Punem Laxman v. The State of Madhya Pradesh

D.B.: HON'BLESHRI SUNILKUMAR SINHA. J& HON'BLE SHRI RANGNATH CHANDRAKAR. J. Criminal Appeal No. 2547/1998 APPELLANT Punem Laxman Versus RESPONDENT The State of Madhya Pradesh (Now Chhattisgarh) And Criminal Appeal No. 2548/1998 APPELLANT Punem Hunga Versus RESPONDENT The State of Madhya Pradesh (Now Chhattisgarh) CRIMINAL APPEALS UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Ms. Savita Tiwari, Advocate for the appellants. Mr. S.R.J. Jaiswal, Panel Lawyer for the State. JUDGMENT (18.11.2013) Following judgment of the Court was dictated on Board by SUNIL KUMAR SINHA, J.

1. These appeats are directed against the judgment dated 14th of July, 1998 passed in Sessions Trial No. 158/1997 by the ^.^: ^ ^!^^ ^\ ^%s^^ $'• '^ CRA Nos. 2547/98 & 2548/98 Special Judge, Bastar at Jagdalpur. By the impugned judgment, appellant- Punem Laxman (A-1) has been convicted under sections 302, 324 and 324 IPC and sentenced to undergo imprisonment for life and R.l. for 6-6 months with a direction to run the sentences concurrently; and appellant —Punem Hunga (A-2) has been convicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life.

2. The facts, briefly stated, are asunder:- (PW-1), is son of appellant-

2.1. Appellant- Punem Laxman (A-1) Punem Hunga (A-2). The case of the prosecution is that on 4.9.1996, at about 7-8 pm, Burka Buraiya (deceased), Burka Samaiya Burka Gajendra (PW-2) and Punem Kanhaiya (PW-3) were sitting in the house of Bheema. They had gonein the Kriyakarma (ceremonies after the death) of daughter of Bheema. Appellant Punem Hunga (A-2) also came there. Burka Buraiya (deceased) asked Punem Hunga (A-2) as to why he was not attending the meetings of the community; he should come in the meetings. Appellant Punem Hunga (A-2) became enraged and said to Burka Buraiya (deceased) that they treat him as a person of low category, therefore, he did not attend the meetings.

2.2. The allegations are that thereafter, Punem Hunga (A-2) went to his house and came with his son, Punem Laxman (A- 1), who was holding a spear. Punem Laxman (A-1) assaulted the deceased by spear, who received a penetrating wound on the second left inter-costal space. The assault was given on the back side of anterior axillary aspect. The spear has penetrated deep into thorax and it has caused damage to the ^^;^iS^^ ^•r ":^^ ^,^y"~Kj J ./'^y^^ iij "•'•^y .^ ^ ^^. ^-' '''^^^•.•^y' .(^ @ CRA Nos. 2547/98 & 2548/98 left lung, on which, an injury of 2 x1 x2.5 cm was found. The Autopsy Surgeon has opined that it was an ante-mortem injury caused by a sharp edged weapon and the cause of death was haemorrhagic shock due to above injury and it was homicidal in nature. The Postmortem report is Ex. P/10.

2.3. It is stated that Burka Samaiya (PW-1) and Burka Gajendra (PW-2) had also sustained simple injuries, which were caused by the same spear.

2.4. The case of the prosecution was based on eye-witness account of Burka Samaiya (PW-1 ), Burka Gajendra (PW-2) and Punem Kanhaiya (PW-3). The learned Special Judge relied on the testimonies of these witnesses and convicted and sentenced the appellants as above. Hence, this appeal.

3. Ms. Savita Tiwari, learned counsel appearing on behalf of the appellants, has not disputed homicidal death of the deceased. She has also not disputed the involvement of the appellants. She has argued that in the above facts and circumstances of the case, when the incident took place all of a sudden and a single injury was caused in heat of passion, an offence under Section 302 IPC would not be made out and the appellants would be liable for punishment under some lesser Section, preferably Part II ofSection 304 IPC.

4. On the other hand, Mr. S.R.J. Jaiswal, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Special Court. •-'"'^^ ^-^ ^- 4 CRA Nos. 2547/98 & 2548/98 We have heard counsel for the parties. In Hari Ram -Vs- State of Harvana. AIR 1983 SC 185, the

6. Supreme Court observed that in the heat of the altercation between deceased on the one hand and the appellant and his comrades on the other, the appellant seized a jelli and thrust it into the chest of deceased. This was preceded by some serious remark. Only one blow was struck by the appellant at deceased. In the above facts and circumstances, it was held that it was a case of 304 Part-II IPC and a punishment of 5 years R.l. already undergone, was held to be proper.

7. In Jagtar Singh -Vs- State of Punjab. AIR 1983 SC 463, a knife was used and in sudden quarrel on spur of moment, a knife blow was given on the chest and the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this c._ injury was sufficient in the ordinary course of nature to cause death. The Supreme Court, in the above facts and circumstances, held that it was a case u/s 304 Part-11 IPC and a sentence of imprisonment for 5 years will meet the ends ofjustice.

8. In Shitla Prasad alias Baba -Vs- State of U.P.. AIR_1994_§£.

1643. the appellant who was armed with a spear, gave a spear blow to the deceased in his abdomen. The Doctor, who conducted the post mortem, found one penetrating wound in the stomach, above 1 ""-- y -•^ CRA Nos. 2547/98 & 2548/98 the umbilicus and he also found that omentum was coming out of the wound. The other injury was only an operational which continued with the left angle of injury No.1. hle also found a wound 2 cm x Vz cm under injury No.1 in the mesentery cutting a branch of the mesentery artery. There was a quarrel regarding diverting water to the field and in the said quarrel accused inflicted injuries to the deceased. It was held that intention to cause a particular injury which the doctor opined to be fatal was not established and thus the offence would fall under Part-11 of the Section 304 IPC. Custodial sentence of 7 years already undergone was held to be proper.

9. We have carefully gone through the evidence of Burka Samaiya (PW-1), Burka Gajendra (PW-2) and Punem Kanhaiya (PW-3). These witnesses have clearly stated that Punem Laxman (A-1) had assaulted the deceased in the above manner by using a spear. They have deposed that Punem Laxman (A-1) had assaulted Burka Somaiya (PW-1) and Punem Gajendra (PW-2) also. The evidence of these witnesses is duly corroborated by the medical evidence of Dr. J.P. Sonkar (PW-5), who conducted autopsy on the dead body of the deceased and found the above injury, as also Dr. Sanjay Rana (PW-6), who had examined one of the injured witnesses. The other injured witnesses were examined by Dr. J.P. Sonkar (PW-5). Thus, the finding recorded by the Sessions Judge that appellant -Punem Laxman (A-1) had assaulted the deceased .'^: ^. ® CRA Nos. 2547/98 & 2548/98 and injuredwitnesses in the above manner, by using a spear cannot be assailed. There is also sufficient evidence to show that appellant Punem Hunga (A-2) had shared common intention with appellant Punem Laxman (A-1) to assault the deceased, as firstly the altercation took place between appellant -Punem Hunga (A-2) and the deceased and thereafter, appellant Punem Hunga (A-2) went to his house and came with his son, who was armed with a spear and the incident took place.

10. Now we shall consider the main argument advanced by Ms. Tiwari.

11. In the instant case, there is no evidence about preparation and premeditation. The deceased and the eye-witnesses were sitting in the house of Bheema and were attending the Kriyakarma of his daughter. Punem Hunga (A-2), being a member of their community, also came to the house of Bheema to attend the said ceremony. There some altercation took place between the deceased and appellant Punem Hunga (A-2). In fact, the deceased was asking Punem Hunga (A-2) as to why he was not attending the meetings of the community. On this, Punem Hunga (A-2) had replied that he was being treated as a person of low category in the community, therefore, he was not attending the meetings and he became enraged and left that place, feeling insulted and then, father CRA Nos. 2547/98 & 2548/98 and son (A-2 and A-1) came together and a single blow by spear was given by the son, Punem Laxman (A-1). Though Punem Laxman (A-1) was free to repeat the blows, but he did not do so. This shows that there was no intention of the appellants to commit murder of the deceased and the incident took place all of a sudden, and a quarrel has preceded the main incident.

12. That apart, the intention of appellant - Punem Laxman (A-1) to cause that particular injury to the lung of the deceased which proved fatal, was also not established.

13. We are of the view that in the above facts and circumstances of the case, an offence under Section 302/34 IPC would not be made out and the appellants would be liable for punishment under PartlIofSection304IPC.

14. In the result, the appeals are partly allowed. The conviction and sentences awarded to the appellants under Sections 302 & 302/34 IPC are set-aside. In stead thereof, the appellants are convicted for commission of culpable homicide not amounting to murder and sentenced to the period already undergone, which comes more than 7 years for appellant - Punem Laxman (A-1) and about 6 years for appellant Punem Hunga (A-2) (both without remission). The conviction and sentences awarded to appellant - Punem Laxman (A-1) under Sections 324 and 324 IPC are 8 CRA Nos. 2547/98 & 2548/98 maintained. The direction to run the sentences concurrently is also maintained. It is stated that the appellants are on bail. Their bail bonds shall continue for a period of 6 months in view of Section 437-ACr.P.C. Sd/- Sunil Kumar Sinha Judge sunita Sd/- R.N. Chandrakar Judge