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2012 Supreme(Chh) 207
HIGH COURT OF CHHATTISGARH, BILASPUR
RAJEEV GUPTA & SUNIL KUMAR SINHA, JJ.
Dila Alias Avatar Singh – Appellant
Vs.
State of M.P. (Now C.G.) - Respondent
Criminal Appeal No. 515 of 1997
Decided on: 12-9-2012
Advocate Appeared
Dr. Shaliesh Ahuja, Advocate, for the Appellant.
Mr. J.A. Lohani, Panel Lawyer, for the State
The main legal point established is that in cases of single blow incidents without premeditation or intention to commit murder, the offense may be considered under IPC 304 Part-II rather than IPC 302.
Headnote:
Scissors - Criminal Law - IPC 302, IPC 304 Part-II - Hari Ram Vs. State of Haryana, AIR 1983 SC 185; Jagtar Singh Vs. State of Punjab, AIR 1983 SC 463; Shitla Prasad alias Baba Vs. State of UP, AIR 1994 SC 1643; Mavila Thamban Nambiar Vs. State of Kerala, AIR 1997 SC 687
Fact of the Case:
The appellant was convicted under IPC 302 for fatally injuring the deceased with a scissors. The eyewitnesses turned hostile, but the deceased's sister supported the prosecution's case by providing the deceased's oral dying declaration.
Finding of the Court:
The court found that the deceased had made an oral dying declaration before his sister, and the medical evidence corroborated her testimony, leading to the conclusion that the death was homicidal in nature.
Issues: The main issue was whether the appellant's act of inflicting a single blow with a scissors on the deceased's abdomen constituted murder under IPC 302 or a lesser offense under IPC 304 Part-II.
Ratio Decidendi: The court referred to various cases where similar single blow incidents were considered under IPC 304 Part-II, emphasizing the lack of premeditation and intention to commit murder in the absence of repeated blows.
Final Decision: The court partly allowed the appeal, setting aside the conviction under IPC 302 and instead convicting the appellant under IPC 304 Part-II, sentencing him to the period already undergone, approximately 6 years.
As per Hon'ble Shri Sunil Kumar Sinha, J.:
1. This appeal is directed against the judgment dated 31st of January, 1997 passed in Sessions Trial No. 50/96 by the Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to imprisonment for life.
2. The facts, briefly stated, are as under :
Deceased- Basant Soni had a small bicycle shop. The appellant had a betel shop near the shop of the deceased. Both were well known to each other. On 14.10.95 at about 22.00 hours, Munna Kachhi (PW 9), Ayodhya Prasad (PW 4) and their friends were sitting in front of the shop of the deceased. Santosh Yadav (PW 6) and Dila (appellant herein) also came there in drunken condition. They also sat in front of the shop of the deceased. After sometime, the deceased also came there, and on some altercation, a quarrel begun between the appellant and the deceased. The allegations are that on quarrel, the appellant went to his betel shop and brought a scissors from the shop and gave scissors blow on the abdomen of the deceased. The incident was witnessed by Ayodhya Prasad (PW 4), Santosh Yadav (PW 6) and Munna Kachhi (PW 9). The deceased fell down in injured condition. Ku. Santoshi Soni (PW 5 - sister of the deceased) any how got the message. She immediately rushed to that place and found the deceased in injured condition. When she asked as to how it happened, the deceased made oral dying declaration before her that he was assaulted by appellant by a scissors. The matter was reported to the police by Ku. Santoshi Soni (PW 5) at about 22.30 hours, on which, the First Information Report (F.I.R. - Ex.-P/16) was registered u/s 307 IPC. Later on, the deceased succumbed to the above injury. Inquest (Ex.-P/5) on the dead body of the deceased was prepared and the dead body was sent for post-mortem. The Autopsy Surgeon, Dr. Rakesh Kumar Sahu (PW 1), found one incised wound of 1 x 1/4 inch on the abdomen which has gone deep to the spleen and has caused an injury of 1 x ½ X ½ inch on the spleen. Huge amount of blood has accumulated in the abdominal cavity. This was the cause of death, which was homicidal in nature. The post-mortem report is EX.-P/1. The appellant was taken into custody and his memorandum statement (Ex.-P/13) u/s 27 of the Evidence Act was recorded on 15.10.95 and a scissors of 8 inch having blood like stains was seized at his instance vide seizure memo Ex.-P/14. Other articles were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, a report (Ex.-P/25) was received. According to the F.S.L. report, blood stains were found on various articles, including the scissors. Though these articles were sent for. Serologist Examination, but Serologist Report could not be filed. The case of the prosecution was based on eye-witness account of Ayodhya Prasad (PW 4), Santosh Yadav (PW 6) and Munna Kachhi (PW 9) as also on oral dying declaration before Ku. Santoshi Soni (PW 5). All the-eye-witnesses turned hostile and they did not support the case of the prosecution. Ku. Santoshi Soni (PW 5), however supported the case of the prosecution by proving oral dying declaration made by the deceased. The learned Sessions Judge relied on the testimony of Ku. Santoshi Soni (PW 5) and convicted & sentenced the appellant as above.
3. Dr. Shailesh Ahuja, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. He has also not disputed the involvement of the appellant in crime in question. He has mainly argued that in a sudden quarrel between the appellant and the deceased, the appellant brought a scissors which was being used in his betel shop, and gave single blow to the abdomen of the deceased, therefore, his act was not punishable u/s 302 IPC and he would be liable for punishment under some lesser Section preferably Part-II of Section 304 IPC.
4. On the other hand, Mr. J.A. Lohani, learned
