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2012 DIGILAW 322 (CHH)

Milan Kumar v. State of Chhattisgarh

2012-12-05

RADHE SHYAM SHARMA

body2012
ORDER This appeal is directed against judgment dated 30-5-2003 passed by 1st Additional Sessions Judge, Mahasamund in Sessions Trial No. 412/2002. By the impugned judgment, accused/appellant Milan Kumar has been convicted under Section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and co-accused Dhashrath Netam has been acquitted of the charges framed against him. 2. Case of the prosecution, in brief, is as under: 10-12 days prior to the date of incident, the appellant and acquitted accused Dashrath Netam had come to Village Fuljhar along with snakes to earn money for livelihood. They were teaching Mantra of snake and scorpion bite. Villagers Chhalu Khairwar, Konda alias Om Prakash Gond, Komal Dhruw, Rajendra Dhruw, Adharu Dhruw, Kartik Ram Dhruw, Ghasiram and Bhuneshwar alias Makhanu had gone to the appellant and acquitted accused Dashrath to learn Mantra. The appellant and acquitted accused Dashrath had kept variety of snakes in different boxes. After three days training, on 16-8-2002, acquitted accused Dashrath gave a piece of Layee (made of paddy) to all the learners having dipped in poison of Domi Snake (Indian Cobra). All the above person had eaten a piece of Layee. After feeding a piece of Layee, acquitted accused Dashrath told to all the learners that it was necessary to ask for beg from houses, otherwise, Mantra was not to work. Therefore, all the learners reached the house of deceased Ghasiram to beg from his house along with the appellant. The appellant took a Domi snake and started teaching to catch the snake. The appellant caught the Domi snake and told deceased Ghasiram to catch the snake. Deceased Ghasiram caught the Domi snake from the bottom side i.e., its tail. At that time, the appellant rolled the Domi Snake around the neck of deceased Ghasiram. The Domi snake bit deceased Ghasiram. Thereafter, all the learners went to the houses of some other villagers for begging. At about 12-1:00 p. m., when they reached at the Dera of acquitted accused Dashrath, deceased Ghasiram became unconscious. Appellant Milan Kumar brought Jadi-buti (herb) and fed the deceased, however, the deceased remained unconscious. Thereafter, he took the deceased to the house of the deceased and absconded from there on the pretext of bringing medicine for the deceased. In the evening, at about 7:00 p.m., deceased Ghasiram died. Bhuneshwar (PW-1, brother of the deceased) lodged Dehati Nalishi (Ex. Appellant Milan Kumar brought Jadi-buti (herb) and fed the deceased, however, the deceased remained unconscious. Thereafter, he took the deceased to the house of the deceased and absconded from there on the pretext of bringing medicine for the deceased. In the evening, at about 7:00 p.m., deceased Ghasiram died. Bhuneshwar (PW-1, brother of the deceased) lodged Dehati Nalishi (Ex. P-1) in Police Station Mahasamund where Dehati merg intimation (Ex. P-3) was recorded. Investigating Officer gave notice (Ex. P-5) to Panchas and prepared inquest (Ex. P-6) on the dead body of the deceased. The dead body of the deceased was sent to Civil Hospital, Mahasamund for post-mortem examination vide Ex. P-7A. Dr. N. K. Mandape (PW-8) conducted post- mortem examination on the dead body of the deceased and gave report (Ex. P-7). He opined that cause of the death was coma and tissue muscular paralysis leading to cardio respiratory failure due to snake bite. In further investigation, spot map (Ex. P-2) was prepared by Inspector L. K. Gaikwad (PW-9). After completion of the investigation, charge-sheet was filed against the appellant and acquitted accused Dashrath in the Court of Chief Judicial Magistrate, Mahasamund, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by 1st Additional Sessions Judge, Mahasamund, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted the co-accused Dashrath of the charges framed against him. 3. Shri K. K. Dewangan, learned counsel for the appellant, argued that the evidence of prosecution witnesses are not cogent and trustworthy. The evidence of prosecution witnesses is full of contradictions. He further argued that the prosecution has not been able to prove the offence against the appellant beyond reasonable doubt. Co-accused Dashrath has been acquitted by the learned trial Court, therefore, the appellant cannot be convicted on the same set of evidence. Hence, the appellant deserves to be acquitted. 4. On the contrary, Shri R. R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the material available on record with utmost circumspection. 4. On the contrary, Shri R. R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the material available on record with utmost circumspection. Conviction of the appellant is based on the testimonies of Bhuneshwar (PW-1), Kriparam (PW-2), Rajendra Gond (PW-3), Ramadhar Dhruw (PW-4) and Om Prakash (PW-5). 6. Bhuneshar (PW-1), Kriparam (PW-2) and Rajendra Gond (PW-3) deposed that they had gone to the appellant to learn Mantra for catching snakes. They further deposed that the appellant and acquitted accused Dashrath had kept variety of snakes in different boxes. After three days training, on 16-8-2002, acquitted accused Dashrath gave a piece of Layee (made of paddy) to them having dipped in poison of Domi Snake (Indian Cobra). They further deposed that they had eaten a piece of Layee. After feeding a piece of Layee, acquitted accused Dashrath told them that it was necessary to ask for beg from houses, otherwise, Mantra was not to work. Therefore, they went to the house of deceased Ghasiram to beg from his house along with the appellant. They further deposed that the appellant took a Domi snake and started teaching to catch the snake. The appellant caught the Domi Snake and told deceased Ghasiram to catch the snake. Deceased Ghasiram caught the Domi snake from the bottom side i.e., its tail. They further deposed that the appellant rolled the Domi snake around the neck of deceased Ghasiram. The Domi snake bit deceased Ghasiram. They further deposed that they went to other houses for begging. At about 12-1:00 p. m., when they reached at the Dera of acquitted accused Dashrath, deceased Ghasiram became unconscious. They further deposed that appellant Milan Kumar brought Jadi buti (herb) and fed the deceased, however, the deceased remained unconscious. Thereafter, the appellant took the deceased to the house of the deceased and absconded from the there on the pretext of bringing medicine for the deceased. They further deposed that in the evening, at about 7:00 p.m., deceased Ghasiram died. Ramadhar Dhruw (PW-4) and Om Prakash (PW-5) also deposed in similar fashion. 7. Bhuneshwar (PW-1) deposed that he informed the police and lodged Dehati Nalishi (Ex. P-1) and merg intimation (Ex. P-3) was recorded. They further deposed that in the evening, at about 7:00 p.m., deceased Ghasiram died. Ramadhar Dhruw (PW-4) and Om Prakash (PW-5) also deposed in similar fashion. 7. Bhuneshwar (PW-1) deposed that he informed the police and lodged Dehati Nalishi (Ex. P-1) and merg intimation (Ex. P-3) was recorded. Inspector L. K. Gaikwad (PW-9) deposed that Bhuneshwar (PW-1) lodged Dehati Nalishi (Ex. P-1). He further deposed that he registered the FIR (Ex. P-8) in Police Station Maha-samund. ASI J. L. Sahu (PW-10) deposed that he visited the place of occurrence and prepared inquest (Ex. P-6) on the dead body of the deceased and sent it to the Government Hospital Mahasamund for post-mortem examination. Dr. N. K. Mandape (PW-8) deposed that he conducted the post- mortem examination on the dead body of the deceased and gave his report (Ex. P-7). He opined that the cause of the death was coma and tissue muscular paralysis leading to cardio respiratory failure due to snake bite. 8. Sections 299 of the Indian Penal Code reads thus : 299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.- Where death is caused by bodily injury the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation3.- The causing of the death of child in the mother womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 9. In the instant case, appellant Milan Kumar rolled the snake around the neck of the deceased. The act of the appellant is random and not pre-planned. Although there was no intention to cause death but he had at least knowledge that the snake was cobra and poisonous. 9. In the instant case, appellant Milan Kumar rolled the snake around the neck of the deceased. The act of the appellant is random and not pre-planned. Although there was no intention to cause death but he had at least knowledge that the snake was cobra and poisonous. The said act was likely to cause death. Therefore, the appellant is liable for conviction for culpable homicide not amounting to murder. 10. I have carefully perused the evidence of Bhuneshwar (PW-1), Kriparam (PW-2), Rajendra Gond (PW-3), Ramadhar Dhruw (PW-4) and Om Prakash (PW-5). They specifically deposed that appellant Milan Kumar rolled the snake on the neck of the deceased and the snake bit the deceased. Their evidence is corroborated by the medical evidence. Their evidence is cogent and clinching. They have no any motive to implicate the appellant falsely. 11. On due appreciation of the entire evidence of witnesses Bhuneshwar (PW-1), Kriparam (PW-2), Rajendra Gond (PW-3), Ramadhar Dhruw (PW-4) and Om Prakash (PW-5), who are the eye-witnesses of the incident, I find that their evidence are wholly reliable and can be based for conviction of appellant Milan Kumar. Therefore, the finding of conviction recorded by the learned Additional Sessions Judge against the appellant on the basis of the above evidence of the eye-witnesses does not call for any interference by this Court. 12. For the foregoing reasons, I do not find any substance in the appeal; it deserves to be and is hereby dismissed. Appeal dismissed.