Lack of intent or knowledge of probable death alters culpability from homicide to lesser offenses under IPC.

JUDGMENT :

HARPREET SINGH BRAR, J.

1. This instant appeal has been preferred by the appellant-accused against the judgment of conviction dated 05.08.2003 and order of sentence dated 07.08.2003 passed by learned Additional Sessions Judge, Chandigarh in Sessions Case No.11 of 29.08.2001 arising out of FIR No.73 dated 13.04.2001 registered under Section 304 of IPC at Police Station- Sector-19, Chandigarh, whereby, the appellant was sentenced as under:-

FACTUAL MATRIX

2. Succinctly, the facts are that on 13.04.2001, the appellant and the complainant- Sitla Parshad went to the stall (phari) of deceased Vijay Kumar to purchase cigarettes (beedi) and a pouch of tobacco. The appellant bought a pouch of tobacco for which the deceased demanded Rs.1 as sale price but the appellant told him that he did not have any loose currency, upon which, the deceased became angry and demanded his tobacco pouch back. This angered the appellant and he caught hold of the deceased by his collar and started giving fist blows on his mouth, head and abdomen and also kicked the deceased in his abdomen. Due to the said beatings, the deceased fell down on the ground and blood started oozing out of his mouth and nose and he became unconscious. Thereafter, Vijay Kumar was taken to Sector-16, General Hospital, Chandigarh, where he was medico-legally examined and referred to PGI, Chandigarh given his serious condition. Before Vijay Kumar could be declared fit by the concerned Medical Officer, he passed away on 15.04.2001 and his post mortem was conducted on 16.04.2001. The Medical Officer who conducted his post mortem examination opined that the cause of death was mainly head injury and that the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. Thereupon, after following due procedure, the concerned police filed the final report under Section 173 Cr.P.C. against the appellant for commission of offence punishable under 304 IPC.

3. The learned trial Court upon finding a prima-facie case, framed charges against the appellant for commission of offence punishable under Section 304 of IPC, to which he pleaded not guilty and claimed trial. On assessing the evidence available on record, the learned trial Court vide the impugned judgment dated 05.08.2003 and order of sentence dated 07.08.2003 convicted and sentenced the appellant-accused under Sections 304 as mentioned above.

4. However, the remaining portion of the sentence awarded to the appellant in the present case, after he had already undergone a custody of 2 years and 10 months out of the maximum sentence of 5 years, was suspended by this Court vide order dated 26.02.2004.

CONTENTIONS

5. Learned counsel for the appellant-accused has vociferously contended that upon a careful perusal of the facts of the case and the evidence of the prosecution witnesses, it becomes absolutely clear that the appellant was wrongly charged and convicted for offence under Section 304 , whereas, the facts attracted a charge under Section 323 of IPC at most, since the alleged act was not done with knowledge that it would likely cause death. She further contended that the entire case of the prosecution was based on the testimonies of PW4 and PW10 but the evidence of PW4 cannot be relied upon as he was a chance witness and a relative of the deceased whose presence has been denied by PW10 Sitla Parshad at the spot of occurrence. It is further contended that even evidence of PW10, statement made by the appellant under Section 313 Cr.P.C. and the evidence of DW1 are all in unison that there was a heated exchange of words bet