodily injury as is likely to cause his death can well be gathered by his such act, and for that he would be liable for punishment under Part-II of Section 304 IPC. 12. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant U/S 302 IPC are set-aside. Instead thereof, the appellant is convicted U/S 304 Part-II IPC and sentenced to the period already undergone which comes about 9 years in this matter. Appeal Partly Allowed.