(^ ^ HiGH COURT OF CHHATTISGARH AT BiLASPUR Crisaiaal Appeal No. 249/2002 APPELLANTS RBSPONDENT Sadhiirain aad aiioUier VERSUS State of Chliattisgaiii Judgnient for cousideratiou I-ion'ble ShriJustice T.P. Sharma JudgBient post for g -2-2008 Sd/- . : j U D GE 0^-2-2008 Sd/- T.P. Sharma Judge Sd/- Dhirendra Mishra Judge ^,^ HIGH COURT OF CHHAT-TiSGARH AT BiLAS?UK Crimiaal Apneal NO. 249/2002 APPBLLAHTS 1. 2. RJBSPONDBHT Sadlraraia, S/o Salgu Sai Rawat, aged about 29 years Latliuram, S/o Kandni Ram Rawat, a^ed about 50 years Botli are resident of viiiage Pharsatoli, PSH Bagbahar, Tali, Patthalgaon, Distt. JaslApurnagai" VERSUS State of Clihattisgai-h tiu'ough P.S.H. Ofiicer, P.S.H., Bagbahar, Distt. Jashpuniagar (CG) PRBSENT: Sliri J.K. Shastii, Advocate for Uie appellaiit. Shri Rakesh Jha, Paael Lawyer, for tlie State, jUuiuMKNT (B-2-2008) Dhireiadra Mist&ra, J This crioiiiial appeal has been preferred uiider Section 374(2) of Cr,P.C agaiiist tlie judgment of conviction and order of sentence dated 8th VebrvLary. 2002 passed m S.'l'. No. 124/2001 whereby leamed Additional Sessions Judge, Jashpuniagar has convicted fhe appeUaats under Section 302 read with Section 34 of I,P.C, for causuig hoinicidal deatli of BadiTiiaUi aiid sentenced each ofthera with uiiprisoiinient for life aiid fiiie of Rs. 500/-, ui default ofpaynient offiiie, to furfher undergo R.i. for two montlis. 2. Case of tiie prosecution, ia brief, is tliat complaiiiaiit Anil Yadav (P.W. 3) lodged a report of Annexurc P-6 on 19-5-2001 at about 8.45 hrs fhat on 16-5-2001, appellaiit Sadhuram came to tlieir shop at 11 p.m.. to piirchase some provision and at that time, Uiere was some quaiTel betvveen Sadhuium and Bidva, fatlier of tlie coniplaiiiant. On 17-5-2001 at about 7 p,m. wheu he aiid his brotlier-ui-law Badriiiatli were goiiig from Uie house towards Uie shop, SadhuraBi called botli of tliem iii liis house, huried mtliy abuses aiid stailed beatiiig liis brotiier-iu-law. At that timie, appeUant Latiiurain Rawat cajiie fhere wiUi iatlii aiid staited assaulting, Badi'iiiatli feU on Uie ground, even tlien Sadhuraai assaulted him by giiiidiiig stone, as a result ofwhich, his brotlier- in-law sustaiiied iiijiuies over his head aiid biood staiteci oozing. He also atteiiipted to assault Uie complaiiiaiit by fhrowio.g gi-uiduig sfone at him, however he duckecl, Tankadhar came tliere aiid took out BadrmaUi, Number of persons of Uie locality gafhered there, Uiereafter report was lodged, Badrhiath was sent to Kotba Hospital where he was treated, however when his coudition did not iniprove, he was taken to Lailunga Hospital where he rcBiaiiied in fhe night, He was refen'ed to Raigai'h hospital aiid while he was beiag takeu to Raigarh Hospital iB. a jeep, he died on way near Gharghoda. Merg uitimation of Ex. P- 10 and report of Ex. P-6 was lodged by P.W. 3 Anil Yadav on 19-5-2001. 3. Diuing iavestigation, uiqiiest (Ex. P-5) over fhe dead body of tlie deceased was prepared. His body was sent for post morteni to Goveminent Hospital, Lailuiiga vide Ex, P-12 where Dr, Shallendra Upadhyay (P.W, 10) conducted post mortem aiid gave his report of Ex, P-18. Weariiig apparels aad discharge ticket of tlie deceased from fhe CoiDiniiuiity HealUi C-entre, Lailunga was taken into possession vide Ex. P-1. Blood stained soil and plaia soil from tiie place of uicident was takeu iato possession vide Ex. P-2, Gruidiag stone after benig produced by appeUaiit Sadhuraiii was taken iato possession vide Ex. P-3. Club was taken uito possession on betag produced by appellaiit LatliuraBi vide Ex. P-4, Site plaii has been got prepared from Halka Patwari. Gruidiag stone aiid Lathi seized froni Uie appeUaiits were sent for exaniination to GoveniBient Hospital, Lailunga where Dr. ShaUendra Upadhyay after exaaiiiiation of the above articles gave his opuiion fiiat tlie uijuries desciibed ia fhe post niortem report caii be caused by me above Lorha aiid Latlii. 4. After conipletiiig uivestigation, charge sheet was filed ui the Court of Chief Judicial Magistrate, Jashpumagai' who ta tum coniniitted the case to the Court of Sessions Judge, Raigarh and tlie saaie was received ou trausfer for trial by fhe leamed Additional Sessions Judge, Jaslrpuraagar. 5. Duriiig trial, tlie prosecution exaiained 10 witaesses to. all, thereafter statenients of accused persons were recordeci ui which tliey deuied fhe evicleuce appeailiig agamst fhem m tlie prosecution case aiid pleaded innocence and false iBipUcation. They also exainnied witness Anand Das ia their defence. 6, The trial Court after hearmg fhe coiuisel for the respective parties, convicted aad sentenced fhe appeUants as m.entioiied aDove. 7. Hoinicidal deatli oftlie deceased Baclnnath is not in dispute. Even oUienvise, from the statement of AnU Yadav (P,W. 3) aiid medico legal exaiiiiiiation report of Ex, P-16 given by Dr, G.J, Lakra (P.W. 8) who exaoiiiied tiie Badrinath on 17-5-2001 and found one laceiuted wound in size of 1 x % x 4"? over right parietal region, abrasion ia size of W' x W at doreuin of tlie distal phalaDX of right thuHib aad one contusion ia size of 6" x l^ at back of tlie right shoulder; aiid also from the evidence of Dr. Shailendra Upadhyay (P,W. 10) who has proved Uie post mortein report of Ex. P~18 ui which, it is mentioned tliat right side of frontal bone was broken, there was a lacerated wound over right paiietal bone region ui size of 1" x 1"\ bone deep, the iiijuries were caused by hard aiid blunt object and fhe caiise of death was conmia diie to uitracraiiial tension as a result of extenial haemorrhage because of head injuiy aiid nature of death was homicidal, Uie homicidal deatli of Badrinath is estabiished, 8. Leamed coiuisel for the appeUants submits that accordiiig to tlie case ofthe prosecution, Uie incident occuiTed on 17-5-2001 at about 7 a,m., however fhe report ofUie coHiplainaiit on mat date has been deliberately suppressed, Froni tiie penisal ofniedico legal report of Ex. P-16, it is clear mat on Uie pnmaiy examuiation, all tlie injuries were foiuicl to be snnple ia uature. The offence was registered ou 19-5-2001 when Badi-iiiath died, The prosecution has not filed fhe bed head ticket / treatment papers of Uie deceased to establish fhe nature of deatli and the cause of deatli of the deceased. The conviction is based on the stateiiient of complauiaat Anil Yadav (P,W. 3) who is brofher-ui-law of the deceased aiid as such aa hiterested witoess, The witiiesses have adinitted tliat the iacident occurred at a place which is suiTounded by so inany dwemng hoiises aiid Uie persons were present iii tilieu' respective houses at the tmie of iD.cideut, however no iadependeut wiUiess has been exasiiuied. The nienio dated 17~5-2001 of Ex. P-9 by which fhe deceased was referred to Priinaiy Healfli Centre inentions that the appeUants assaiUted Uie deceased witih. LaUii however, P.W, 3 AnU Yadav ia the FJ,R, as also before fhe Court '^. has alleged that Sadhurani assaulted tlie deceased with a gruiduig stone over his head aad tlius he has made raaterial improvement before the Court. Lastly it was argued fhat consideriiig tlie case of tlie prosecution aiid also considering that Uie deceased sustamed ouly one lacerated wound over his head, the intentioii of causuig death of the deceased cannot be attribzited to the appellaiits and tiie offence does not travel beyond Part I or ii of Section 304 of I.P.C. ReUaiice is placecl on Visieet Kiimasr Chaiit&asi -V- Btate of U.P.1. 9. On the otiier haad, ieamed counsel for the State supported the iiiipugned judgmLent, 10. We have heard learaed counsei for the parties. We have perused tlie record as also the impugned judgiiieut. 11, The conviction of the appeUants is based on statement of P,W. 3 Coniplaiiiaiit Anil Yadav who is eye-witness ofthe uicident. He has stated tliat on 17-5-2001 at about 7 a.Bi., he along witli liis bromer-ui-law were proceeduig towards tlieir shop, when they passed uear me house of appellant Sadhuram, Sadhurain caUed Uiem aiid complaiiied fhat a toni note of Rs. 2 was given by tlieir father/when BadnnaUi protested th.at he (Sadhiiram) caii resolve tliis dispute iii shop, he chaUenged the deceased and started beatuig. Lathuram also caiiie tliere aiid started assaultiiig his broUier-ui-law aiid gave tliree assaiilts by club over his right shoiilder and one assault over left side of his forehead. His brofher-iii-law becanie unconscious and fell on me veraaclali of Sadhuram, when appeUao.t Sadhuram assaulted hioi witli a griiidiiig stone over nght portion ofhis head above eai'. He shouted for help, Taiikadhar caaie Uiere. They took out Badriiiath, Sadhurai3i also flirew grincling stone at hioi, however he ducked by sittiiig, His broUier-ui-law regained cousciousness after sometioies. They narrated Uie iiicident to his fatlier. His father told theni that appellaiit Sadhurain also cam.e ui tlie evenuig on 16dl May ui tlie shop and abused hid. Thereafter, he aiid Nakiil Sai Paikra took Baclrinatli to Bagbahiu poUce station aiid lodged report and from fhere fhey went to Kotba Hospital. After pnaiary treatment, fhey retumed home, however Badiiaam complaiiied severe headache, ' 2008 AIR SCW 1 He becaine unconsciousness on way while beuig taken to Lallunga Hospital, He remaiiied ia Lailunga Hospital ia tiiie night from where he was refeiTed to Raigarh Hospital aiid whUe he was beiiig taken to Raigarh Hospital, he died near Gharghoda. They brought hiBi back aiid mfonsied about the uicident ui Bagbahra poUce station. In tlie cross-exaiiiuiation, oniissions about tlie abuse by Sadhuraiu to his fafh.er aiid tlircat by Sadhurani fhat he has beaten one aiid he shatl also crush the coniplainaiit, has been pouited out iii his diary statenient ofEx. D-1. In para 5 ofhis cross-examiD.ation, fhis witoess has admitted tliat tlie house of Sadhuram is surrounded by several houses tacluduig tlie houses of Ttilsi, BnjniohaB., Seetai'ani, Arjun, etc aiid uihabitaiits were present isi tlieir houses. This witoess has denied that there is aniBiosity between Mahkul aad Rawat commiinity of tlie viUage aad tliat his fafher is head of MabikiU com.munity of tlie vUlage whereas Sadhurani is head of Rawat com.m.unity aad because of fhis aiiiinosity, they have falsely implicated Sadhm'am aiid Latliuram m this case. 12, Taiikadhar (P,W. 4) has deposed Uiat he heai'd Uie shouts of Raikumar that Anil is beiag beaten. Hearmg the shouts, he went towards fhe house of Sadhurara and saw Anil, SadhuraBi aiid Lathuram standiag mere. Aiiil asked him to see Badriiiath who was lying there ui unconscious condition, however fhe accused persons were not there. He has been cross-exainiaed after being declared hostile, however in fhe cross-examiuation also, he has denied Uie suggestion that SadhuraDi aud Latliurani were holdiag Latlii but admitted mat wtfe of Lathuram had caught Latliuram and he has also admitted fhat he noticed nijuiy over the head of Badriiiam froni where blood was ooziiig aad tliere was some quarrel, He has also admitted that he has good relations with the famUy offhe acciised persons, 13, P.W. 1 Liiigra] has proved tlie seizure nieBio of Ex, P-1, P-2, P-3 aad P-4 by which latlii, giiiidiiig stone aiid ofh.er ardcles were seized diiruig uwestigation. This witiiess has also aclmitted tliat house of Sadhuram is surrounded by several hozises aad uihabitaats of above house were present at tlie tiine of uicident, 14, P.W, 2 Sukhal Sai Paikra is me witaess of iiiqucst report, jayaiit Verma, Sub-inspector (P.W, 7) has registered tlie F.I.R. of 6 ^ ^ Ex. P-16 lodged by fhe complaiaaat AnU Yadav on 19-5-2001 and he has also affected fhe seizm'e of weapon of ofieiice aiid offaer aiticles. P.W. 8 Dr. G, J, Lakra has examined Badruiatli on 17-5- 2001 at about 12 noon aad gave his report of Ex, P-16. He has described the uijuries aiid he has given tlie opiiiiou tliat me uijuries No. 1 aiid 3 were caused by hard aiid blunt object whereas injuiy No, 2 was caused due to friction agamst hard aad rough surface aiid aU the Uiree injiuies were sisiiple ui nature. The Biemo for medical examination of Uie deceased Bientions fhat the appeUaiits gave blow to tiie iajured by lafhi, 15. The prosecution has not producecl aiid proved fhe Saaha which was recorded on fh.e basis of iD.formatioH given by complaic.aj.it on 17-5-2001, Even fhe admission aiid discharge tickets of Badrinam in Coinniunity Healtli Centre, Lailunga have uot been produced aiid proved duruig trial aiid the report of Ex. P- 6 is recorded only 011 19-5-2001 i.e. on 3rd day of the uicident FToin close scrutmy of Ex. P~6, we observe that Sanha number has also not been inentioned ta coliimn 3A offhe F.I,R. However, the meaio of Ex, P-9 tlirough which iajured BadrinaUi was sent for raedical exaBiin.atiou to Priinaiy HealUi Centre, Kotba 011 17-5- 2001 mentions fhe narne of the appellaiits fhat fhey assaulted Uie uijui^d by lami as a result of which, the deceased sustamed injuries over right side of the head, After exaia.taatioii, tlie doctor opiaed tliat tlie iiijuries were siinple io. natuiie and iniured retumed to his honie, 16. P.W. 3 Aiiil Yadav has alleged in his report dated 19-5-2001, diaiy statenieiit of Ex. D-1 as also in the evidence before fhe Coiul tliat Uie deceased was assaulted by Sadhuram with a grmditig stone over his head. This appears to be aii improvement froBi his earlier statement tiiough not produced by fhe prosecution duriiig trial, Even bed head ticket aiid discharge ticket of Conim.unity Healm Centre, Lailunga has not been produced, however consideriiig mat tlie menio to the doctor by which fhe patient was seiit to Prmiaiy Health Centre, Kotba for niedical examination recorded on 17-5-2001 aientions fhat the deceased was assaulted by Uie appellants wifh. lafhi and fhe above fact is also mentioned iii tlie F.I.R. lodged 011 19-5-2001 aiid tliat Uie deceased died on the 3rd day after he was assaulted by the appeUaats, ia our considered llll^ opuiiou, fhe uivolvement ofthe appellaiits ia the crinie to^ qziestion is estabUshed aiid tlie version ofAuil Y'adav ia tliis regard cannot be discarded sunply for not producuig the Rojnanicha Saiiha recorded on 17-5-2001 ou his infoniiation or on fhe ground fhat uiclependent witnesses resiciiiig ui the locality have not been exaaiuied. 17. Last argument advanced by leanied couusel for tlie appellaiits tliat even ifthe uivolvement ofthe appeUants in crmie iii question is held to be estabUshed, consideno.g tlie fact that tlie prosecution has cleliberately suppressed the origin aiid genesis of tlie ojSence aad tlie deceased sustaiiied oiily tliree iiijuries out of which only one was on vital part. i»e, head which was flie cause of death of the deceased aad fhat Uie doctor who examuied tlie deceased at fhe first uistaace, described tlie uijziries to be siniple m. uature aad died on 3rd day aad treatom.ent papers of the deceased have uot been produced and proved duilag trial aiid, tlierefore, iiitention of causiag deafli of the deceased caanot be attdbuted to the appetlaats, ui the facts aiid circumstaiices of the case ia haiid as noted above, we ai'e of me opuiion fhat Uiough there is direct connection with Uie deaUi of the deceased aad the assaiilt niade by fhe appellaD.ts aiid fhus the death was caiised by the appellaiits. However, takuig m^to consideration tlie fact tliat the deceased sustaiiied only 3 iiijuries over his body aiid out ofwhich only one iiijuiy was on his vital part i.e. head which was the cazise of his cleath aiid that Uie doctor who exaniined hiiii at tlie first uistaiice on 17-5-2001 described tlie iiijuries as snnple io. nature aiid therealter he retuiTied to his honie and subsequently he went to Lailuiiga Hospital where he was admitted ui Uie night aiid while he was beiiig taken to Raigarh Hospital, he died near Gharghoda and also that his bed head ticket and treatiiient papers were not produced ia the Court, we find absence of premeditation ia comimttmg Uie criaie. The uicident occuiTed because of a petty quarrel bet^veen tlie fatiier of the complabiant aiid tlie appellant on account of giviag a tora note of Rs. 2 by theu' fatiier, iii our cousidei^ed opinion, takuig into consideration tlie facts and circumstaiices of the case, nature of the iiijuries suifered by Badruiath, tlie olfence committed by the appeUaiit was only culpable honiicide not aniountuig to Biurder and ui tliese ^^ ^^ circunistaiices, we hold the appeUaats giiilty of offence puiiishable uiider Section 304 part II read with Section 34 ofl.P.C. 18, Consequently, we parUy aU.ow fhe appeal. We set aside tlie conviction of tlie appellaats under Section 302 read wifh Section 34 ofi,P.C. aiid uistead convict fhe appeUaiits uuder Section 304 Part il read witli Section 34 ofi.P.C. aiid sentence each ofthem to undergo R.i. for 7 years aad to pay a fiiie ofRs, 500/-, iii default of paynieut offiiie to furtiier undergo additional RJ, for two nionths. Sd/- Dhirendra Mishra Judge Sd/- T.P. Sharma Judge