1 2025:CGHC:6668 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 25 of 2016 1 - Ghurwa Mochi S/o Late Lakhan Mochi Aged About 45 Years R/o Thanaud, Police Chowki - Anjora, Police Station Pulgaon, District Durg Chhattisgarh. ... Appellant Versus 1 - The State of Chhattisgarh Through The Incharge, Police Chowki Anjora, Police Station Pulgaon, District Durg Chhattisgarh. ... Respondent(s) For Appellant : Shri B.P. Singh, Advocate. For Respondent : Ms. Isha Jajodiya, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 05.02.2025 1. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 03.09.2015 passed by the Sessions Judge Durg in Sessions Case No.97 of 2014 whereby the appellant has been convicted for the offence under Section 304 Part-II IPC and sentenced to undergo RI for 7 years with fine of Rs.100/-, in default of payment of fine amount, additional SI for one month. 2. Brief facts of the case are that PW-1, Siya Bai, gave Dehati Merg Intimation Ex.P/1 on 24.02.2014 with the allegation that on 23.02.2014 at about 22:00 hours when the deceased Amar Singh was coming from Digitally signed by INDRAJEET SAHU Date: 2025.03.03 11:28:09 +0530 2 the house of Puniya Bai, on the way, on the issue of removing the garbage, the appellant along with other co-accused, who is juvenile in conflict with law, started scuffling with the deceased. She intervened in the scuffling, but at about 23:45 hours in the night the deceased Amar Singh died. Inquest, Ex.P/3 of the dead body of deceased was prepared in presence of witnesses and the dead body was sent for its postmortem to Govt. Hospital, Durg where PW-7, Dr. N.C. Roy conducted the postmortem and gave report Ex.P/16. While conducting postmortem, the doctor noticed hematoma inside the brain 6x3x2 cm in size and another sub-dural hematoma on the cerebral region 4x2x0.3 cm. Injuries were found to be antemortem in nature. The doctor opined that cause of death is hematoma in the brain. Unnumbered FIR, Ex.P/8 was registered against the appellant for the offence under Section 302/34 IPC and thereafter numbered FIR, Ex.P/7 was registered at Police Station Pulgaon. Short postmortem report Ex.P/9 was also obtained by the police from the concerned doctor in which he opined that cause of death is hematoma inside skull in the brain. Spot Map Ex.P/4 was prepared by the police whereas Ex.P/5 by the Patwari. The appellant was arrested on 25.02.2014. During investigation, wooden log was seized from the spot vide seizure memo Ex.P/6. 3. The statement of witnesses were recorded under Section 161 CrPC and after completion of usual investigation charge sheet was filed before the Judicial Magistrate First Class, Durg, for the offence under Section 302/34 IPC against the appellant and other co-accused who was juvenile in conflict with law. The case was committed to the court of Sessions Judge Durg from where the same has been transferred to 3 the trial court for its trial. The trial court framed charge for the offence under Section 302 read with Section 34 IPC. The appellant abjured his guilt and claimed trial. 4. To prove the guilt of accused, the prosecution has examined 9 witnesses. The statement of appellant under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the Trial Court has acquitted the appellant from the offence under Section 302/34 IPC, but has convicted him for the offence under Section 304 Part-II IPC and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict him for the alleged offence. There was no weapon used by the appellant. Neither there was any intention nor knowledge to commit any offence. Though the altercation took place between the appellant and the deceased, but it was in the heat of passion that too without taking any undue advantage or any cruel manner. Normal scuffling was going on between the two. No external injuries were seen by the doctor while conducting postmortem of the deadbody of the deceased and it was only hematoma which was found by the doctor inside his brain. There was no fracture of any bone of the deceased. The trial court has erred 4 in convicting the appellant for the offence under Section 304 Part-II IPC whereas the offence of the appellant, if any, does not travel beyond the scope of Section 323 IPC. The appellant has already remained in jail for about two years and as such he has already suffered the maximum sentence provided for the offence of Section 323 IPC and his conviction may be converted to one under Section 323 IPC. 7. On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and have submitted that there is ample evidence against the appellant to convict him for the alleged office, but for minor omissions or contradictions, the evidence of prosecution witnesses are fully reliable and conviction can be made on the basis of evidence came on record. The manner in which the appellant assaulted the deceased and the injuries received on his body clearly shows that though they were not intended, but certainly have knowledge that deceased may have died by the assaulted made by them. They threw the deceased on a wooden log, sat on the chest of the deceased and started assaulting him which definitely comes under the offence of culpable homicide not amounting to murder for which the trial court has rightly passed the judgment of conviction after appreciating the entire facts and circumstances of the case. Therefore, the appeal does not have any merit and the same deserves dismissal. 8. I have heard the counsel for the parties and perused the records of the case. 9. So far as cause of death of deceased is concerned, the witness to the inquest PW-1 Siya Bai and PW-2 Suraj Kumar have stated that inquest Ex.P/3 was prepared in their presence, but they could not notice any 5 external injuries on the body of deceased. In Dehati Merg intimation Ex.P/1 lodged by the Siya Bai, PW-1, she has stated that due to dispute of removing the wooden log from the access way, some scuffling took place between the appellant and the deceased and she intervened in the matter and have taken the deceased to his house by PW-2, Suraj. It is not stated by her also that the appellant have used any weapon of assault or brutally assaulted the deceased. Only scuffling was stated between them. 10. PW-7, Dr.N.C. Roy, who conducted the postmortem of the dead body of the deceased have stated in his evidence that on 24.02.2014 he conducted postmortem of the dead body of the deceased in which she has not found any external injuries on the body of the deceased. There was no swelling on the head, but there was hematoma inside the head. Vide postmortem report Ex.P/16 he opined that cause of death is hematoma in the brain in skull. No fracture was found on any part of his body. The injuries were said to be antemortem in nature. The doctor has found only hematoma on the skull of the deceased. The doctor has also admitted in his cross examination that if the deceased dashed with any hard and blunt object, such injuries could have been caused on his body. 11. PW-1, Siya Bai, the wife of deceased, have stated in her evidence that when her husband was returning back from the house of Puniya Bai, they removed the wooden log which was lying on the access way near the house of Ghurwa Mochi, at that time, the appellant and his son started altercation and scuffling. She came out from the house and saw that her husband was in between the wooden log and the appellant 6 was sitting on his chest and assaulting him. The son of appellant also assaulted her husband. She along with Suraj and Dukhit came there and intervened. Her husband was unconscious at that time. They have taken him to the house where he died in the night. In cross examination, she stated that in her police report she has stated about scuffling by the appellant with the deceased and have not disclosed about any assault made by wooden log. She further admits that when the appellant and his son were assaulting the deceased, she went there and intervened. She too have admitted that there was no external injuries on the body of her husband. 12. PW-2, Suraj Kumar, who is eyewitness to the incident, have also stated that when he heard the noise of quarrel, he went near the house of Ghurva and found the appellant and his son assaulting the deceased by hand and fist. They intervened and thereafter the deceased was taken to his house. He was in semiconscious condition and subsequently died in his house. In his cross-examination he stuck in saying that when he reached on the spot, the appellant was sitting on the chest of deceased and assaulting him. 13. PW-3, Annu Bai, the daughter of deceased, is another witness to the incident, who have stated about the incident that on the issue of removing wooden log from the access way the appellant assaulted the deceased. She too have not seen any external injuries on the body of the deceased and when they have taken him to his house, in the night he died. 14. All these witnesses have stated about assault made by the appellant by hand and fist on the issue of removing the wooden log from the 7 access way. From perusal of Dehati Merg Ex.P/1 lodged by eyewitness Siya Bai, PW-1, it has been mentioned in it that when the deceased was coming from the house of Puniya Bai, on the way, dispute arose on the issue of removing wooden log from the access way and some scuffling took place between the appellant and deceased and in the night the deceased died. No external injuries were found on the body of deceased. 15. In Dunga Ram -Vs- State of Raiasthan, 1996 Cr.LJ. 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. 16. In Thomas-Vs- State of Kerala. 1992 Cr.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 8 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." 17. In the instant case, on a trivial issue of removing wooden log from the excess way the dispute arose and a quarrel and grappling took place between the appellant and the deceased and in the said quarrel the gave hand and fist blow on the body of the deceased. Though the witnesses have stated that the appellant was sitting on the chest of deceased and was giving blow on his body, but no external or internal injuries were found on the body of deceased. However, hematoma was found on the skull of deceased leading to death of deceased. It is to be noted that the appellant and deceased both were unarmed since beginning and 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. 18. 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 9 homicide would not amount to murder, if the act done 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. 19. That apart, it is also to be noted that no external injuries have been found on the body of deceased or hit on the chest of the deceased as stated by eyewitness. The doctor who conducted the postmortem of deadbody have admitted in his cross examination that such hematoma found on the skull of the deceased could have been caused on account of dash 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. 20. For the forgoing reasons and in the above facts and circumstances of the case, the offence under Section 304 Part-II IPC would not be made out and the act of the appellant would also not be punishable for commission of an offence of culpable homicide not amounting to murder, but the act of the appellant would definitely fall under Section 323 IPC for voluntarily causing hurt to the deceased and the appellant is liable to be punished for the said offence. 21. Accordingly, the appeal is allowed in part. The conviction and sentence awarded to the appellant for the offence under Section 304 Part-II of IPC is set aside and instead thereof he is convicted for the offence under Section 323 IPC and sentenced to undergo RI for one year with fine of Rs.1000/-, in default of payment of fine amount, additional RI for one month. 10 22. The appellant has already remained in jail during trial from 25.02.2014 to 03.09.2015 and thereby he has already served the entire period of jail sentence as awarded by this court, therefore, he is not required to surrender before the trial court. He is presently reported to be on bail. His bail bond shall remain in operation for a further period of six months as provided under Section 481 of BNSS, 2023. 23. The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder