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2013 DIGILAW 36 (CHH)

VIJAY KUMAR DHRUV v. STATE OF C. G.

2013-01-23

R.N.CHANDRAKAR, T.P.SHARMA

body2013
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28.12.2005 passed by the Sessions Judge, Raipur, in S.T.No.314/2005, whereby & whereunder after holding the appellant guilty for causing homicidal death amounting to murder of his brother Nandlal convicted him under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.2000/-, in default of payment of fine to further undergo R.I. for one year. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 30.3.2005 at about 8 p.m. appellant assaulted his brother Nandlal by wooden plank over his head, Nandlal fell down and became unconscious, he was shifted to Dr. Ambedkar Hospital, Raipur for treatment, he was treated and lastly he died on 4.4.2005. Merg was recorded vide EX.P/10. Investigating officer left for scene of occurrence and after summoning the witnesses vide Ex.P/8, inquest over dead body of the deceased was prepared vide Ex.P/9. Finally F.I.R. was registered vide EX.P/11. Dead body of the deceased was sent for autopsy to Medical College, Raipur. Dr. V.K. Duruv (PW-1) conducted autopsy vide EX.P/1 and noticed several minor injuries including stitched wound with depressed fracture of skull bone & contusion along with lacerated wound and multiple fractures of skull bone. Spot map was prepared vide EX.P/4. Appellant was taken into custody, he made disclosure statement of stick vide EX.P/5 and same has been recovered at the instance of appellant vide Ex.P/6. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions, Raipur. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as eight witnesses. Accused/appellant was examined under Section 313 of the Code, in which he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. In his examination under Section 313 of the Cr. P.C. he has taken the defence that his mental position was not normal. 6. Accused/appellant was examined under Section 313 of the Code, in which he denied the circumstances appearing against him and claimed innocence and false implication in the crime in question. In his examination under Section 313 of the Cr. P.C. he has taken the defence that his mental position was not normal. 6. After providing an opportunity of hearing to the parties, the Sessions Judge, Raipur has convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that although conviction of the appellant is based on the evidence of Nannada Bai (PW-7), wife of the deceased, but as per evidences of Rajendra Kumar Dhruv (PW-3) and Basant Yadu (PW-4), mental position of the appellant was not normal, he was behaving like insane and he was under treatment, which reveals that the appellant was insane. At the time of commission of offence he was not having knowledge that what is good & what is bad, what is right & what is wrong. In the light of aforesaid evidence, the trial Court was under obligation to proceed under Section 328 of the Cr. P.C., but the trial Court has failed to proceed and thereby committed illegality. Learned counsel further argued that even otherwise, this is a case of single blow in which the deceased has died after five days of the incident. No motive or intention for causing such injury has been proved by the prosecution, even there was no previous enmity between appellant and deceased. Learned counsel also argued that even if the case of the prosecution is considered in its face value, then the act attributed to the present appellant does not travel beyond the scope of Section 304 Part-I of the IPC. 9. On the other hand, learned Panel Lawyer for the State opposed the appeal and argued that conviction of the appellant is substantially based on the evidences of Nannada Bai (PW-7), wife of the deceased arid Rajendra Kumar Dhruv (PW-3). Evidences of the aforesaid witnesses are sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause his death and after appreciating the evidence available on record, the trial Court has convicted and sentenced the appellant as aforementioned. 10. Evidences of the aforesaid witnesses are sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause his death and after appreciating the evidence available on record, the trial Court has convicted and sentenced the appellant as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. In the present case, homicidal death as a result of fatal injuries found over vital part of body i.e. head of the deceased has not been substantially disputed on behalf of appellant, on the other hand, same is also established by the evidence of Dr. Y.K. Duruv (PW-1) and autopsy report Ex.P/11. Death was homicidal in nature. 12. As regards the complicity of appellant in crime in question, conviction is substantially based on the evidence of Nannada Bai (PW-7), wife of the deceased. As per her evidence, she was present with her husband, appellant came with stick and caused injury over head of her husband Nandlal, who became unconscious, her husband was shifted to hospital where he died. Rajendra Kumar Dhruv (PW-3) has deposed that at the time of incident he heard sound cpkvks cpkvks from the house of appellant, he rushed to the house of appellant along with Bhau and Rohit where he saw Nandlal stained with blood, deceased and appellant were quarreling, when he asked the appellant about the incident, then appellant tried to assault him. 13. Defence has cross-examined these witnesses at length. In para 2 of cross-examination of Rajendra Kumar Dhruv (PW-3), he has admitted that mental position of the appellant was not normal and he was under treatment. Narmada Bai (PW -7) has specifically deposed in her cross-examination that she has seen the incident and appellant has caused single blow by stick. Specific defence of insanity available under Section 84 of the IPC of a person of unsound mind has been taken by the appellant in terms of Section 105 of the Evidence Act, appellant was under obligation to prove such exception by cogent evidence, but he has failed to adduce any evidence to establish his defence of exception. 14. In absence of such poof of insanity, it would be difficult to hold that appellant was a man of unsound mind or insane, but evidence reveals that he was a man of retarded mind. 15. 14. In absence of such poof of insanity, it would be difficult to hold that appellant was a man of unsound mind or insane, but evidence reveals that he was a man of retarded mind. 15. Evidence of Narmada Bai (PW-7) corroborated by the evidence of Rajendra Kumar Dhruv (PW -3) are sufficient for drawing inference that appellant has caused single blow of stick over the head of the deceased and caused fatal injuries resulting into homicidal death of the deceased. 16. As regards the question of motive, motive is only aid in criminality and it looses importance in case of direct evidence and it can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. Motive is a state of mind of person at the time of commission of offence and only person concerned would be in a position to explain that what was his intention or motive behind commission of any act. 17. In the present case, there was no previous enmity between the parties, there was no propriety for causing such injuries and after causing injury appellant has not tried to flee from the spot, he was not holding any weapon and he has not caused repeated injuries, but at the time of causing injury, that too over the head by wooden stick appellant was having knowledge that by his act the deceased may die. Therefore, the act attributed to present appellant squarely falls within the ambit of Section 304 Part-I of the IPC and not under Section 302 of the IPC. 18. After appreciating the evidence available on record, the Sessions Judge has convicted and sentenced the appellant as aforementioned. By convicting and sentencing the appellant the trial Court has not considered the circumstances in which incident took place, case of single blow without premeditation & preparation and thereby committed illegality. 19. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-I of the IPC and sentenced to undergo for the period already undergone by him since 25.5.2005 till today i.e. more than seven and half years. He be released forthwith, if not required in any other case. Appeal Partly Allowed.