.f^- HIGH COURT OF CHHATTISGARH AT BILASPUR (Divislon Bench) CORAM : Hon^ble Shri Vijay Kiunar Shrivastava, Hon'ble Shri Dhirendra Mishra, JJ. Criminal ApDeal No.3033/1999 Appellaiit Raui, s/o. Lakhna, r/o. vQlage Obad, PS: Balrampur, Dist. Sarguja, C.G. Versus Respondeiit State of Chhattisgarh \-"-. /,• JUDGMENT FOR CONSIDBRATION (\ ^L^<- d j HON»BLESHRI JUSTICE DHIRENDRA MISHRA l Sd/- <rf v t»^IS 3/4/2006 Sd/- Dhirendra Mishra Judge POST FOR (^/4/2006 Sd/- V.K. Shrivatava Judge k •W:WSKS:V£ •d HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bencht CORAM : Hon^ble SIui Vijay Kumar Shrivastava, & Hon?ble Shri Dhirendra Mishra, JJ. C^imiaal Appeal No.3033/1999 Appellant Ram, s/o. Lakhna, r/o. vfflage Obad, PS: Balrampur, Dist. Sarguja, C.G. Versus Respondeat State of Chhattisgarh / Present: Ms. Shanmla Suighai, leamed counsel for fhe appellant. Mr. Akhil IS/Iishra, Paael Lawyer for fhe State. JUDGMBNT (DeMvered on \*S /04/2006) Per VMav Kumar Shrivastava. J. This appeal under Sectlon 374(2) of the Code of Criiniaal Procedure is directed agauist the judgraent of conviction •V and order of sentence dated 30/09/1999 passed by Sessions Judge, Sai^uja, in Sessions Trial No. 273/98, whereby learaed Sessions Judge, after holdiag fhe appeUant guilty for coianiitting ofFence punishable under Section 302 offhe IPC, sentenced him. to undergo uiiprisoniaent for Ufe aad to pay fine of Rs.1,000/- -2- (Rupees one thousaad), ia default of payment of fiiie to further nndergo R.I. for six inonths. 2) Briefly stated the prosecution case is fhat on 28/071998 at about 9.30 p.ni., appeUaat accoxnpaaied with his wtfe came to the house of Charku aad asked him to give Uquor. At the same time, deceased Bhakal who is younger brofher of Charku came fhere. Charku gave fhein a bottle of Uquor, AppeUaat, his wife aiid Bhakal consunied the Uquor. Thereafter, appeUaat started uttering obscene words who was stopped by Cherku and deceased Bhakal. Bzit, appeUaat did not stop uttering obscene words, therefore, Charku slapped him aad deceased also assaulted him with a wooden stick. AppeUant went to his hoiise wherefroia he carae back wifh aa axe. Deceased Bhakal was standing ia fhe courtyard. AppeUaat gave a heavy blow by the axe on fhe nepk of deceased Bhakal who received grave uijuiy aad succuinbed to it on fhe spot k 3) Charku on fhe same rdght went to fhe PoUce Station, Balranipur where he reported fhe inatter. On his report nierg uitiination aad first informLation wer^ recorded aad iavestigation took place. Investigatiag Officer Arviad Tiwari conducted fhe iaquest of fhe deceased aiid sent fhe dead body for post raorteui. Dr. N.K. Dutta, conducted fhe autopsy on fhebody of deceased Bhakal who describiag exteraal aad iatenial injuries found on the dead body ia his postmortein report, opiaed that ftie death was eaused by shock due to cuttiag ofmam vessels of neck as a result ofblow on fhe right side of neck. Deafh was hoyicidal ia nature. -3- ^- t Investigatmg Officer has also prepared fhe spot raap, collected control earth aad blood staiaed earfh, He also took fhe appeUaat into custody aad on his discoveiy nieiULoraiiduin, recovered aa axe aad clofhes fhat were woni by hita at the time of fhe incident. AppeUant was also exaiained by Dr. S.P. Bias, who found fhree super&cial iajunes; one abrasion over fhe right shoulder, one abrasion over forehead aad one contusion over left upper arm. Statenients of witaesses under Section 161 of fhe Cr,P.C., were recorded and fhe seized articles were sent to Forensic Science Laboratory. On examiiaation, cheinical examiaer found presence of blood iii blood stained earth, appellaat's clothes, axe aad undenvear of fhe deceased. After conipletion of fhe investigation, chaUaa under Section 302 of the I.P.C., was led ui the Court of Judicial Magistrate, First Class, Raraanujgaaj, who coramitted fhe case to fhe Court of Sessions for trial. 3) Charge under Section 302 of the IPC was frained agaiast fhe appeUaat and the same was read over aad explained to hini who abjured the guUt aad pleaded fhat he is innocent aad has been falsely inipUcated ia fhe case. Leanied tnal Court, after close scrutmy of fhe evidence held deafh of deceased horaicidal ia nature aad also held the appeUaat guUty for committing offence punishable under Sections 302 of fhe IPC aad fherefore, convicted aad sentenced. 4} Deafh of deceased Bhakal is caused as a result of iajury over his neck aad his death was honiicidal ia nature, has not been disputed by fhe appeUaiit. Even ofher^ise, frora. the ^....—^-7-^^^ ^ evidence of Dr. N.K. Dutta (PW/4) aad autopsy report (Ex.P/5), it has been estabUshed fhat fhe foUowiag iajuries were found on the body of deceased Bhakal who died as a result of shock due to cuttiag of niaiti vessels of neck iacluding Carotid on ri^ht side as a result of blow of sharp object on right side of his neck and the death was honiicidal ia natuire. <fExtemal iryuries: Incised wound over iheright side ofihe neck above to clavicle, size 3y x 2aft & 2" deep cutting jncdn vessels of right side of neck. Blood clots present Injuries are ante-mjortem in nature. Intemal injuries: Cutting caroiid artery and vein and soine part of Trajchea on right side ofneck. 9 5) Charku (PW/1) and Mst. Sampumi Bai (PW/2) are fh.e eye-witoaesses. Both ofthemi have deposed ia fheir statements fhat the appeUant aad his wife caiae and on being asked for liquor one bottle of Uquor was provided to fhein. AppeUaat, his wife aad deceased Bhakal consumLed fhe Uquor aad fhereafter appeUaiit started quarrelmg aad uftfceriag obscene words. Charku slapped hmi aad deceased also assaulted him wifh a stick. AppeUaat went to his house aad came canyiag aa axe wifh hiai and by forceful blow wielded iajuiy over the neck of deceased Bhakal. The axe was pierced ia fhe neck of the deceased. AppUcant removed fhe axe frora fhe neck and fled away along wifh the axe froai fhe scene of occurrence. Bhalcal as a result of injtuy spontaaeously succunibed to it. Oral evidence of Charku (PW/1) aad Mst.. Sainpzirai Bai (PW/2) is corroborated by the first uifonnation report (Ex.P/1) duly proved by the witoaess Charku (PW/l)aad fe.:^ Arabind Tiwad, Investigating Officer (PW/5). The report has been lodged soon after fhe mcident. Oral evidence is also supported by fhe raedical evidence of Dr. N.K. Dutta aad ofher evidence. \ t- -< 6) Ex.P/14 is a memoraiidum statement of the appeUaat. Ex.P/15 is a seizure inenio vide which one Gamcha, one Banian and axe have been recovered at fhe ia.stan.ee of fhe appeUant. Botiht fhese docuiaents have been proved by Arviad Tiwari, Investigatmg Officer (PW/5). From fhe evidence ofDr. N.K. Dutta (PW/4), it has also been estabUshed fhat the seized axe was sent for examiaation, who after examination, opiaed that fhe iajuries found on fhe body of fhe deceased could have been caused by such weapon. FroiEL the evidence of Arviad Tiwari (PW/5), it has also been estabUshed fh.at all fhe articles recovered and seized were sent for cheniical exaaiination vide Ex.P/19. Ex.P/20 is fhe report received froni the Cheniical exarainer. Froia fhe report of cheraical examuier, it is evideut fhat fhe axe, towel aad baaiaa recovered froni the appeUaat on his discoveiy statenient were blood stamed. 7) Oral evidence of Charku (PW/1) aad Mst Sampurai Bai (PW/2) does not sujffer froni aiiy iafinaity. Therefore, fheir statenient duly supported by first iaformation report, raedical evidence aad fhe cu'cuinstaaces ofpresertce ofblood ia fhe clofhes of fhe appeUaat seized from. hiin aad over axe is coinpletely reliable, which proved fhat fhe iajuiy over the neck of fhe deceased Bhakal has been caused by fhe appeUant which resulted the death of deceased, @> ^r 8) Learaed counsel for fhe appeUaat relyiag on fhe judgiaents rendered by Honl^le the Apex Court ia Dcxttu Shcurmrcwnt Valeike and anather Vs. Stafe a/ Meiheirashtra^ reported in AIR 200S SC 2331, Manke Retm Vs. Stwte of Baryandf reported in AIR 2003 SC 4147, Bhera Vs. State of Rafasthan^ reported (2000) 10 SCC 2S2S and Kunhayippu Vs. State ofKerale^ reported in (2000) 10 SCC 307, contented that only one iajuiy has been caused by fhe appeUaat who as a result of grave aad sudden provocation ia a spur of inonient caused it. Therefore, his case falls within Section 304 Part II ofthe I.P.C. Per contra, leanied Paael Lawyer for fh.e State opposed fhe saaie contendiag that appeUant canymig deadly weapon axe canie froin his own house aad by takiag fhe handle of fhe axe by both haads gave a heavy blow on the neck offhe deceased as a result ofwhich deceased received fatal injuiy over his neck aad spontaaeously died. Therefore, leamed Court below properly appreciated fhe evidence aad held the appeUaat to be guUty for iatentionaUy causuig fhe death of Bhakal. 9) AU the aforesaid judgnients reUed iipon by couiisel for the appeUant are distuiguishable on facts of fhe present case. Here ia fhe iastant case, it is crystal clear fhat fhe appellant, his wife aad deceased Bhakal aU consiuned Uquor and ftiereafter appeUant started abusiag aad uttering filthy words fh.at was opposed by Charku (PW./l) despite that appeUaat contmued abusuig, therefore, Charku (PW/1) slapped him. Deceased Bhakal dunng iatervention assaulted the appeUaat wifh a stick. Froin there appellant went to his house aad cameback to fhe house of Charku carryiag deadly weapon axe ia his haad. Deceased was -^ staadiag ia fhe courtyard. AppeUaat gave severe blow witih. sharp edged deadly weapon axe by force on his aeck. The sharp portion of fhe axe was pierced ui his neck which cut thyroid carotid aad Hiain vessels of neck. AppeUant not only left fhe axe ia his neck, biit renxoved it and talciag tihe axe fled away froni fhe spot. Deceased iastaD.tiy succunibed to uijuries. r' 10) Hon^ble fhe Supreine Court rendermg judgnient ia Stdte of Kafcisthetn Vs. Dhool Singh^ reported in 2004 ASR. SCW 24 has observed at para 13 which reads as below. ((13. The number ofinjuries is irrelevant It is not always ihe detennining fcuctor in ascertaining ihe intention. It is the nature of inyury, the part of body where it is caused, the weapon used in caitsing such iryury which are the indicators of the fact whether the respondent cazised the death ofthe deceased within an intention of causing death or not In the instant case ii is true that the respondeni had deali one single bloiv with a sword which is a sharp-edged weapon measuring about 3 /(- in length on a vital part of body namely the neck, This act of the respondent though solitary in nwnber had severed stemoclinoid muscle^ exlemal jugular vein^ iniernal jugulw vein and common carotid artery completely leading to almost instantaneous deaih. Any recisonable person wiih any streich of imaginatwn can come to the condusion that such iryury on such a viial part of the body with a sharp-edge weapon would cause death. Such an injury in our opinion not only exhibits the inteniion of the attacker in -8- causing the deaih of ihe victim but also the knowledge ofthe attacker as io the likely consequence of such attack which could be none oiher than cazising the death of the victim. 11) Iu flie iastaat case also fhe facts are sioiUar. Therefore, it can safely be iaferrcd fhat fhe appeUant with iatent to cause deafh of fhe decease, attacked with aa axe, iaflicted a severe heavy blow on his neck to cause his deafh. Not only intention but also knowledge of fhe appeUant was there as to fhe consequence of such attack which could be none ofher thao. causiag fhe deafh of the deceased Bhakal was also crystal clear. Appellaat who afiter consuniuig liquor started abusing and uttermg filthy words was stopped by Charkii aad when tihe appeUaat did not control hunself, he was slapped by Charku and also assaulted by deceased with a stick. AppeUaat received veiy iniaor superiicial uijiiry aad went to his house from where he canymg an axe cauie to fhe house of Charku aad seeuig Bhakal staiiding ui fhe Courtyard, assaulted wifh the axe on his neck. The blow was so severe fhat deceased uistaataneously succunibed to iajuiy on the spot. It is evident that fhe appeUaaf did not attack fhe deceased as a result of grave and sudden provocation aad ia a spiir of lULonient, but it was premeditated and plaaned. Even otherreise, fhe appeUaat takiag zindue advantage acted in. a cruel aad unusual nianner. -9- x^ -^^' \:: 12) Froin fhe aforesaid facts circumstaa.ce aad fhe evidence, we are of the considered opiaion fhat fhe death caused by the appeUaat does not faU ui fhe category of oflTence of honiicidal deafh not amountmg to raurder. Leanied tdal Court after close scrutmy of fhe evidence correctly held fhe appeUaat guUty for intentionally caiising the deafh of Bhakal punishable under Section 302 of the IPC. The jiidgmLent of conviction and order of senteuce passed by the Sessions Court does not sxiffer froni aay illegality or uifirmily, fherefore, fhe same is liable to be confirmed. 13) Before partmg with fhe case, we would Kke to niention fhat whenever seized articles are sent to FSL for clienucal exaaiiaation aad are received along wifh fhe report and produced ia the Court, fhe appropriate procedure for adinission of fhe report which has been prescribed under Rule 207 of tiie Rules aiid Orders (criiaiaal) aiid Section 293 offhe Cr.P.C., should iavariably be foUowed iastead of gettuig fhe report of cheinical examiner exhibited by fhe evidence of Investigating Officer. Without proper adniission of fhe docunxeut, its use to corroborate, fhe prosecutiou stoiy if objected by accused m-ay impair fhe story. Agaiii, it has been noticed that to explain fhe circunistaaces brought agaiast the accused by report of Chemical Examiaer and Serologist proper opportunities are not afforded to fhe accused aad the reports are used again.st fhe accused. Such practice is neifher proper nor legal. J-^ 14) This fact should be brought to fhe notice of Sessions Judges and otiier Criniinal Courts. Registrar General, High Court to take steps for the same wifh approval of Hon'ble the Chief Justice ofthis High Court. 15) In fhe result, the appeal fails and is dismissed. Sd/- V.K. Shrivatava Judge 1S/ 04/2006 Sd/- Dhirendra Mishra Judge /^7 04/200S raju