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2012 DIGILAW 18 (CHH)

Taran Kumar v. State of C. G.

2012-01-11

R.N.CHANDRAKAR, T.P.SHARMA

body2012
JUDGMENT Hon'ble Shri T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 31-10-2007 passed by Additional Sessions Judge, Dhamtari, in Sessions Trial No. 48/2006, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of wife Hemin Bai, convicted him under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for three months. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 2. As per case of prosecution, on fateful date of 12-6-2006 at 12.00 pm, appellant and his wife Hemin Bai were present in kitchen garden. Appellant assaulted over the head of his wife by Kudali and caused her instantaneous death. When children shouted, PW/1 Samara, father of the appellant and other persons residing in the vicinity rushed to the spot. Appellant also chased the other persons who came there and he was caught hold and tied with a rope by the villagers. 3. PW/1 Samaru, father of the appellant lodged Dehati Nalisi vide Ex.P/2 and merg vide Ex.P/1. Information was given to Police Station by telephone that at village Mandraud i.e., place of incident somebody killed his own wife and was moving as insane. Investigating Officer left for scene of occurrence. After summoning the witnesses, inquest over the dead body was prepared vide Ex.P/3, blood stained soil and plain soil were seized from the spot vide Ex.P/5, blood stained Kudali was recovered vide Ex.P/6, spot map was prepared vide Ex.P/8. Accused was arrested on the same day vide Ex.P/12. Dead body of deceased was sent for autopsy to community health centre, Kurud vide Ex.P/19-A, where Dr. Uma Shankar Navratna (PW/14) conducted autopsy vide Ex.P/19 and found the following injuries: (i) There was a corpuscle hole of 5" diameter over head; (ii) brain was crashed and brain material came out; (iii) There was corpuscle fracture of occipital bone of skull. The doctor opined that the death was due to shock and death was homicidal in nature. 4. Appellant was also examined by Doctor Uma Shankar Navratna (PW/14) vide Ex.P/20 who found contusion and abrasion. The doctor opined that the death was due to shock and death was homicidal in nature. 4. Appellant was also examined by Doctor Uma Shankar Navratna (PW/14) vide Ex.P/20 who found contusion and abrasion. Sealed clothes of deceased were seized vide Ex.P/13. Viscera of the deceased was seized vide Ex.P/14. Blood stained clothes of appellant were seized vide Ex.P/15. Patwari prepared spot map vide Ex.F/16. Finally first information report was lodged vide Ex.P/22 and merg vide Ex.P/23. Seized articles were sent for chemical examination to FSL, Raipur and presence of blood over Kudali and clothes of appellant were confirmed vide Ex.P/26. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Kurud, who in turn committed the case to the Court of Sessions Judge, Raipur. Learned Additional Sessions Judge received the case on transfer for trial who framed charge under Sections 302 of the IPC against the appellant. 6. In order to prove the guilt of the appellant, prosecution examined as many as 20 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. He has taken the defence of insanity available under Section 84 of the IPC. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 9. Mr. Ashok Verma, leaned counsel appearing for the appellant submits that in the light of evidence of prosecution witnesses, he is not disputing the fact that the appellant has not caused single blow of Kudali to his wife Hemin Bai, who died as a result of such injury but further submits that as per evidence of prosecution witnesses information was given to Police Station which was registered as Roj Namcha vide Ex.P/24. The appellant was mentally ill and insane and was not in a position to understand right or wrong and good or bad and even after commission of such act, appellant assaulted his father and chased the other persons who came to the spot and he was caught hold and tied with a rope by villagers. The appellant was mentally ill and insane and was not in a position to understand right or wrong and good or bad and even after commission of such act, appellant assaulted his father and chased the other persons who came to the spot and he was caught hold and tied with a rope by villagers. Prior to commission of the aforesaid act, appellant had consumed poison and was admitted in hospital. Learned counsel further submits that although he has not proved the factum of insanity or defence has not proved its case in terms of Section 105 of the Evidence Act, the aforesaid evidence are sufficient to establish the fact that appellant has not caused any injury to his wife with intent to cause her death and the present appellant is in custody since 12-6-2006. Therefore, if the act attributed to the appellant is considered in its face value, then the act attributed to the appellant does not travel beyond the scope of Section 302 Part II of the IPC. 10. On the other hand, Ms. Madhunisha Singh, learned Panel Lawyer on behalf of the State opposed the appeal and submitted that appellant has caused single blow over the head of the deceased by Kudali and damaged the brain of the deceased. The evidence adduced on behalf of the prosecution is sufficient to prove the guilt of the appellant that he has caused homicidal death of deceased. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the vital part i.e., head of the deceased Hemin Bai has not been disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of Dr. Umashankar Navratna (PW/14) and autopsy report vide Ex.P/19 that death of deceased was homicidal in nature. 13. As regards the complicity of appellant in crime In question, as per paras 1 and 3 of the evidence of PW/1 Samara, father of the appellant, he heard that appellant assaulted the deceased by Kudali, then he rushed to the spot. Appellant also chased him as well as the persons who came to the spot. 13. As regards the complicity of appellant in crime In question, as per paras 1 and 3 of the evidence of PW/1 Samara, father of the appellant, he heard that appellant assaulted the deceased by Kudali, then he rushed to the spot. Appellant also chased him as well as the persons who came to the spot. He was caught hold and roped by villagers. PW/2 Janabai, mother of the appellant, PW/3 Heeraram Sonkar and PW/11 Kssushal Nishad have corroborated the evidence of PW/1 Samara. As per evidence of PW/1 Samara, he rushed to the spot immediately and at that time appellant was having Kudali and his daughter-in-law Hemin Bai was lying dead in the kitchen garden.; Appellant also chased him and villagers, who finally caught hold and roped him. These unrebutted evidence are sufficient to establish the fact that the appellant was a person who caused injury and homicidal death of Hemin Bai. 14. As regards question of motive is concerned, in case of direct evidence motive looses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 15. In the present case, appellant has taken the defence of insanity. As per evidence of PW/1 Samaru, appellant was not examined by Doctor to prove the factum of such insanity in terms of Section 105 of the Indian Evidence Act. The evidence of PW/1 Samaru, PW/2 Jana Bai, PW/3 Heeraram Sonkar, PW/11 Kaushal Nishad and Rojnamcha vide Ex.P/24 reveal that appellant was not in a position to understand right or wrong and good or bad at the time of commission of offence. Even otherwise, this is a case of single blow and after causing a single blow, he was not attempting to cause injuries to other persons and there was no cause for such injury. Present appellant has caused injury to his wife and also chased the persons for causing injuries and at the time of causing such injury he was having knowledge that by his act the deceased may die. Present appellant has caused injury to his wife and also chased the persons for causing injuries and at the time of causing such injury he was having knowledge that by his act the deceased may die. The evidence adduced on behalf of the prosecution is sufficient to establish the fact that appellant has not caused homicidal death of deceased with intent to cause her death and the act attributed to the appellant squarely falls within the ambit of Section 304 Part II of the IPC. The count below, while convicting and sentencing the appellant, has not considered the aforesaid facts and circumstances of the case and thereby committed illegality. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 302 of the IPC is altered into Section 304 Part II of the IPC and he is sentenced to undergo RI for custodial period. The appellant is in custody since 12-6-2006 till today. He be released forthwith, if not required in any other case.