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2012 DIGILAW 274 (CHH)

GYANIK RAM SAHU v. STATE OF C. G.

2012-10-17

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 20th of February, 2008, passed in Sessions Trial No. 45/2007 by the Additional Sessions Judge, Dhamtari (C.G.). By the impugned judgment, the appellants have been convicted u/ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/- with default sentence of R.I. for 50 days. Appellants 2 & 3 have been further convicted u/ss 452/34 IPC and sentenced to undergo R.I. for 2 years and to pay fine of Rs.200/- with default sentence of R.I. for 20 days. Their sentences have been directed to run concurrently. 2. The facts, briefly stated, are as under:- On 5.3.2007 at about 4.00 p.m., deceased- Som Prakash and his brother- Dharmendra (PW -2) had gone to the grocery shop of Pradeep Sinha (PW-9). The allegations are that the appellants came there with danda and assaulted the deceased by danda and hands & fists. When Dharmendra (PW-2) tried to escape from the place of occurrence, appellant- Santosh and Lomas (A-2 & A-3) chased him and entered into his house when Dharmendra entered his house to save his life. The incident of assaulting the deceased was witnessed by Dharmendra (PW-2) and Chumman (PW-10). The F.I.R. (Ex.-P/1) was lodged by the deceased himself and offence u/ss 452, 294, 506 Part II and 323 read with Section 34 IPC was registered against the appellants/accused persons (A-1 to A-4). The deceased was sent for medical examination. He was examined by Dr. T.R. Dhruw (PW-16). He noticed one lacerated wound of 6 x 2 x 1 cm on the skull of the deceased. He also noticed two superficial injuries on leg & knee. The deceased was referred to Raipur. He was admitted in Ambedkar Hospital, Raipur, where he died during the course of treatment at about 7.20 a.m. on 9.3.2007. The intimation of death was sent to the concerned police. The Investigating Officer reached to the hospital, gave notice (Ex.-P/7) to the Panchas and prepared inquest (Ex.P/8) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Shivnarayan Manjhi (PW-11). The intimation of death was sent to the concerned police. The Investigating Officer reached to the hospital, gave notice (Ex.-P/7) to the Panchas and prepared inquest (Ex.P/8) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Shivnarayan Manjhi (PW-11). He noticed following injuries on the dead body of the deceased:- (i) Lacerated wound of 4 x 0.5 cm x bone deep on the right fronto-parietal region having 4 stitches; (ii) Lacerated wound of 1 x 0.5 cm at the tip of the left thumb; (iii) Lacerated wound of 2 cm diameter on the right knee; (iv) Lacerated wound of 2 cm diameter on the left ankle; & (v) Abrasion with a laceration of 2 x 5 cm on the right thigh. On internal examination, it was found that there was no bony injury. Clotted blood found present beneath injury No. (i) Some frothy liquid was found in trachea. There was swelling over the lungs. Lungs were having pneumonic spots. 250 milliliter of yellowish liquid was found in thoracic cavity. 100 milliliter of yellowish liquid was found in abdominal cavity. Thick brownish liquid, about 250 milliliter, was found in stomach. Petty changes were seen in liver. Spleen was found reddish. The Autopsy Surgeon opined that the cause of death was cardio respiratory failure on account of injury to the skull (injury No. i) and its complications. In further investigation a danda was seized from Santosh (A-2) vide seizure memo Ex.-P/2. Another danda was seized from Lomas (A-3) vide seizure memo Ex.-P/3. Site plan was prepared vide Ex.-P/5. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, a report Ex.-P/32 was received. According to the F.S.L. report, blood stains were found on the underwear of the deceased (Article-A) only. The pieces of spleen, liver, kidney, lungs and brain were also sent for Pathological Investigation and a report Ex.-P/35 was received. In Pathological Examination nothing specific was found in spleen, kidney and brain. However, cholestasis and early inflammatory infiltrate was found in liver and collection of fluid was found in the alveoli. From the defence side, a report was lodged u/s 342 & 323/34 IPC against Ram Rajya (PW-1) and Dharmedra (PW-2) that they had wrongfully restrained and assaulted Lomas (A-3). It was registered as Crime No. 45/2007 in P.S. Magarlod, District Dhamtari. However, cholestasis and early inflammatory infiltrate was found in liver and collection of fluid was found in the alveoli. From the defence side, a report was lodged u/s 342 & 323/34 IPC against Ram Rajya (PW-1) and Dharmedra (PW-2) that they had wrongfully restrained and assaulted Lomas (A-3). It was registered as Crime No. 45/2007 in P.S. Magarlod, District Dhamtari. The documents relating to the above crime number were proved by the defence as Ex.D/3, D/4, D/5, D/6, D/7, D/8 & D/9. The defence came with the case that the appellants were falsely implicated. In fact, Lomas (A-3) was wrongfully restrained in the house of Ram Rajya (PW-1), therefore, report of above nature was lodged by them against the two prosecution witnesses. The learned Sessions Judge relied on the testimonies of Dharmendra (PW-2) and Chumman (PW-10) and convicted & sentenced the appellants as above. 3. Mr. Y.C. Sharma & Mr. Arun Kochar, learned counsel appearing on behalf of the appellants, have argued that the two witnesses namely Dharmendra (PW-2) and Chumman (PW-10) were unreliable; there were many infirmities in their evidence; therefore, conviction based on their testimonies cannot be sustained. Alternatively, it was also argued that there was no evidence of common intention; there was no evidence to show as to who caused head injury; there was no bony injury; the deceased died on the 5th day of the incident, therefore an offence u/s 302 IPC would not be made out. 4. On the other hand, Mr. Sandeep Yadav, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 6. So far as incident taking place at the instance of accused persons (A-1 to A-4) and their involvement in the incident is concerned, we have two sets of evidence. First - F.I.R. lodged by the deceased himself; and Second. Eye-witness account of Dharmendra (PW-2) and Chumman (PW-10). 7. In the instant case, the deceased had himself lodged F.I.R. (Ex.P/1), on which, an offence ulss 452, 294, 506 Part II and 323/34 IPC was registered against the accused persons. The F.I.R. has been duly proved. The F.I.R. contains the names of all the accused persons. It also contains the details of the incident. 7. In the instant case, the deceased had himself lodged F.I.R. (Ex.P/1), on which, an offence ulss 452, 294, 506 Part II and 323/34 IPC was registered against the accused persons. The F.I.R. has been duly proved. The F.I.R. contains the names of all the accused persons. It also contains the details of the incident. The deceased mentioned in the F.I.R. that all the accused persons assaulted him by hands & fists and danda. No specific role was attributed to any accused by the deceased in the F.I.R. After lodging the F.I.R. on 5.3.2007, the deceased was sent for medical examination, thereafter he was referred to Ambedkar Hospital, Raipur, where he died during the course of his treatment. Therefore, the F.I.R. was a dying declaration of the deceased, and thus, it was admissible in evidence u/s 32 of the Evidence Act (See- Munna Raja and another Vs. The State of Madhya Pradesh AIR 1976 SC 2199 ). 8. We have also gone through the evidence of Dharmendra (PW-2) and Chum man (PW -10). Both have deposed that the appellants (A-1 to A4) had assaulted the deceased by hands & fists and danda. Therefore, involvement of the appellants was proved by them in their evidence. On due appreciation of the evidence of these witnesses, we find that though they deposed that the appellants had assaulted the deceased in the above manner, they did not depose about the actual role played by each appellant. 9. On due appreciation of the evidence of the above two eye witnesses and the contents of the F.I.R. (Ex.-P/1), we find that it was proved beyond all reasonable doubt that all the appellants participated in assaulting the deceased by hands & fists and danda due to which the deceased sustained above injuries and succumbed to those injuries on the 5th day of the incident. We further find from the evidence of the prosecution witnesses that appellants 2 & 3 has chased Dharmeudra (PW-2) and in the process the chasing, they had entered into the house of the deceased and there involvement to this effect was also established on record. 10. Now question arises that in the facts and circumstances of the case, particularly on the face of evidence of Dharmendra (PW-2) and Chumman (PW10) as also the Doctor, which offence is made out against the accused persons? 10. Now question arises that in the facts and circumstances of the case, particularly on the face of evidence of Dharmendra (PW-2) and Chumman (PW10) as also the Doctor, which offence is made out against the accused persons? Learned counsel for the appellants have argued that two eye-witnesses could not disclose as to who gave fatal injury to the deceased and only one injury on the head of the deceased was fatal, therefore, all the accused persons cannot be convicted u/ss 302/34 IPC in absence of any evidence of common intention to cause death, and looking to the nature of injuries found on the body of the deceased only their knowledge can be attributed and the offence committed by them would not travel beyond Section 304 Part 11/34 IPC. 11. We have considered the matter in light of the above submissions. 12. In Panchaiah and others Vs. State of Karnataka 1994 Supp (2) SCC 235, six injuries on various parts of the body of deceased were caused by cycle chain and club. The first injury was lacerated wound on the middle of the head measuring 2 cms x 1 cm and bone deep. The second injury was a bruise (exhymosis) black coloured on the antero laternal aspect of the right arm extending from the right shoulder joint aspect measuring 23cms x 9 cms. The third injury was again a bruise (exhymosis) black coloured on the interior aspect of the left upper arm upto the left elbow joint measuring 10 cms x 9 cms. The fourth injury was an abrasion black colour on the left patella measuring 3 cms x 2 cms. The fifth injury was also abrasion black colour just middle to the injury No.4. The last injury was again only an abrasion on the left side of the abdomen at the level of the umbelious 6 cms. The doctor opined tr1at there was extra-vasation of blood just below the head injury No.1. He opined that the death was the result of shock and hemorrhage. He further opined that injury to the brain and the vessels was due to external injury No.1. Injuries 1, 4 & 5 would be caused by a hit with a cycle chain. The doctor opined tr1at there was extra-vasation of blood just below the head injury No.1. He opined that the death was the result of shock and hemorrhage. He further opined that injury to the brain and the vessels was due to external injury No.1. Injuries 1, 4 & 5 would be caused by a hit with a cycle chain. The Apex Court held that the medical evidence shows that there was only one injury, which was serious, on the head and the other injuries were only bruised abrasions and if really the intention of the appellants was to cause death, they would have inflicted more serious injuries. The Apex Court found that only one injury on the head which unfortunately resulted in extra-vasation of the blood causing injury to brain and under these circumstances it cannot be said that the accused persons had common intention to cause the death of the deceased. However the injuries inflicted would show that they had only knowledge in which case they are punishable u/s 304 Part II read with Section 34 I.P.C. 13. In Sarman and others Vs. State of M.P. 1993 Supp (2) SCC 356 the Doctor, P.W. 19 who conducted the postmortem, noticed 17 injuries. Out of them, injury Nos. 1, 3, 10, 11 and 14 were described as incised wounds. Though they resulted in bleeding but no other damage was noticed. It was only injury No. 15 which has resulted in a depressed fracture of parietal bone and ultimately proved in membrane puncture. Though the Doctor in general way stated, cause of death was due to multiple injuries but he has specifically stated that on injury No. 15, he noticed a depressed fracture of parietal bone which individually was sufficient to cause death of the deceased. It was a case in which the prosecution could not prove that which of the accused caused the fatal injury. The Doctor, who conducted the postmortem, while opining generally that the multiple injuries caused the death, specifically stated that the depressed fracture was individually sufficient to cause death of the deceased. It was a case in which the prosecution could not prove that which of the accused caused the fatal injury. The Doctor, who conducted the postmortem, while opining generally that the multiple injuries caused the death, specifically stated that the depressed fracture was individually sufficient to cause death of the deceased. The Apex Court held that which of the accused has caused the fatal injury was not pointed out by the prosecution, therefore, in the circumstances all the accused persons cannot be said to have the common object of committing the murder of the deceased, though they may have knowledge that the blows given were likely to cause death and if anyone of the accused exceeded the common object and acted on his own, that would be his individual act but in absence of evidence as to who acted so, conviction of accused appellant u/s 302/149 cannot be sustained and sentence of life imprisonment altered to that U/S 304 Part II/149 sentencing 7 years R.I. 14. In the instant case, though 5 external injuries were found on the dead body of the deceased, only injury No. (i) caused over the skull was fatal as the cause of death was cardio respiratory failure on account of injury to the skull (injury No. i) and its complications. The evidence of Dharmendra (PW 2) and Chumman (PW-10) and further the contents of the F.I.R. (dying declaration) would show that it was not proved as to who caused the fatal injury on the skull of the deceased. Therefore, in absence of any evidence of common intention to cause the death of the deceased, in the facts and circumstances of the case all the accused persons cannot be said to have the common intention to commit murder of the deceased, though they had the knowledge that the blow given was likely to cause his death. If anyone of the accused exceeded the common intention and acted on his own that would be his individual act, but in absence of the evidence as to who acted so, conviction of all the accused persons with the aid of Section 34 u/s 302/34 IPC would not be possible. However, since there is evidence of their knowledge that the blows given were likely to cause death for which they were sharing common intention, they would be convicted U/S 304 Part-II read with Section 34 IPC. However, since there is evidence of their knowledge that the blows given were likely to cause death for which they were sharing common intention, they would be convicted U/S 304 Part-II read with Section 34 IPC. Besides the above we also note that there was no bony injury to the deceased. The deceased went to the police station and he himself lodged the F.I.R. (Ex. P/l). The death of the deceased was not instantaneous and he died on the 5th day of the incident, and, the Autopsy' Surgeon has opined that the death was on account of complications arising out of injury No. (i). All this would be the additional circumstance to hold that an offence u/ss 302/34 IPC would not be made out against the appellants. 15. In the result, the appeal is partly allowed. The conviction and sentences awarded to the appellants u/ss 302/34 IPC are set-aside instead thereof, the appellants are convicted u/ss 304 Part II/34 IPC and sentenced to undergo R.I. for 7 years. The conviction and sentences awarded to appellants 2 & 3 (A-2 & A-3) u/s 452 IPC are maintained. The direction to run their sentences concurrently is also maintained. Appeal Partly Allowed.