Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 21 (CHH)

SAMPATDHANWAR v. STATE OF C. G.

2012-01-12

R.N.CHANDRAKAR, T.P.SHARMA

body2012
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23-6-2007 passed by 1st Additional Sessions Judge, Baloda Bazar, in Sessions Trial No.55/2007, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of Dukalu, convicted him under Sections 302 & 450 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 one month and R.I. for five years and to pay fine of Rs.500/-, in default of payment of fine to further undergo R.I. for one month respectively. Both the sentences are directed to run concurrently. 2. 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. 3. As per case of prosecution, on fateful day of 7-11-2006 appellant along with his brother-in-law Dukalu came back from forest after collecting wood and they consumed liquor. When they were coming to their houses, present appellant demanded money from deceased Dukalu, thereafter some altercation took place between them. Appellant entered into the house of deceased and pushed him on the ground, thereafter he assaulted by axe over right thigh and pressed his testicles as a result of which Dukalu died on the spot. PW/1 Pawara Bai, wife of deceased, PW/2 Sarmati and PW/4 Dukwa had witnessed the incident. 4. PW/1 Pawara Bai, wife of the deceased lodged Dehati Nalisi vide Ex.P/12 and merg vide EX.P/13. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/1 inquest over the dead body was prepared vide Ex.P/2, spot map was prepared vide Ex.P/4. Dead body was sent for autopsy to Government Hospital, Bilaigarh vide Ex.P/9-A where Doctor H. Verma conducted autopsy vide Ex.P/9 and found the following injuries:- (i) Incised wound of 6.5cm x 1.5cm x 3 cm present over right thigh; (ii) No injury was noticed over testicles Doctor opined that mode of death was due to shock and hemorrhage. 5. Dead body was sent for autopsy to Government Hospital, Bilaigarh vide Ex.P/9-A where Doctor H. Verma conducted autopsy vide Ex.P/9 and found the following injuries:- (i) Incised wound of 6.5cm x 1.5cm x 3 cm present over right thigh; (ii) No injury was noticed over testicles Doctor opined that mode of death was due to shock and hemorrhage. 5. During the course of investigation, appellant was taken into custody and he made a disclosure statement of axe vide Ex.P/5 and the same was recovered at the instance of the appellant vide Ex.P/6, blood stained soil and plain soil were seized vide Ex.P/7, blood stained clothes of the appellant were seized vide Ex.P/8 and finally first information report was registered vide Ex.P/16. Seized articles were sent for chemical examination to FSL Raipur vide Ex.P/18. 6. 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, Baloda Bazar, 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 charges under Sections 302 & 450 of the IPC against the appellant. 7. In order to prove the guilt of the appellant, prosecution examined as many as seven 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. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 10. Mr. J.R. Verma learned counsel for the appellant vehemently argued that as per evidence of prosecution witnesses and case of prosecution, on account of dispute relating to demand of money some altercation took place between appellant and his brother-in-law, unfortunate deceased Dukalu. The appellant assaulted by axe over thigh of the deceased and also pressed his testicles but no injury has been detected on testicles of the deceased. The appellant assaulted by axe over thigh of the deceased and also pressed his testicles but no injury has been detected on testicles of the deceased. Injury found over thigh was simple in nature which was not sufficient for causing death, therefore, if the act attributed to the appellant is considered in its face value, then the act of the appellant does not travel beyond the scope of Section 304 Part II of the IPC and the appellant is in custody since 7-11-2006. 11. On the other hand, Mr. Rakesh Kumar Jha, learned Dy. Govt. Advocate on behalf of the State opposed the appeal and submitted that PW/1 Pawara Bai, wife of deceased, PW/2 Sarmati and PW/4 Dukwa had witnessed the incident and the evidence adduced on behalf of the prosecution is sufficient for drawing inference that present appellant has caused homicidal death of deceased with intent to cause his death. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, prosecution examined PW/6 Doctor H. Verma, who conducted autopsy and gave his report vide Ex.P/9. As per his report, he found one incised wound of 6.5cm x 1.5cm x 3 cm present over right thigh of the deceased but has not noticed any injury over testicles of the deceased. Although he has deposed that if injury was caused on testicle then person may die as a result of neurogenic shock. As per evidence of PW/1 Pawara Bai, wife of deceased, PW/2 Sarmati and PW/4 Dukwa, on account of demand of money some altercation took place between the appellant and the deceased, then appellant assaulted the deceased by axe over his thigh, kicked him on the ground and caused injury on his testicles but no injury was noticed upon testicles and even Doctor has not noticed any internal hemorrhage. The evidence of the aforesaid witnesses reveal that some altercation took place between the appellant and the deceased at about 1 p.m., on the date of incident when they came back from forest after collecting wood and appellant caused aforesaid injury to the deceased. Appellant and deceased were relatives and deceased was brother-in-law of the appellant. The evidence of the aforesaid witnesses reveal that some altercation took place between the appellant and the deceased at about 1 p.m., on the date of incident when they came back from forest after collecting wood and appellant caused aforesaid injury to the deceased. Appellant and deceased were relatives and deceased was brother-in-law of the appellant. Appellant has not caused any injury on testicles, except one injury found over the right thigh of the deceased and there was no cause for causing such injury and the incident took place on a sudden quarrel without premeditation on account of demand of money. These facts are sufficient to prove the fact that the appellant has not caused homicidal death of deceased with intent to cause his death but at the time of causing such injury appellant was having knowledge that by his act the deceased may die. Thus, the act attributed to the appellant squarely falls within the ambit of Section 304 Part II of the IPC and not under Section 302 of the IPC. The court below, while convicting and sentencing the appellant, has not considered the aforesaid facts and circumstances of the case and thereby committed illegality. 13. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant under Section 450 of the IPC is hereby maintained. 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 7-11-2006 i.e. for more than 5½ years. He be released forthwith, if not required in any other case. Appeal Partly Allowed.