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2001 DIGILAW 107 (CHH)

Gopi Alias Gopal v. State Of Chhattisgarh

2001-11-05

FAKHRUDDIN, W.A.SHISHAK

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JUDGMENT Fakhruddin, J. 1. The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life coupled with a fine of Rs. 2000/-. 2. According to the prosecution the incident occurred on 17-9-99 at about 5.00 p.m. It is alleged that Pohduram was assaulted by means of lathi/danda by the accused Gopi @ Gopal on his head. He was taken to the hospital at about 7.15 p.m. where he was examined by the doctor. The deceased died after five days on 23- 9-99. The post mortem was conducted by Dr. R.K. Singh (P.W. 8). The post mortem report is Ex. P/13. The report of the incident was lodged as per Ex. P/7 for the offence punishable under Sections 323, 341, 506 and 294 I.P.C. The injured succumbed to death and the post mortem was conducted vide Annexure P/11. The report is as under : "Head injury on left side peritotemporal lobe in oblique direction size 6 Cm X 2 Cm X 2 Cm bleeding comes. When open the skull internal Haemetoma Size 4 inch X 4 inch present slightly internal bleeding comes by some hard and blunt object, duration about 96 hours." 3. The post mortem report (Ex - P/11) and the Panchanama (Ex - P/2) go to show that the accused had inflicted danda blow on the head of the deceased. The injured died on 23-09-1999 therefore the offence punishable under Section 302 I.P.C. was also added. The investigation was completed and challan was filed in the competent Court of jurisdiction. 4. The prosecution examined PW/1 Ramdai, the wife of the deceased, PW/2 Peethambar, PW/3 Munna Lal, PW/4 Munni Bai, PW/5 Smt. Sukaldai, PW/6 Adit Kumar Devangan, PW/7 Pooran Singh Bhagel, PW/8 Dr. R.K. Singh and PW/9 S.P. Patel. The defence did not adduced any witness but produced a document exhibit D/8. 5. Learned counsel for the appellant Shri Shrivastava submits that the conviction and sentence is illegal. He contended that the Court below has wrongly relied upon the statement of PW/1 wife of the deceased. It is further contended that other witnesses PW/2 Peethambar and PW/3 Munna Lal did not support the prosecution version, as such the prosecution case as a whole was to be discarded. He contended that the Court below has wrongly relied upon the statement of PW/1 wife of the deceased. It is further contended that other witnesses PW/2 Peethambar and PW/3 Munna Lal did not support the prosecution version, as such the prosecution case as a whole was to be discarded. In para 2 of the deposition of PW/1 Ramdai, she stated that after taking meals while her husband was standing outside the house at about 5 P.M., the accused came from the back and inflicted danda blow thrice on the head of her husband. In para 3 it is stated that the accused had taken marpeet with her husband, thereafter she had taken her husband to Kondagaon hospital along with Munna Lal and Peethambar. It is further stated by P.W./1 that It is true that Peethambar and Munna Lal have not supported the prosecution case but we have given our thoughtful consideration on the evidence of PW/1 on which reliance can be placed. It is contended that at the time of occurrence she was in the house, as such she had not seen the offence. Normally the ladies remain busy in the house, PW/1 has stated that on hearing cry of her husband she came out from the house. It is further contended that the PW/1 being wife of the deceased is an interested witness. However we do not find that a rustic lady of tribal community has falsely implicated the accused. The slight variations in the evidence go to show that she is a truthful witness and her evidence should not be thrown out due to slight variations. 6. We have thus considered the overall material and the evidence adduced by the prosecution and relied upon by the trial Court is of such a nature on which reliance has rightly been placed, this Court does not find any infirmity in the order passed by the trial Court. 6. We have thus considered the overall material and the evidence adduced by the prosecution and relied upon by the trial Court is of such a nature on which reliance has rightly been placed, this Court does not find any infirmity in the order passed by the trial Court. We have scrutinized the evidence very minutely and had been read and re-read again keeping in view the decision of Apex Court reported in 2001 AIR SCW 2833 = AIR 2001 SC 3173 (Anil Rai v. State of Bihar) the Apex Court has held that the "testimony of eye witnesses, which is otherwise convincing and consistent, cannot be discarding simply on the ground that the deceased were related to the eye witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye witnesses, the deposition of whom is otherwise consistent and convincing." 7. The next question is that what offence has been committed. The incident had occurred on 17-9-99 at about 5 p.m., the deceased was admitted in the hospital at 7.15 p.m. the injuries sustained by him are mentioned in Ex.P/13. The medical report shows that the patient had consumed liquor in a large quantity and also the X- ray was advised the injured (deceased) was discharged from the hospital and was readmitted and when readmitted he died on 23-9- 99, the discharge certificate is Ex. D/1. It is contented by the learned counsel for the appellant that in the facts and circumstances, the manner in which the incident occurred as also in the fact that he had improved during treatment and was discharged from the hospital, again admitted and died after five days from the date of incident and in view of the document Ex. D/1. It is contented by the learned counsel for the appellant that in the facts and circumstances, the manner in which the incident occurred as also in the fact that he had improved during treatment and was discharged from the hospital, again admitted and died after five days from the date of incident and in view of the document Ex. P/12 in which opinion regarding injury vis a vis stick, the offence would be only under Section 304 Part-I of the I.P.C. 8. Having thus considered the facts and circumstances and the material available on record in the opinion of this Court, the accused is liable guilty for commission of offence under Section 304 Part-I I.P.C. Instead of the sentence awarded by the Trial Court the appellant to undergo rigorous imprisonment for 7 years. The amount of fine Rs. 2000/- awarded by the trial Court is enhanced to Rs. 5000/-. The amount of fine be deposited within a period of 2 months. In default of payment of fine amount the appellant shall suffer 12 months additional R.I. The amount of fine so deposited be disbursed to the widow of the deceased and if she is not alive the-same be disbursed to her legal heirs. 9. The appeal is disposed of to the extent indicated herein above. 10. Certified copy as per rules.