HIGH COURT OF JU&ICATURE AT SILASPUR. CHHATTIS6ARH S/o Bhogotr'am Kewat Aged about 28 year-s, R/o Villcge; Bhitoni, Poiice Station: Malkharoda, Distt.; Bilaspur (C.6.) - Versus State of AA.P. (now Chhattisgar-h) JUDGMENT FOR CONSIDERATION Sd/- L.C.BHADOO Judge q;^.200 HONBLE THE CHIEF JUSTICE ^ ^-^7^<" Sd/- Chief Justice POST FOR JUDGMENT ON4^,AUGUST,2003^ Sd/- J U D GE /(t^^.2003 ••s--i;l'.l..a^u.;i.li.. n HI6H COURT OF JU&ICATURE AT BILASPUR K.6.) ,*. and Honble Shri L.C. Bhadoo. J. Criminat Appeal Ne.329 of 1992 $anpat Ram S/o Bhcga+rom Keraat Aged about 28 yeors, R/o Vlllege; Bhitoni, lice Station; AAQlkharoda, Distt.; Bilospur (C.&.) -Versus - Sterfe of M.P. (now Chhottisgarh} Shri Abhay Tiwari, Advocate; Miss Sharmiia Singhai, DeputyS. A; For the appellant For the Stste / re JUD& (Deiivered w\lgM^ August, 20035 Jhe followina .iudament of the Court wgs_de!ivered_ b^_>Zu?ftce L.C.Bhadgff. - 1. Accused ©anpOTram has preferred this crimina! cppeal under Section 374 (2) of the Cr.P.C., being aggr'leved by the judgment dated 30th January 1992, passed by the 5th Additionol Sessions Judge, Bilaspur. in Sesstons Tria! No.61/89, by which the lear-ned Additional Sessions Judge after holding the accused / appellant guilty of the offenees punishable under Sections 302 and 323 of the I.P.C. sentenced him to undergo imprisonment for life ond to undergo R.I. for six months respectively and directed thot both the sentences wou!d run concurrently. 2. The case of the prosecutlon, in brief, is thaton 5-9-88 at about 9 p.m. the aecused / cppeilant came to the house of Budhwara Bai and asked her to exehange her land with his land. But. Budhwora Ba! was not prepared to exchange the land. When she refussd to accede to the request of accused / appeilcnt ffanpatram, he entered into the house of Budhwar'a Boi and started beating he?*, At thot time his brother Bhondu came and tried to intervene. The aecused / appe'Sant started assaulting his brothsr Bhondu smd his wife Shanti Bai with a spade. Dhanai Bai. mother of the accused / oppel'ant a!so carne there and started intervening. The accused / appe!lant assaulted Dhanai Bai on her face with a spade and thereafter after throwing the spcsde he "SBI away. Next doy Shanti Bai and Budhwara bai took Dhanai Bai to the Poiice Station Maikharoda and lodged the report Ex.-P/lO. Tne In-charge Stction House Offieer" B.R. Mandavi sent bhanaS Bai with a requisition Ex.-P/ll for medicai examination to Primary Hea!th Centre, Malkhcroda. He a!so sent Shcnti Bcsi for medical examination. Dr. N.P. Mishra examined bhanal Bai and prepared the injur/ report Ex.-P/li-A. Shantl Bai and Budhwara Bai were also examined md medica! "eports Ex.-P/12-A and Ex.-P/13-A respectively were pr'epared. The S.H.O. a!so sent Bhondu for medicai examination with a letter- Ex.-P/14. Dr". N.P. Mishra a!so examined him and gove his report Ex.-P/14A. br. N.P. Mishrc admitted bhanai Bai in the hospita! on 6-9-88 for tr-eatment. During the treatment in the Primary l-1ealth Centre. Malkharoda on 14-9-88 Dhonal Bai succumbed to the injuries sustoined by her. TherefoF-e, intimation of death (Ex.-P/lS) vuas sent to the P.S. Malkharoda. On receiving this intimation, ths S.H.O. recorded the / ^ M ^ i 3. merg intimation Ex.-P/17. Bed head tickets r^ording treatment of bhanal Bai were seized by the Investigating Officer which are Ex.-P/6-A and Ex.-P/6-B. On 15-9-88. Dr. N.P. Mishra conducted the postmortem on the daad body of deceased Dhanai Bai and prepored postmortem report Ex.-P/19. On 6-9-88, the Imestigoting Officer- took into possession the Sdirl of deceased bhanai Bai under &<.-P/4 and found that it was stuned w'rth blood. The plain soil and blood stained soil were seized from the scene of occurr-ence under Ex.-P/3. The weapon of off-snce l.e. siiade was seized on 7-9-88 under Ex.-P/l. The clothes of bhanai Bai and spade were sent to ttie doctor for -his opinion and the doctor* gave his opinion Ex.-P/15-A. He aiso advised for chemical examlnation of the articles. These ortictes sere aent for the chemical examination and as per the r'eport of the chemical examiner' and the report of serologist hurean blood was found on the sari of the deceased. Patweri Shyamlal prepared thesite map FY t»/\.-P/9. 4. After eompletion of the investigation the charge sheet was filed against the accused / appellant in the Court of Additiona! Chtef Judiclai Magistrate, Bilospur who in turn comfflitted the csse to the Sessions Court at BilaSpur cnd the 5 Additional Sessions Judge, Bilaspur received the file on transfer fi'om the Sessions' Court. The lear-ned Additional Sessions Judge after hesring the Additional Public Prosecutor and the counse! for the accused and after perusal of the records conciuded that there was material on r'ecord to frome charges under Sections 302 and 323 of the I.P.C.^ ;iiT'8 'i?lt*-fc. >s^ ^J. .•>*. agcinst the accused and accordingiy framed the chwges and read over and expiained the same to the accused / appellant who denied the charges and ciaimed to be tried. The prosecution in order to prove the charges (^ainst the accused / appeliant examined in oll 12 witnesses. The stotemerit of the accused / appellant wcs r-ecor-ded under Section 313 of the Cr.P.C. He denied the prosecution evidence and stated that Budhwara Bai, &haneshor'i Bai, Shanti Bai cnd Bhondu a!i had assaulted him for whieh he had also made a report to the poiice. He stirted that he is innocent and he hos been •falsely imp!icated in the crime. The learned Additional Sessions Judge after hear'ing the Additional Public Prosecutor and the counsel for the accused and placlng reliance on the prosecution evidence convicted and sentenced the accused / appellant for the offences under Sections 302 and 323 of the I.P.C. in the aforesaid manner. We hisve heard the leomed counsel for the accused / appellant Mr. Abhay Tiwari ond Deputy ©ovemmentAdvocate for the State Miss Sharmiia Singhai. As far as the nature of -the dsath of &hanai Bai being hsmicida! is concerned, it was not disputed. &r. PW-12 N.P. Mishra has stated that on 6-9-88 he examined the injuries of Dhanai Bai and found that there was one incised wound on the face of Dhanai Bai in the size of 9" x i " x 1/2 " x i " which was oblique in nature and trregulor in shape. This injur^ was up to the upper portion of the nose. The base bone of the nose wos cut and sepu'ated and the nose was hanging. The bone under both the eyelids was cut into, /I: / ! i'.iiSf.it-Bi.unttfiflftftue li!Sii 3 pieces. All the injuries wer"e grievous in nature. The doctor stated that if ony eomplication had not occur-red ihen she could hove become a!right within 30 days. The injury was caused by shcr'p edged weapon and was sufficient to cause death in the ordino"y eourse of nature. He has further stated that on 15-9-88 he conducted the postmortem on the body of deceased Dhanai Bsi and noticed That clotted biood wos present in the puimonary a-tery trunk. Cisrotid artery was fu!! of b!ood. The msmbrone was ruptured and it was dry ond red in coiour. Maxilla bone was frsctured. The upper jaw was moving right and left. The bone of the palcte wos a!so froctured. In the opinion of the doctor, Dhanai iai died on account of the injuries on the face and on account of the clotted blood which was present in the pulmonary trunk. t)ue to clotting of blood, the artery' was blocked, blood wcs a!so biocked and she died because of that. According to the doctor, the death of the deceased was homicidal. In view of the above evidence. it is sstablished that the nature of the death of deceased Dhonai Bai was homicidal. PW-12 br. N.P. Mishra has also stated that he examined the injuries of Bhonduram and prepared the report Ex.- P/14-A. He also examined the injuries on the body of Shanti Bai and prepar-ed the report Ex.-P/12-A. He also examined Budhwara ial who was complaining about pain csnd prepared the report Ex.-P/13-A. Now coming to the question of jnvolvement of the accused / appellant in the commission of the murder of Ohonai Bai and causing simpie iryuries to other persons i.e. Shanti Bai. Bhonduram, ^ and Budhwara Bai is eoncerned. PW-1 Shanti Bai is the eyewitness she has stated thot on the fateful dcsy in the night the accused / appellant come to the house of Budhwara Bai. He calied iudhwara Bai, but Budhwar-a Bai r-eplied that she was not we!l, therefore, whatever he wanted to say. he could speak from there. Accused ©anpatasked Budhwara to excharge her agr'icultural iond with his Isnd which she refused. Her husbsnd B-hondu told ©anpst that he should have come du"ing the day <md could have sorted out the motter. But. the accused / appeilant started beating her husband and thrsw him on the ground. Lalitt'air, ana' Jagatr'am came and saved him. The accused / sppellant a!so assauited her with a spade on her head and assaulted Dhanai Bai with a spade on her' face. Ramta! came and intervened. Blood stiyted oozing out from the injuries of Cihanai Bai. The next dcy Budhwara Bai, &eend!yal and Jagctram took Dhanai Bai to the Police Stistion and lodged the report. The testimony of this a'itness hos been corroborated by her husborid PW-2 snd he hos stated that when Budhwara Bai rsfused to exchonge her land, the accused / qipellant star-ted abusirg her and after" entering the house of Budhwora Bai he started assauiting Budhwara Bai and when he intervened. the accused / appellcnt assaulted him also snd threw him on the ground. His wife Shanti Bai, Budhwcra Bd. Jsgatu ond Lalit carae, intervened, and took awcy the accused / appellunt, but he again came back and picked up the spade which was lying in the eourtyard of the house of Deendayal and assaulted on the head of, lt!'"«it,T Dhanai Boi. When Shanti Bai tried to intervene he ossaulted her also and on account of that the teeth of Shanti Boi was broken. 9. PW-3 Budhwara Bai has also corroborated the testimony of these two wltnesses and said that the accused / appeiiant assoulted Dhanai Bai with a spade. She was admitted to the hospital and ofter 5-6 days, she died in the hospital. PW-8 Shyam Kunwar* has also cor'r'oborated the testimony of these two tvitnesseg and said that the accused / appellant pieked up a spade which was lying in the eour'tyar'd of Cieendaya! ond assaulted Dhanai Bai which hit on Dhanai Bai's nose and head. When Shanti Bal tried to intervene, the accused / appellant also asscultec! he" with the same spade ond thereafter the accused / appellant thrown the spade and rsn away. In the cross-examination of these witnesses the learned counsel for the aecused / appellant has not been able to eiicit anything which makes the evidence of these witnesses unreliable or untrustworthy. The accused / appeliesnt and the witnesses are closeiy related being brothers cnd sisters-in-lQW, therefore, there is no r-eoson why all these witnesses should impiicate the accused / appeliant in a false case. PW-4 Aii Baksh has statsd that the clothes of the accused / 10. appsliant and spade were recover'ed in his presence under Ex.-p/l and Ex.-P/2. The Investigating Officer PW-11 B.R. Mandavi has aiso proved the recovery of ths spade and clothes and these ciothes and spode were sent for" chemica! examination. The report of the serologist Ex.-P/20 reyeais that Sar-i of the deceased wos found stoined with human blood. The spade was also found stained !^;;;r'i:-;' T. l^ 1!. 1 O — t-J with blood but its origin couid not be determined as the bbod was disintegr'ated. Therefor'e, there is ample evidence on the reeord by which it stands proved that the accused / appellant asssulted the deceased bhanai Bai tvith a spade and as per the doctor's evidence the injury was sufficlent 'm the ordinary course of nature to couse deoth. Therefore, the finding of the ieerned trial Cour't regarding the involvement of the accused / appellant in causing the death of the deceased and eausing sirepie Injuries to Budhivara Bai, Shanti iai and Bhondu is based on lega! evidence and we do not find any ill®9s!ityor Infirmity in the finding of the tria! Court. As for as the conv-iction of the accused / oppeliant under Seetion 302 of the I.P.C. is concerned, the iearned counsei for the accused / appellant submitted that the deceosed accused / appellant who is the son of the arose on account of refusal by Budhwara Boi to exchange her land cbsely related to the deceased and the dispute with the land of the accused / appellant. When Budhwen'a Boi and others stQrted intervening and Ohanai Bai aiso intervsned a!l of a sudden the accused / appellant picked up the spode which was lying in the cour'tyard of Deendayai and assaulted &hanoi Bai. Tnerefore, there was no intention to kil! his own mother and the offence only under* Section 304 Part-II of the I.P.C. is mode out. We have gone through the evidence and record of the case. The wgument of the learned counse! for the aceused / appeilant is not without fo"ce. Zt is true thot the accused on the foteful day ciime and asked Budhwara Bai to exehange her !and with his land which she refused, on which the accused / appellcant started assaulting q -<. 1 ^ iudhwara Bai and when Bhondu and hls wife Shanti Bai tried to intervene then the.accused / appellcnt also assoulted thera and he left the scene. Thereafter he agcin eiar.e back. When Dhanoi Bai started intervening, a!l of a sudden the accused / appelicnt picked up the spade which was lying in the courtyard of Deendayis! and cssauited Ohanoi Bai with a spade. It shows that the accused / appellant assaulted Dhanai Bai without ony preplan or premeditation ond in the facts and cir-cumst&ices of the ease it cannot be inferred that the appellant had any intention to murder Dhanai Bai because he picked up the spade alt of a suddsn and assaulted bhanai Bai, therefore. it cannot be inferred that with the intention to murder Dhcinai Bai the occused / appe!!ant assaulted her or he caused such iryury with the intention to commit her mur'de". Ev'en other wise. DhQnai Bai died after 9 days in the hospttal and Dr. PW-12 N.P. Mishra has stated that in ths ordinary' course if the proper treatment wcs given to bhond Boi she couid hws become olright within 30 days. He has further stated thot bhanai Bai died on account of clotted blood stuck in the pulmonar'y trunk and on account of that the flow of the blood stopped and Ae died. Therefore, injuries were not the direct cause of death. In view of the above facts, it eannot be inferred that the accused / Qppellant ccused the injury with the intention to rr,u"der Dhanai iai. But, It can safety be inferred that while causing the asscult on the head of Dhanai Bai with a spade the aceused / appellant had definitely knowledge that by causing injury with a spade he m<y ^ cause the death of Dhanai Bai, therefore, the offencs under Section 304(11) is made out. 14 . In the resuit, the appeai of the appellcnt partly succeeds. His comiction under Seetion 302 of the I.P.C. is set-aside and in its place he is convicted under Section 304CEI) of the I.P.C. and sentenced to undergo impr'isonment for 10 years. His conviction and sentence under* Seetion 323 of the I.P.C. ore maintained. The accused / appellant is in custody since 1988 said thereby he has served almost 15 years of jai! sentence and he has dready undergone the sentence aworded to hlm, therefore, if the aecused / appellant is not required in any other case, then he be set at Sd/- Qiief Justice fy-—— -- Sd/- L.C.BHADOO Judge fS -08-2003 iarve' KA-