Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 204 (CHH)

MITHUMAL v. STATE OF M. P.

2013-07-08

Rangnath Chandrakar, Sunil Kumar Sinha

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 7th of February, 1998 passed in Sessions Trial No. 466/91 by the Special Judge (Atrocity), Bilaspur. 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:- 2.1 Deceased-Hiranand was a wholesaler of vegetables in Budhwari market, Bilaspur. The appellant was a supplier of vegetables, who used to bring lots of vegetables from other places and supply them to the local wholesalers of Budhwari market, including the deceased. On 5.1.1991, the appellant had brought a trip of green-peas from Jabalpur on a Matador. The loaded Matador was standing in a nearby area of the Market. Devicharan was an other wholesaler of the vegetables. Gendram (PW-4) was also a wholesaler in the said Market. 2.2 The case of the prosecution is that on 5.1.1991 at about 8.30 a.m. a quarrel took place between the appellant and the deceased on account of supply of the green-peas which the appellant had brought from Jabalpur. The appellant wanted to supply those peas to Devicharan and the deceased wanted that the said peas should be supplied to him. The allegations are that in the said quarrel firstly a grappling took place between the appellant and the deceased and the appellant, thereafter, gave a fist blow on the chest of the deceased due to which he fell down and became unconscious. He was taken to the hospital, where he was declared dead. A report was lodged in the police station by Jumdamal (PW-1) which was reduced into writing as Roznamchasana No. 252/91 (Ex.-P/6), based on which a First Information Report (F.I.R. - Ex.-P/7) was recorded. The Investigating Officer gave notices (Ex.-P/9 & P/10) to the Panchas and prepared inquest (Ex.-P/11) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. Vinay Kumar Gupta (PW-10). He noticed following injury on the dead body of the deceased:- (i) There was a superficial abrasion of 2 x 2 cm on the left portion of chest of the deceased. On internal examination, he noticed that 50-60 C.C. blood was there in the lower portion of heart membrane. The postmortem examination was conducted by Dr. Vinay Kumar Gupta (PW-10). He noticed following injury on the dead body of the deceased:- (i) There was a superficial abrasion of 2 x 2 cm on the left portion of chest of the deceased. On internal examination, he noticed that 50-60 C.C. blood was there in the lower portion of heart membrane. Left ventricle was swollen and two wounds of 1 x 1/2 x 1/2 and 1/2 x 1/2 x 1/2 cm were present over it. The Autopsy Surgeon could not give any opinion regarding cause of death and he recommended for Pathological Examination of heart by the Pathology Department of Medical College, Raipur for any heart disease. Though the heart and postmortem report were sent for Pathological Examination, but no report could be filed. The postmortem report is Ex.-P/5. 2.3 There were six eye-witnesses to the incident namely-Jumdamal (PW-1), Bhagwandas (PW-2), Durgacharan Mourya (PW-3), Gendram (PW-4), Sattu @ Santram Das (PW-7) and Ganeshprasad (PW-9). Out of them, Durgacharan Mourya (PW3) and Gendram (PW-4) turned hostile. The learned Special Judge relied on the testimonies of the remaining eye-witnesses and held that it was proved beyond all reasonable doubt that the appellant had assaulted the deceased by fist in the above manner which resulted into death, therefore, he was liable for punishment u/S 302 IPC. 3. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, has argued that in the facts and circumstances of the case, when the appellant gave single blow by fist to the chest of the deceased, an offence u/S 302 IPC would not be made out and in absence of any evidence of intention or knowledge, the appellant-would be liable for punishment u/S 323 IPC. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Special Judge. Alternatively, he also argued that if it is held that the appellant was not liable for punishment u/S 302 IPC, his act would be punishable under Part-II of Section 304 IPC. 5. We have heard counsel for the parties. 6. We have gone through the evidence of eye-witnesses. 7. Jumdamal (PW-1) is real brother of the deceased. He has deposed that on the date of incident, the appellant had brought green-peas on a Matador from Jabalpur. 5. We have heard counsel for the parties. 6. We have gone through the evidence of eye-witnesses. 7. Jumdamal (PW-1) is real brother of the deceased. He has deposed that on the date of incident, the appellant had brought green-peas on a Matador from Jabalpur. He was supplying those peas to Devicharan. On this, his brother (deceased) had sent the Hammals to the Matador directing them to unload the green-peas of the advance amount which he had given to the appellant. The appellant denied to supply the peas to the deceased. Thereafter the deceased also went towards the Matador. He met the appellant on the way and an altercation took place between the appellant and the deceased and thereafter the appellant gave a fist blow on the chest of the deceased and the deceased fell down. Evidence of grappling between the appellant and the deceased also comes from the mouth of other eye-witnesses. Therefore, it comes in the evidence that on account of the above reason firstly a quarrel took place and in the quarrel after grappling between the appellant and the deceased, the appellant gave single blow by fist on the chest of the deceased. 8. Mr. Surendra Singh has mainly contended that there was neither intention nor knowledge on the part of the appellant that by his single blow by fist the deceased may died, therefore, the act of the appellant was voluntarily causing hurt which would be punishable u/S 323 IPC. Thus, the main emphasis in the argument was that it was not a case of culpable homicide. 9. Section 299 IPC defines culpable homicide. It says that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The culpable homicide would be murder, if the act by which the death is caused is done with the intention of causing death or when Clauses Secondly, Thirdly or Forthly of Section 300 are attracted. However, the culpable homicide would not amount to murder, if the act done false in either of Exception mentioned in Section 300. For which the accused would be liable for punishment u/S 304 IPC. However, the culpable homicide would not amount to murder, if the act done false in either of Exception mentioned in Section 300. For which the accused would be liable for punishment u/S 304 IPC. Therefore, 'intention' or 'knowledge' are the two important elements to bring an act within the ambit of any part of Section 304 IPC. 10. Intention denotes that a particular consequence should ensure, however, knowledge of consequence which may result in doing of an act is quite different than intention. The intention is a factor which attracts first part of Section 304 IPC and knowledge attracts its second part. The intention is a purposeful doing of a thing to ensure 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. 11. In Dunga Ram Vs. State of Rajasthan 1996 Cri.L.J. 3672, the accused inflicted a single lathi blow on the head of the deceased resulting into simple injury which was in the nature of lacerated wound on the left side of parietal region with swelling extending upto left eye lid (left), it did not result in fracture. The medico-legal report described this injury as simple, caused by a blunt weapon and the cause of death was an internal injury in the nature of intracranial haemorrhage caused by the single lathi blow inflicted by the accused. It was held that a lacerated wound on the head cannot be said to be dangerous to life or of serious nature; and the conviction of the accused was modified from u/S 302 to 323 IPC. 12. In Thomas Vs. State of Kerala 1992 Cri.L.J. 581 (Krl.) (DB), it was held that "In order to constitute an offence of culpable homicide, a person has to cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. Culpable homicide is the genus of which murder is the species. The word 'likely' means probably and it is distinguished from mere "possibly". When chances of happening are even or greater than its not happening, it can be said that the thing will "probably happen". Culpable homicide is the genus of which murder is the species. The word 'likely' means probably and it is distinguished from mere "possibly". When chances of happening are even or greater than its not happening, it can be said that the thing will "probably happen". In reaching the conclusion, the Court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death." 13. In Abdul Waheed Khan alias Waheed and Others Vs. State of A.P. (2002) 7 SCC 175 , the Supreme Court, vide Para-11, observed that "In the scheme of IPC culpable homicide is the genus and "murder", its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304". 14. In the instant case, on a trivial issue of not supplying the peas to the deceased and resisting the Hammals of the deceased from unloading the peas from Matador of the appellant, a quarrel and grappling took place between the appellant and the deceased and in the said quarrel, the appellant gave single fist blow to the chest of the deceased. We note that the appellant and the deceased both were unarmed since beginning and incidentally, no arm was used by the appellant for assaulting the deceased. Thus, there does not appear to be either an element of 'intention' or 'knowledge' attributable to the appellant which may bring his act punishable even for commission of an offence of culpable homicide not amounting to murder. 15. Thus, there does not appear to be either an element of 'intention' or 'knowledge' attributable to the appellant which may bring his act punishable even for commission of an offence of culpable homicide not amounting to murder. 15. That apart, we also note that the single superficial injury of about 2 cm on the chest was an abrasion which we also doubt that it could have been caused by a fist blow, which, according to the eye-witnesses, hit on the chest of the deceased over the cloths. The Autopsy Surgeon has admitted in the cross-examination that such injury could have been caused on account of fall on a hard surface. It is for all these reasons, he did not give any opinion regarding mode• and cause of death in his postmortem report. 16. We are of the view that in the above facts and circumstances of the case, an offence u/S 302 IPC would not be made out and the act of the appellant would also not be punishable for commission an offence of a culpable homicide not amounting to murder, and the appellant would be liable for punishment u/S 323 IPC for voluntarily causing hurt to the deceased. 17. 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 323 IPC and sentence to the period already undergone which comes about 5 months. It is stated that the appellant is on bail. His bail bond shall continue for a period of 6 months in view of Section 437-A Cr.P.C. HEADLINE Offence u/s 302 IPC, on facts converted to S. 323 IPC - Relevant Principles discussed. Appeal Partly Allowed.