Bharat alias Bhartha vs State of M.P. (Now Chhattisgarh)

Sunil Kumar Sinha, J.—Appellant-Bharat @ Bhartha stands convicted u/s 302, IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Ambikapur, District Surguja in Sessions Trial No. 164/1988 on 29th of January, 1992.

The brief facts are that on 1-4-87 at about 5.00 p.m. Deoveer (since deceased) had gone to purchase paddy-straw in the house of one Amira and had taken his radio with him. At about 7.00 p.m., he returned to his house and said to his daughter, Parwati that appellant Bharat has taken his radio. After some time, Bharat also reached to the house of Deoveer but he was not carrying the radio, on which, a fight begun between appellant-Bharat and deceased-Deoveer. Seeing all this, Parwati (P.W. 8) called brothers of Bharat. They came their and tried to pacify the quarrel. When they were taking Bharat to his house, appellant Bharat, all of a sudden, picked up one khair club, which was lying there, and gave a blow on the head of Deoveer. Deoveer received injury on the head, fell down on the ground and died there. A Dehati Nalishi (Exh. P-6) was given by Ram Naresh (P.W. 7), based on which, a First Information Report (Exh. P-5) was registered.

During the investigation, the Investigating Officer gave notice (Exh. P/8-A) to the Panchas and prepared inquest (Exh. P-8) on the body of the deceased. He seized club, radio, slippers of the deceased and some other articles along with blood stained and soil from the place of occurrence under Exh. P-10. Among the above seized articles, as per the Serologist report (Exh. P-22), human blood was found on stained earth, cloth piece and the shirt. The dead body was sent for post-mortem to Government Hospital, Wadafnagar vide Exh. P/14-A. The post-mortem examination was conducted by Dr. K.K. Sen (P.W. 11), who prepared his report (Exh. P-13).

According to the post-mortem report, there was a lacerated wound over right frontal region extending upto voult, size 5 cm x 1/2 cm x bone deep and clotted blood was present inside the wound. On dissection, he found a depressed fracture of right parietal bone. He was noticed subdural and subarachoid haemorrhage beneath the site of fracture. The Autopsy Surgeon opined that the cause of death was coma due to injury over skull and brain and it was homicidal in nature.

After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the matter to the Court of Sessions Judge, Ambikapur, where the trial was conducted and the appellant was convicted and sentenced as aforementioned.

The conviction of the appellant is based upon the sole testimony of the daughter of the deceased namely- Parwati (P.W. 8) as the other eye-witnesses, cited by the prosecution, were either not examined or they did not support the case of prosecution.

Mr. J.S. Baraik, learned Counsel for the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr. K.K. Sen (P.W. 11) as also in the post-mortem report that the deceased has sustained a depressed fracture of right parietal bone and the death was caused due to coma as a result of injury sustained over skull and it was homicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature.

Mr. Baraik then, argued that it was a case of single blow, which the appellant gave to the deceased in heat of passion, in a sudden light without pre-meditation and preparation, therefore, the act of the appellant would fall within the Exception of Section 300, IPC and it would not travel beyond Section 304 Part II, IPC.

The above arguments were opposed by learned Counsel for the State.

We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case.

Parwati (P.W. 8), is the daughter of the deceased. She deposed that "the quarrel begun in their house when her father Deoveer demanded his radio from appellant-Bharat. On such demand of her father, appellant Bharat said that he has left the radio in his house and even on repeated requests by her father when Bharat did not give his radio, the quarrel begun. When she saw all this, she went to the house of Bharat and called his brother Munna. Shambhu and Pretam also came there. Munna and Shambhu etc. were trying to take the appellant to his house but the appellant ran at once, picked up a piece of wood and gave a blow on the head of her father due to which he fell down". On the evidence of P.W. 8, it is clear that on account of retaining of the radio of the deceased by the appellant, a fight begun between them and during the fight when the appellant was being taken by his brothers, all of a sudden, he picked up a piece of wood, which was lying in the house of the deceased itself, and gave single blow to the deceased, which proved fatal. Certainly, the appellant had gone to the house of the deceased unarmed and the facts and circumstances of the case would show that he was unprepared and in a sudden fight in the heat of passion without pre-meditation, he gave single blow to the deceased.

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 pre-meditation. 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. The intention is the purposeful doing of a thing to achieve 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.

If we apply the above principles in the facts and circumstances of the case on hand, certainly the case of the appellant would fall under Exception 4 of Section 300, IPC and the appellant would be liable for punishment u/s 304 Part II, IPC because the act was committed without pre-meditation 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.

Therefore, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302, IPC are set aside. Instead, the appellant is convicted u/s 304 Part II, IPC. The appellant is on bail since 12-6-96 but he has already undergone the jail sentence of about 5 years & 3 months, therefore, he is sentenced to the period already undergone by him.

His bail bonds are discharged.