Judgnmnt post forlq—2-20Ca / rum-1 L, imr ur' urn-mm lsu RH ‘T C, unnua‘ Annsal Eg‘ 1_‘_> l2QQ2 APPELLANTS ‘hasiram and others VEK§ljS RE§PGKDEKT State of Chhattisgarh dudgm€nt 'for consideration § Hourble Shri Justica TuP. Hi *H *5iJ'RT‘ (3" *HHAT‘TiWA‘- ‘ ‘ “ ‘SP'Ii‘ Rli A E PREEWT: Shri GS. Alliuwah'a, Advocate for the appeiiants. i Shri Ashish Shukla, Addl. Public Prosecutor, for the State. JUDGMEE‘T (Mfg-2.993; ”Dhirendra I‘viishra, J This criminal appeai has been preferred under Section 374(2) of Cr.P.C. against file judgment of conviction and order of sentence dated 26-9-2002 passed in ST No. 207/ 2001 whereby appeliants LaXmi Prasad and Devnai‘ayan have been convicted under Section 302 of LPG. Whereas appeliant Ghasirani has been convicted under Section 302 read with Section 34 of LRC‘. and aii of them have been sentenced to undergo imprisonment. for h'fe and to pay a fine of Rs. 1UU/ -, in defauit of payment of fine, to further undergo Rd. for one month. 2. Case of the prosecution, in brief, is that the younger brother of the compiainant Shivprasad nameiy Chhoteiai was arguing with Ghasirain on431-3-2001 at about 8 p.111. near his house. The co’r‘nplainant Was sitting on the bank of Dani Taiab. Hearing the dispute, compiainant came to the place of incident. Kushal, Raju Tiwan and Shiv Kumar Yadav aiso came there. They intervened and took Chhoteial near the house of Sonau, however appeiiant Laxmi Yadav reached there and asked Chhoteiai as to What he knows about the mother of Ghasiram and thereafter he dragged \ § 1. Ghasiram, aged about 53 yeaIS, Sio ‘ Gw'nu Yadav ‘ 2. Laxmi Prasad, aged aboui 46 3 S/ 0 Mah'k Ram 3. Dav Narayam, agsd about 36 I S! o Mamz Rm A11 ale' residents of Gallgajai, Police Station Shevn‘nexayan, Dishict ‘ ‘* *- ChampaiCG) _7 VERSIJS REsPGKDEET State of Chhattisgérh through ‘ District Magistrate, Distt. ‘ ‘ Champa(CG) N) Chhotdai towanis th€ hous€ of Ghasiram Where DEVnamyan and Ghasiram wers present. Ghasiram started beating Chhoteiai with flsts. He caught his waist and Devnaravan and Laxminarayan together sn‘anguiatedv him with the 1161p of Gamchha ana‘ murdered him and went to their respéctive houst‘s. \ 3. § Shiv Prasad (KW. 5) lodged report of EX. P-4 on 1—4-2001. Merg intimation of Ex. P—S was also registered on his information. inquest over the dead body of Chhoteiai was prepared Vide EX. P-‘2. The: ébndy was sent for autopsy to Government Hospital, Shivrinaravan where Dr. N. Prasad (PW. 10} conducted post mortem and gave his report of EX. P—S. Sealed packet containing wearing‘ appareis ‘of the deceased were taken into possession vide EX. 1-'-;5. e 4. After compieting investigation, charge sheet was flied in the. Court of Judiciai Magistrate First Ciass, Janjgir Champa who in “cunt committed the case to the Court of Sessions Judge, Bilaspur and the same was received on transfer for trial by the 1earned Additionai Sessions Judge. 5. During trial, prosecution examined 1'2 Witnesses in all. . Thereafter statements of accused persons were recorded in which they denied the evidence appearing against them in the prosecution case. Appellants pleaded that Chhotelal came hurling abuses and they stopped him as women folk were also present there, however he did not stop. The persons gathered there tried to pacify and take him to his house, however he returned from the house of Sonau hurling abuses. On their (accused) request, villagers took the deceased towards his house. They are innocent and thev have been falsely implicated. The appellants also examined Sharad Tiwari as UW l. C) 6. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in para l of the judgment. eh @ '/. Learned counsei for 15116 appeilants contended that tha finding of 1116 trial Court .is that the appeilauts in furtherance of their common intention to commit murder of Chhotelai tied the neck and pressed theVchest of Chhoteial and caused his death. Referring to cross-examination of Dr. N. Prasad (PW. 10), it was argiied that this Witness has categoricaiiy stated that he did not find any mark of injury caused by fist on his chest and he. did not dieibecause of the assault on ‘his chest by fists. Width of the iigatme mark has not been mentioned in the post mottem report. This Witness has agreed with the opinion of Modi and Cox that if the ligature mark is ante mortem then epidermis under the ligature mark wouid he damaged, however appearance of ligature mark is not parchment—like. There was no formation of hard strata of tissue liquid which is necessary where ligature mark is ante moitem as the tissue liquid oozing from the ligature mark makes hard strata after drying over ligature mark. Petechial haemorrhage on both the corners of ligature mark is absent, presence of which is decisive that the ligature mark was ante mortem. Petechiai haemorrhage and congestion was absent in the ligature mark. There was no abrasion ecchymosis over the neck and, therefore, in the absence of the above symptoms, the ligature mark present over the neck of the deceased was not ante mortem. When neck is pressed by anything, then it is necessary that clotting or d1spers1on of blood must be present around trachea laiynx. There was no fracture of hyoidbone or thyroid cartilage. He did not find any mark of strangulation on internal examination of neck. And thus he has opined that the cause of death was not due to strangulation bv Gainchha as he did not find any haemorrhage in the thoracic inlet. He has further stated that if the deceased collided with any heavy stone or smooth log from chest side, even then the death 1s possible, however, the trial Court has rejected the opinion of the Jdoctor given in the cross—examination with an observation that at one place he opined that the cause of death of the deceased is pressure over the neck and chest because of asphyxia which is possible by strangulation with Gamchha and in the cross» examination, he has opined that it is not possible. Relying upon £ ta. the v€1sion of PW. 5 Shiv Frasad, it has been heic‘i that Ghasiram caught the demased by his waist and appciiants Laxmi and Bevnarayan prassed the neck of The deceased with Gamchha and he died due to pressure over the neck and chest. Conviction of the appéiiants is based on solitary testimony of Shiv Prasad, reai brother of the deceased. He is a chance witness as he. himself has admitted that at the time of incident, he was sitting near the bank of Darn Taiab and reached oniy after hearing commotion. There is s f ample evidence avajiable on record that the deceased Chhoteiai was in an agitated mood, he was hurling abuses. He was abusing appellant Ghasiram in the name of his mother. The villagers present there stopfied him from hurling abuses. They tried to take him'away from the place of incident, however the deceased again retuined from the house of Sonau and started hurling abuses in front of the house of Ghasiram. Considering the van’ance in the statement of Shiv Prasad and other independent witnesses namely Rajeev Tiwari (HM/1 4), Kushal (PW. 6), Dhansai (RW. 9'}. Ram Kumar (RW. ll) and even Shiv Kumar, brother of the deceased (RW. ‘7), the trial Court ought not have to acted upon the solitary testimony of Shiv Prasad (PW. 5). Case of the prosecution is that the deceased was observing fast as it was Navratri days at the time of incident. He had not broken fast, however undigested food has been found in his stomach and the doctor has opined that he died Within 2 hours of taking meal, which establishes that the incident did not occur at 8 p.m. as alleged by the prosecution and the prosecution has deliberately suppressed the actual time of incident. Lastly it was argued that from the evidence available on record, it is clear that the deceased was hurling abuses in front of house of Ghasiram in presence of women folk. The appellants had requested the deceased to leave the place, however the deceased returned hack in agitated condition and started hurling abuses and as such, he was aggressor. The appellants were unarmed and the allegation is that they strangulated him with the help of Gamchha, therefore takmg into consideration the totality of the circumstances, offence, if any, committed by the appellants was committed without any premeditation due to sudden provocation )w. .7\7\‘ i in the spur of moment, therafom, intanfion to caus€ death of the {teceasati cannot be attributed to the appellants and their conviction under Section 302 of LPG, cannot be sustained. 8. On the other hanc‘t, iearnec‘l counsel for the State supported thje impugned judgment. 9.; We have heard leamed‘counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. 10. The first question to he considered for the purpose of this appeal is Whether the deceased died due to asphyxia as a result of strangulation with the help of Gamchha '? 1:1. We have already leproduced the cross—examination of Dr. N. Prasad (PW. 10) hereinabove. The symptoms observed by the doctor in post mortem report are as under:— Extemal examination: The dead bodywas lying supine position on the ground. Wearing while Dhoti, blue colour yellow' lining Chaddi, Chocolati colour shirt, green colour saphi around the neck, not situated in left side of the neck. Ligamre mark around the neck. Neck was tied on two rounds. Length of first round was ‘34 cm whereas length of second round was 3S cm. Bloody froth was coming out from nose and mouth. Tounge was in between the teeth. Eyes were closed. Skin of face was cyanosed, nails were cyanosed. No external injury was visible. On internal examination, he found redness in larynx and trachea. Pleura, ribs, both the chambers of heart, pericardium{ perion were all congested. Right chamber of the heart was fullof blood whereas left chamber was empty. Eye membrane, food pipe and esophagus were also congested. There was undigested food present in the stomach. Spleen, Pleura, kidney were congested, urine bladder was empty. He has further opined - that the cause of death was asphyxia due to pressure on neck and ighest and the death was homicidal in nature. ,mx I 0‘ @ 1‘2. According to Modi’S Medical Jurisprudence and Toxicologv, TWenty Second Edition (Page 263) svmptoms commoniv found in the cases of death due to strangulation where windpipe is not completely closeu, the face becomes cyanosed, bieeding occurs from the mouth, nostrils and ears, the hands clenched and cbnvulgions precede delayed death. Ligature mark is a well defined and slightly deplessed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontallv and *bompletely. The marks are multiple if the ligature is twisted several times round the neck. Also more than one iirm knot of the ligatufe is certain of homicide. The mark may be oblique as in hanging, if the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the Victim was sitting and the assailant applied a ligature on the neck While standing behind him, thus using the force backward and upward. The base of the mark, which is known as a groove or furrow, is usually pale with reddish and ecchymosed margin. lt becomes dry, hard and parchment—like, several hours after death, if the skin has been excoriated. The pattern of the ligature mark may also be seen. Verv often, there are abrasions and ecchymoses in the skin adjacent to the marks. ln some cases, the mark in the neck may not be present at all, or may be veiy slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. l internal aggearance- There is extravasations of blood into the sub-cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. Sometimes, there is laceration of the sheath of the carotid arteiies, as also their internal coats with effusion of blood : into their walls. The cornua of the hyoid bone mav be fractured also the superior cornua of thyroid cartilage but fracture of the cerv1cal vertebrae is extremely rare. These should be carefully dissected in situ as they are difficult to distinguish from dissection artifacts in the neck. The larynx and trachea are congested and contains frothy mucus. The cartilages of the larynx or the rings of l i i i i the trachaa may be fractured, when considerabia force is used. it shouid be noted 116m that the hyoid bone anc‘l superior comua€ of ‘the thvroid carti‘lags am not, as a 1111a, / fractured by any other means other than by stranguiation, aithough the iarynx and tho trachcfa may, 1'11 rare cases, be fractured by a fall The lungs are usuaity markediy congested, showing haemorrhagic patches and patechiae and exutiing dark fluid biood on section. They may show emphjvsematous buliae on their sur'face due to over distention and rupture of the interalveoiar septa. The bronchiai tubes usualiy contairi‘sfji‘othv, bioodstained mucus. The right side of the heart is fuii of dark fluid blood, and the left empty. The right ventricle is found contracted and empty like the left, if the heart had continued to beat after the stoppage of respiration Sometimes, both the cavities are found full, if the heart stopped during diastole. The abdominal organs are darkly congested. The brain is also congested and shows petechial haemorrhages. i3. lf we consider the svmptoms observed by the. doctor in his post mortem report, in the light of the symptoms referred above, we are of the opinion that the symptoms present in the present case leaves no room to have any doubt about the cause of death that the death was due to asphyxia as a result of strangulation. Apart from this, there is oral evidence available on record that Chhotelal was strangulated with the help of Gamchha and, therefore, in our considered opinion, the finding of the trial Court that the deceased died because of asphyxia as a result or pnessure over the neck and chest is according to the evidence available on record and the contrary opinion given by the doctor in the cross— examination based on certain absence of symptoms which are clearly seen in the strangulation death case, does not vitiate the finding of the trial Court in this regard. 3;.) l4. Raieev Trwarl (RW. 4) has deposed that when he reached near the house of Ghasiram, Chhotelal was in agitated mood. l-le was threatening Ghasiram. Kusal and Shiv Kumar were already there. Shiv Prasad came later. They all persuaded Chhotelal and wght him near the house of Sonau. A crowed had gathered ‘ @ thaw. There was verbal aitencation between Laxmi Prasad and Chhotelal about th€ motha of Ghasiram and both Laxmi Prasaé and Chhoteiai W6nt towards the house of Ghasiram in agitated conciit'ion. 111 T116 cross—Examination, he has admitted that Chhpteial was hurh'ng flithy abuSes at Ghasiram before the house of Ram Kunwar @ Purgahin whereas Ghasiram was requesting Kushal and Shiv Kumar wifu folded hands to take Chhoteiai to home. Laxmi was also requesting, Chhotelai not to abuse and return home. He has further stated that Chhoteiai agaih returned from near the house of Sonau in agitated mood, at that time 4O to 50 persons ‘hadLgathered near the house Chhotelai and some of them were trying to pacify Chhoteial He has denied that Shiv z a _ . . a .. . _ .— Prasad was not present on the spot and he has turtner stated that he iearnt iater on that Ghasiram etc. have murdered Chhot’eial 15. Shiv Prasad (RW. 5) is brother of the deceased. He has stated that he reached the piace of incident on hearing about, the commotion of quarrel. At that time, Raju, Kushal and Shiv Kumar were also present and they had taken Chhotelal to the house of Sonau. Laxmi Prasad also came there and abused Chhotelal for speaking against the mother of Ghasiram and caught his hand and dragged him towards the house of Ghasiram. Devnarayan was sitting there. Devnarayan and Laxmi Prasad started assaulting Chhotelal With fists over his chest. At that time, Ghasiram caught his waist and Devnarayan and Laxmi Prasad tied Gamchha around his neck and started pulling as a result he died. After seeing the incident he iled from there. After sometime, he returned with Sarpanch and saw the dead body. Thereafter, they went to lodge the report in the police station with Sarpanch and Sharad Tiwari. ln the Cross-examination, he has denied his statement of EX. ‘P—4 wherein he has stated that Laxmi Prasad dragged him However, ethere is material discrepancy in his version about the way he returned hack towards the house of Ghasiram as is evident in paragraph 5, 6 and '7 of his deposition. l6. PW. 6 Kushal has stated that he was sleeping in his house. He came out from his house after hearing the voice coming from \:) the side of The house of Ghasiram and went there. He saw that Ghasiram and Chhoteial were invoived in verbai altercation, He persuaded Chhoteiai not to engage on quarrei as he is 011 fast and tried to take him, however he refused to accompany. At that fjme. his brothers Shiv Kumar and Shiv Prasad aiso came there and bdm of them foreihiy‘ took him towards the Sonau’s hadi. Chhoteial started thleatem'ng them aiso that he Wm heat them, however he salt near the house of Sonau and refused to return his home. Raju Tiwari also tm'ed to pacify him. At that time, Laxmi Prasad came thefe ‘and there were heated exchange between them on the pretext of mother of Ghasiram. Laxmi went towards the house of Ghasiram and Chhotelal foilowed aiso him. 1‘7. Shiv Kumar (PW. ‘7) is brother of the deceased Chhoteial He is ;aiso witness of the fact that Chhoteial was shouting near the house of Ghasiram and he was quarreiing with Ghasiram. Kusai, Dhansai and Raju were nying to pacify Chhoteiai, however Chhoteiai continued shouting at Ghasiram bv taking the name of his mother. They asked him not to shout like this and took him near the house of Sonau where Laxmi also came and he chailenged Chhoteial to prove what he is saying, to which Chhotelai letahated that he shall prove it number of times and theleafter he 1eft the place. 18. P.W.9 Dhansai has also stated in similar line. This witness has aiso stated that Laxmi asked Chhoteiai as to what he knows about the mother of Ghasiram and took him towards his house. He himseif and Shiv Prasad and chiidren foiiowed him, however on being asked by Kushal, he returned and sat near the house of Sonau. \ ta. 1‘9. RW.‘ 11 Ram Kunwar has stated. that at the time of incident she was standing before the house of Ghasiram. Ghasiram was steeping in his home. At that time, Chhoteial came there hurhng abuses. Ghasiram stopped him from doing so, however Chhotelai engaged with him in verbal duel and the dispute "between them escalated. Kushal came there and he took Chhotelal towards lane. 6 ,_. C '20. Thus from th€ analysis of th€ €vic‘tance of the above. witneSSSS, ' it is cisar that them was some quarmi bstvmen Ghasiram and Chhoteiai as Chhotdal was huriing abuses at Ghasiram in ths name of his mother whsrcas he was stoppod by other vi‘liagsrs includmg Raju Tiwari, Shiv Prasad, Shiv Kumar and i Kushal They trisd to pacify Chhoteial aIKi they took him near the house of Sonau, however Laxmi Prasad came there and They again engaged in verbai duei. Except Shiv Prasad, a11 the other witnesses have stated that the deceased Chhoteiai returneii to the piace of ‘Qncidelit behind Laxmi Yadav and thereafter according to the version o£ the Shiv Prasad, Devnarayankahd Laxmi stranguiated him Wi‘fh the help of Gamchha whereas the appeilants Ghasiram £ u was holc‘lilig his waist. Except Shiv Prasad, no other Witnesses have made specific ahegat'ion of stranguiation against accused“ Devnarayah and Laxmi, however there is evidence availabie on recorii that ah the three accused persons wen: invoived in physical scuffle with the deceased just before he died. Thus from the evidence of the other witnesses, the piesence of Shiv Prasad on the piace of incident is established. it is also estabiished that the deceased and the appeilants were invoived in the struggle and soon thereafter the appellants strangulated Chhotelal hy pressing the neck with the help of Gamchha and therefore, we are of the considered opinion that the finding of the trial Court that the involvement of the appellants in the crime in question is established cannot he faulted ‘ ’21. However, taking into consideration the overall evidence avaiiable on record, the fact that the deceased Chhotelal continued hurling filthy abuses at Ghasirani near his house even after being stopped by his own brothers and other villagers, we are of the considered opinion that there is total absence of premeditation on the part the accused persons of committing the offence. The incident occurred due to sudden provocation of the deceased himself who hurled abuses at Ghasiram in the name of his mother on the spur of moment without any premeditation and therefore: the intention of causing death of Chhotelal cannot be @ attributed to the appeiiants though the knowladge that their act mav cauS€ dgath of Chhotsial cw be inferred. 2'2. in the msult, conviction of the appellants Dev Narayan and Laxmi Prasac‘t under Section 302 of LPG. and conviction of aopeiiani Ghasiram under Section 302 read with Section ’34 of LPG. and the sentence imposed under those sections are set aside and instead, appellants Dev Narayan and Laxmi Prasad are convicted under Section 305' Part i of LPG. and appeilant Ghasiram is convicted under Section 304 Part i read with Section 34 EELPC. andxeach of the appel‘lants is sentenced to undergo R1. for ‘7 years with fine of Rs. 100/ -, in default of payment of fine, to fulther undergo_R.i.'for one month. t Sd/- nmnENDRA MISHRA Judge ‘ Sd/- T.P. Sharma Judge