1. The appellant stands convicted under Section 302/34 IPC and sentenced to R.I. for life with fine of Rs.500/-, in default to pay fine, additional RI for one month, as ordered by IInd Additional Sessions Judge, Katghora, District Korba, in Sessions Trial No.97/2021 vide impugned judgment dated 24.07.2023.

2. Brief facts of the case are that, on 05.07.2021 at about 11:30 A.M. the informant Gajanand Uraon, Ward Boy of District Hospital, Korba, have given a written information issued by the doctor of District Hospital Korba with respect to death of deceased Shiv Mangal Korram intimating that on 05.07.2021 at about 2 A.M. Shiv Mangal Korram was brought to the hospital in an injured condition and he succumbed to his injuries on the same day about 7:45 am. Based on the intimation given by the doctor, the police has registered a merg intimation Ex.P/3 and started merg inquiry. Inquest Ex.P/14 of the dead body of the deceased was prepared in presence of the witnesses and body was sent of postmortem to 100 bedded hospital Korba where PW-10, Dr. Ravikant Singh Rathore, has conducted the postmortem of the body of the deceased on 05.07.2021 and gave postmortem report vide Ex.P/16 whereby the doctor has found the following injuries over the body of the deceased:

"• stitched wound over right parietal occipital region 2cm

• abrasion over left shoulder lateral aspect 5x3cm

• abrasion over left scapula 3x2cm

• multiple linear abrasion over left flank of length 4-6cm parallel to each other, obliquely."

3. The doctor given its report stating that hematoma present in right parietal area under skull measuring in subdural space measuring 9x7x1cm and opined that cause of death is severe head injury. Viscera was preserved and sent for its FSL examination to co-relate with circumstantial evidence. On 06.07.2021, FIR Ex.P-19 was registered by the police under Section 302 IPC against the appellant and one another co- accused Shivlal (Minor, juvenile in conflict with law). Spot map Ex.P/2 was prepared by the police. Memorandum statement of appellant was recorded on 06.07.2021 vide Ex.P/5 in which he disclosed that he has assaulted the deceased by burnt firewood and he concealed the same in a nearby wall of his house. Based on the disclosure statement Ex.P/5, the burnt firewood was seized vide Ex.P/6. Plain soil and bloodstained soil was also seized from the place of occurrence vide Ex.P/8. Spot map prepared by the Patwari vide Ex.P/11 was obtained by the police. Clothes of the deceased, small part of the body organ of the deceased were seized vide ExP/18 and the same were sent for regional FSL, Bilaspur vide Ex.P/22 for its examination from where Viscera report ExP/25 was obtained, according to which, no any poisonous substance was found. Clothes of the deceased as well as of the accused persons, seized weapons of offence and plain soil and bloodstain soil were sent for FSL examination for confirmation of presence of human blood from where report Ex.P/26 was received and according to which, blood were found on the clothes of the deceased and blood stained soil, but no blood was found on plain soil and burnt firewood which was seized at the instance of the appellant. Human blood was found on the bloodstained soil and half pant of the deceased whereas, the blood found on the Lungi and underwear of the deceased were disintegrated and their origin could not be determined.

4. A query was also raised from the doctor who conducted the postmortem of the deceased about the nature of death as to whether the same is homicidal or not In answer to the query, the doctor has given his opinion vide ExP/29 that as per postmortem examination, the nature of death is homicidal. However, it should be co-related with Viscera examination report. The police has recorded statement of the witnesses under Section 161 CrPC and after completion of investigation charge sheet was filed under Section 302/34 IPC before the Judicial Magistrate First Class, Katghora, District Korba, from where the case was committed to the Sessions Judge, Korba and ultimately it has been transferred for its trial to Second Additional Sessions Judge, Katghora, District Korba.

5. FIR was registered against two accused persons namely Jailal Korram and Shivlal Korram. Since co-accused Shivlal found to be juvenile on the date of incident, separate charge sheet was filed against co-accused Shivlal before the concerned Juvenile Justice Board. Charge sheet before the Judicial Magistrate First Class, Katghora was filed only against the present appellant. On 14.12.2021, charge under Section 302/34 IPC has been framed against the appellant, who abjured guilt and claimed trial before the trial Court.

6. In order to bring home the charge against the appellant, the prosecution has examined as many as 10 witnesses, whereas, the appellant has examined one defence witness. The statement of the appellant under Section 313 CrPC has been recorded by the trial Court in which he denied the material appears against him during trial. He submits that on the date of incident the deceased was in an inebriated condition and got slipped near the place used for cleaning utensils and his head was collided with a wall. Further, when the deceased was being taken to the hospital by him in a motorcycle, en-route also they fell down from the motorcycle and received injuries on the head of the deceased again and he died due to these injuries.

7. After considering the evidence available on record against the appellant, the trial Court has convicted the appellant under Section 302/34 IPC and sentenced him as mentioned as para-1 of this judgment. Hence this appeal.

8. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the case. The witnesses examined by the prosecution was all relative witnesses and as such their evidence are not sufficient to hold guilty the appellant for capital punishment of life imprisonment. The memorandum and seizure witnesses have not supported the case of the prosecution and therefore recovery and seizure lost its significance. He would further argue that there are material omissions and contradictions in the deposition of witnesses who are claimed to be eyewitnesses. Assailing the impugned judgment of conviction he further submits that even if the entire version of the prosecution is accepted in its toto even then the offence under Section 302 IPC cannot be attracted upon the appellant. The evidence which has been recorded of all the witnesses show that the deceased was fully drunk and were in an inebriated condition. The deceased was not even able to walk straight under the influence of Alcohol. On the basis of this, counsel for the appellant submits that this by itself would show that there was no premeditation on the part of the appellant for causing murder of his brother. There was no any intention to cause death of the deceased by the appellant and for the said reason the conviction of the appellant under Section 302 IPC was not justified.

9. The appellant further submits that it is also not a case of the prosecution that deceased had died instantaneously on account of assault made. Rather, the deceased is said to have died after two days from the date of incident i.e. during the course of treatment at Hospital which would further establish that the death occurred not because of the assault made by the appellant, but was on account of subsequent complications which arose on account of the alleged injuries caused by the appellant and for this reason also the offence under Section 302 IPC would not be attracted. Therefore, even if the court comes to conclusion that the appellant has caused injuries to the deceased on account of which death has taken place, the act of the appellant does not travel beyond Section 304 IPC and therefore the appellant may be sentenced for the period already undergone after convicting him under Section 304 (Part-I or II) IPC.

10. On the other hand, the counsel for the State vehemently opposes the arguments advanced by the counsel for the appellant and submits that the number and nature of injuries found on the body of the deceased reflects the intention to kill him. The evidence of prosecution witnesses are reliable, but for minor contradiction no any incriminating material brought by the defence so as to hold their evidence doubtful. There was ample evidence which has been recorded during the course of investigation as also evidence which has been adduced before the trial court which would establish that the deceased was subjected to repeated assault by the appellant and there are eyewitness to the incident. Therefore, the trial Court has rightly convicted the appellant for the offence under Section 302 IPC.

11. We have heard the counsel for the parties and perused the material available on record including the judgment impugned.

12. The first question that would arise for consideration is whether death of deceased Shiv Mangal is homicidal or not

13. PW-2, Gajanan Uraon, Ward Boy of the District Hospital, Korba, has proved the merg intimation Ex.P/3 and have stated that he has taken written intimation given by the doctor to the police station and gave the same to the police. PW-9, Ramesh Kumar Pandey, Investigating Officer, have deposed that on the basis of intimation given by PW-2, he recorded merg intimation Ex.P/3. PW-7, Rajendra Kumar Tekam, witness of inquest have deposed that inquest of body was prepared in his presence and body was sent for postmortem. PW-10, Dr. Ravikant Singh Rathore, have conducted postmortem of the deceased and deposed that on 05.07.2021 at about 4:40 pm the police constable brought the deadbody of deceased for postmortem. The body was identified by Pal Singh, Ajay Kumar and Rajendra and thereafter he started postmortem and found that Hematoma present in the right parietal area under skull in subdural place measuring 9x7x1cm. In the intestine of the deceased the doctor found watery flood with alcohol smell present inside. The doctor also observed in the postmortem report that deceased was being treated at District Hospital Korba for head injury and declared died on 05.07.2021 at about 9 am during the treatment. The doctor opined that cause of death is severe head injury. However, Viscera are preserved for needful examination to co-relate with circumstantial evidence and time elapsed since death is about 12 hours.

14. In his cross examination, the defence could not bring any material which would show that death of deceased was not due to head injury, but was for some other reason. Although the doctor has admitted in cross examination that injuries found on the body of deceased could also be received by him on account of falling and hitting on a wall near the place used for cleaning utensils, but there is no evidence that the deceased received injuries by falling on the place used for cleaning utensils. Possibility of receiving injuries again on the same parts of the body when he fell down from motorcycle also admitted by the doctor, however, from the evidence of doctor it is not revealed that the deceased received injuries only on account of falling and hitting on a small wall near the place used for cleaning utensils because the deceased received injuries not only on his head, but also on the other parts of the body. Suggestions given by the defence to witnesses PW-1, Madhuri Korram, PW-6 Awadh Ram Tekam and PW-7 Rajendra Kumar Tekam that deceased fell down from the motorcycle when he was being taken to the hospital have been denied by them.

15. From the evidence of prosecution witnesses and the defence taken by the appellant, as also the postmortem report and query report given by doctor, it cannot be safe to hold that the deceased received injuries by falling an hitting on a small well at utensil cleaning place. In Viscera report Ex.P/25, no any poisonous substance was found. As per query report Ex.P/29, the nature of death is opined as homicidal. Therefore, in view of the evidence available on record particularly the evidence of eye witnesses corroborates the medical evidence and other circumstances of the case the Trial Court has rightly comes to conclusion that deceased died due to injuries received by him which is unnatural condition and death of the deceased is homicidal.

16. The next issue to be considered is the involvement of appellant in the crime in question.

17. To establish the guilt of the appellant, the prosecution has examined PW-1, Madhuri Korram, PW-6, Awadh Ram Tekam and PW-7, Rajendra Kumar Tekam as eyewitness of the incident.

18. PW-1, Madhuri Korram, wife of the deceased, have stated that deceased Shiv Mangal was his husband and the accused persons are younger brothers of her deceased husband. Jailal was married whereas Shivlal was bachelor. She says that there was regular dispute ensued between her husband and Shivlal as he wants to go outside to earn his livelihood, but her husband (since deceased) asked him to remain stay in the village and to do agricultural work. Dispute was also ensued with appellant Jailal on this count. On the date of incident, dispute arose between the deceased, Jailal and Shivlal on the same issue, but ultimately they were pacified and in the evening when her husband returned back from his work some dispute again arose between the appellant and her husband on the issue of cooked vegetable prepared by wife of the appellant, which resulted into scuffle and the appellant assaulted on her chest and abdomen. At the same time, the appellant took up a burnt firewood which was lying there and assaulted on her husband. By that time, co-accused Shivlal also joined the appellant and both of them assaulted her husband on his head and shoulder by a piece of brick. On account of assault being made, her husband fell down there and was unable to stand on his foot. She too was unconscious due to injuries received by her. Her brother (brother in law of the deceased) have taken her husband to Podi Uproda Hospital from where he was referred to Korba Hospital and on the next day he died during treatment. She further states that she has not taken any medicine on assumption that she will cure in due course of time.

19. In her cross examination, she admits that on the date of incident her deceased husband, the appellant as also the co-accused all were intoxicated. She further states that quarrel ensued in the courtyard of her house and the appellant assaulted her husband by a burnt firewood from the earthen stove lying in the courtyard. He was taken to hospital by her brothers. Her husband was not in a position to speak anything. She denied the suggestions given to her that the accused persons have not assaulted her husband.

20. From the evidence of PW-1, Madhuri, it appears that the quarrel took place between the deceased and the accused persons on the issue of cooked vegetable and during the scuffle the appellant had taken out a burnt firewood from the earthen stove and assaulted upon the deceased due to which he received injuries. PW-6 Awadh Ram Tekam, cousin brother in law (Sala) of the deceased, have stated in his deposition that Shiv Mangal made a telephonic call to his brother in law Rajendra to take his wife PW-1, Madhuri in her parents house and then PW-6, Awadh Ram Tekam and PW-7, Rajendra Kumar Tekam came to the house of Shiv Mangal. They reached there at about 6-7 pm; at that time Shiv Mangal shown his angerness upon the appellant that who has cooked the vegetable and abused him and then the appellant came out and assaulted Shiv Mangal by means of a stone on his head. At that time, Shivlal also came there and he too assaulted Shiv Mangal by hand and fist; thereafter the appellant-Jailal took a burnt firewood and assaulted Shiv Mangal by the same. When Madhuri came to intervene, she too was assaulted by appellant-Jailal by kick on her abdomen and thereafter this witness has taken Shiv Mangal to the hospital from where he was referred to Korba and next day he died. In cross examination, he admits that the quarrel ensued on the issue of cooked vegetable. He denied the suggestion that the deceased received injuries by falling from motorcycle. Similar is the deposition of PW-7, Rajendra Kumar Tekam, who also stated in his deposition that on the information received from Shiv Mangal, they went to his house where Shiv Mangal was abusing Jailal on the issue of cooked vegetable and then Jailal came out and assaulted Shiv Mangal by means of burnt firewood. Thereafter, they have taken Shiv Mangal to the hospital.

21. From the evidence of these two witnesses, the quarrel between Shiv Mangal and Jailal was narrated before making assault by Jailal to Shiv Mangal and during that scuffle Jailal took a burnt firewood and assaulted the deceased.

22. PW-10, Dr. Ravikant Singh Rathore, who conducted postmortem of the deceased, has also opined that the injury received by the deceased could have been caused by the said burnt firewood which were sent to him for its examination and opinion. There was no injury found on the body of the deceased caused by any sharp edged weapon. There was no fracture on his body, although Hematoma present in he right parietal area of his head.

23. Defence could not bring any material from the cross examination of these witnesses so as to disbelieve their evidence with respect to involvement of the appellant in crime in question. Rather, it appears that on the date of incident the deceased as well as the appellant were consumed liquor; they were quarreling to each other on a pity issue of cooked vegetable; previously also regular dispute with respect to earning livelihood was existed between them and in between the quarrel took place where the appellant took a burnt firewood which was lying there and assaulted the deceased by the same. Thus, involvement of the appellant in crime in question is also proved.

24. Considering the entirety of the facts and circumstances of the case as also the evidence available on record, the relationship between the parties, the genesis and origin of occurrence, the manner of assault and the weapon of assault used which is a burnt firewood, it can safely be inferred that the appellant and the co-accused intended to get the deceased in their control. The deceased and the appellant were in a drunken condition. It is said that the dispute ensued on a pity issue of cooked vegetable which resulted into a scuffle between them and at that time out of an anger and all of a sudden the appellant picked out a burnt firewood which was lying there and assaulted the deceased. It is not the case of the prosecution nor the evidence suggests that the appellant was having any weapon in his hand at the time of quarrel. Even according to prosecution witnesses the appellant assaulted the deceased with a burnt firewood which was lying there. Therefore, what emerges as plausible and possible story is that out of sudden quarrel and fight between the appellant and the deceased without any premeditation, much less intention to cause death, assaulted the deceased with the help of a burnt firewood. It appears that the blow given by the appellant was not with much force, otherwise there must be some fracture found on the head of the deceased. It is difficult to hold that in these circumstances, particularly when there is no motive for assault but the incident is said to have happened all of a sudden, it would be a murder. Therefore, in our considered opinion, the criminal overt act of the appellant would only amounts to culpable homicide, not amounting to murder by application of exception Thirdly of Section 300 IPC and the appellant is liable to be convicted only under Section 304 (Part-II) IPC.

25. In the result, the appeal is partly allowed. The conviction of the appellant under Section 302/34 IPC is altered to Section 304 (Part-II)/34 IPC and he is sentenced to RI for 5 years with fine of Rs.500/-. In default to pay fine amount, further RI for one month. The appellant is reported to be in jail since 06.07.2021. The period undergone by the appellant be set off in the total sentence awarded to him.

26. The lower Court record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.