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2014 DIGILAW 245 (CHH)

Roopan Sai v. State of M. P.

2014-07-02

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

body2014
Judgment Pritinker Diwaker, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 8th September, 1998 passed by the II Additional Sessions Judge, Ambikapur, Distt. Surguja in S.T. No. 181/97 convicting each of the accused/appellants under Section 302/34 of IPC and sentencing them to undergo life imprisonment, to pay a fine of Rs. 200/- and in default thereof, to undergo additional RI for one year. 2. In the present case, name of the deceased is Ishwar, It is alleged that on 5.5.1997 on the eve of Katori festival, the villagers of Village-Mohanpur had gathered and there after consuming liquor quarrel took place between the accused persons and the deceased. It is alleged that in the said incident, deceased Ishwar was beaten by the accused persons and accused/appellant No. 1 Roopansai sat on the chest of the deceased and pressed his neck as a result of which Ishwar died on the next day i.e. 6.5.1997 at about 10 am on the way while being taken to hospital. On 6.5.1997 at 3 pm FIR (Ex.P/1) was lodged by PW-1 Bholaram alleging in it that on 5.5.1997 for celebrating Katora festival when he was going towards the place of worship, on the way near the house of Sapan Kanwar he heard the commotion of quarrel and when he reached there, he saw the deceased lying on the floor and accused/appellant No. 1 Roopansai sitting on his chest and pressing his neck. At that time, acquitted accused Nawalsai was holding the deceased whereas accused/appellant No. 2 Sukhnath was beating him with kicks. He has stated that the matter was intervened by some of the villagers. Deceased Ishwar was taken to his house by his brother Jageshwar Kanwer, however, he was complaining of pain on his neck, he was unable to eat and speak and there was swelling on his neck. According to this witness, considering the serious condition of the deceased when he was being shifted to hospital, on the way he expired. Immediately after lodging FIR, merg intimation (Ex.P/2) was recorded at the instance of PW-1 Bholaram. Postmortem on the body of the deceased was conducted on 7.5.1997 vide Ex.P/12 by Dr. A.R. Jayant (PW-8), who opined that the cause of death is asphyxia due to throttling and the death was homicidal in nature. Immediately after lodging FIR, merg intimation (Ex.P/2) was recorded at the instance of PW-1 Bholaram. Postmortem on the body of the deceased was conducted on 7.5.1997 vide Ex.P/12 by Dr. A.R. Jayant (PW-8), who opined that the cause of death is asphyxia due to throttling and the death was homicidal in nature. After investigation, charge sheet was filed against the accused persons under Section 302/34 of IPC and accordingly, charge was framed against them. 3. So as to hold the accused persons guilty, the prosecution examined as many as 09 witnesses. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined Dr. B.S. Sengar, Sitabai and Aswani Shrivastava as DW-1, DW-2 & DW-3 respectively. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting accused Nawalsai of the charge under Section 302/34 of IPC, convicted and sentenced the accused/appellants as mentioned in para-1 of this judgment. 5. Contention of learned counsel for the appellants is as under: (i) that even if the entire prosecution case is taken as it is, the accused/appellants can not be convicted for the offence under Section 302/34 of IPC; (ii) that accused/appellant No. 2 can not be convicted with the aid of Section 34 of IPC for committing murder of the deceased and considering the nature of allegations and the evidence available on record against him, he can at best be held guilty under Section 323 of IPC for voluntarily hurt; (iii) that even if the entire prosecution case is accepted, act of accused/appellant No. 1 can be said to be culpable homicide not amounting to murder and as such, at the most he can be held guilty under Section 304 Part-II of IPC; (iv) that considering the fact that the incident is of the year 1997, accused/appellant No. 1 has already remained in jail for more than 11 years and accused/appellant No. 2 has been inside for more than 3 months, after holding them guilty under Section 304 Part II and Section 323 of IPC respectively, they may be sentenced to the period already undergone by them. 6. 6. On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of the accused/appellants is strictly in accordance with law and there is no illegality or infirmity in the judgment impugned warranting interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 Bholaram is a witness who lodged FIR (Ex.P/1) and merg intimation (Ex.P/2). He has stated that on the date of incident when he was crossing the house of Sapan (PW-3), he saw the accused persons and the deceased quarreling. When he reached the house of Sapan, Jageram (PW-2) and Kalas (PW-4) were dragging out the deceased and then the deceased was taken to his house. He has stated that during the quarrel the deceased was beaten by the accused/appellants with hands and fists and thereafter, acquitted accused Nawal also came there running. He has though admitted his signature on the FIR and merg intimation, however, he was declared hostile. In the cross-examination, he has admitted the fact that on the second day he noticed swelling over the neck of the deceased, the deceased was not in a position to talk and therefore, he was being shifted to hospital. He has further admitted the fact that on the eve of Katori festival the villagers had consumed liquor and on the date of incident the accused persons and the deceased had also consumed liquor and were drunk. On the second day when he had gone to the house of the deceased, his family members were offering him (deceased) milk, but he did not take the same and when after some time his condition started deteriorating, he was taken to hospital. Though there appears to be minor contradictions and omissions in the Court statement of this witness from that of his case diary statement as well as the FIR, however, they are insignificant in nature. 9. PW-2 Jageram, brother of the deceased, is an eyewitness to the incident. While supporting the prosecution case he has stated that there was quarrel between the accused/appellants and the deceased in the house of Sapan and when he reached the place of occurrence he saw accused/appellant No. 1 Roopan pressing the neck of his brother Ishwar whereas accused/appellant No. 2 Sukhnath was beating him. While supporting the prosecution case he has stated that there was quarrel between the accused/appellants and the deceased in the house of Sapan and when he reached the place of occurrence he saw accused/appellant No. 1 Roopan pressing the neck of his brother Ishwar whereas accused/appellant No. 2 Sukhnath was beating him. He has stated that upon intervention by Kalas (PW-4) and himself, the deceased was rescued and taken to his house. He has further stated that after bringing the deceased to his house, he was not provided any treatment thinking that he was drunk and has been beaten and therefore, he is sleeping. However, in the night his condition started deteriorating and therefore, on the next morning he was being taken to hospital, but on the way he expired. He is also a witness to inquest notice (Ex.P/3), inquest (Ex.P/4), spot map (Ex.P/5) prepared by the Patwari as also to receipt (Ex.P/6) of dead body of the deceased after postmortem. In the cross-examination he has admitted the fact that after the incident when the deceased was being taken to his house by him and Kalas the deceased was talking and was trying to free himself from the clutches. He has reiterated the fact that the deceased was in a drunken condition and was also beaten. In cross-examination, he has admitted the fact that there was no previous quarrel between the deceased and the accused persons. 10. PW-3 Sapan, who is a witness in whose house the incident had taken place, has stated that on the eve of Kotari festival it is the deceased who started abusing accused/appellant No. 2 in the name of his mother and sister and then he asked accused/appellant No. 2 to leave the place otherwise quarrel may take place. He has stated that at that time the deceased again started abusing appellant No. 1 Roopan for which he was warned by Roopan and then the deceased bit appellant No. 1. At that time, wife of this witness started shouting whereupon he came to his house and separated Roopan and Ishwar. Thereafter, Jageram (PW-2) and Kalas (PW-4) also reached there arid took the deceased along with them. However, on the second day he came to know about the death of the deceased. In the cross-examination this witness remained very firm and nothing could be elicited from him to render his evidence untrustworthy or doubtful. 11. Thereafter, Jageram (PW-2) and Kalas (PW-4) also reached there arid took the deceased along with them. However, on the second day he came to know about the death of the deceased. In the cross-examination this witness remained very firm and nothing could be elicited from him to render his evidence untrustworthy or doubtful. 11. PW-4 Kalasram is another eyewitness to the incident. While first describing the quarrel between the accused persons and the deceased he has stated that after the incident the deceased was taken to his house and on the next morning while being shifted to hospital he expired. In the cross-examination this witness has also remained very firm and stuck to his deposition made in the examination-in-chief. 12. PW-5 Bisun has been though declared hostile but has admitted the fact that on the eve of Kotari festival the villagers had gathered and the deceased abused appellant No. 2 Sukhnath and that appellant No. 1 Roopan and Chamru (PW-7) were trying to make him (deceased) understand. In cross-examination, he has admitted the fact that on the date of incident the deceased had consumed excessive liquor and it is he (deceased) who was abusing and was not in a position to think about his welfare. He has further admitted the fact that without there being any reason the deceased was abusing appellant No. 2 Sukhnath and that Sukhnath had not done anything. 13. PW-6 Rajnath is a witness to inquest notice (Ex.P/3), inquest (Ex.P/4) and arrest memos of the accused persons (Ex.P/8 to P/10). 14. PW-7 Chamru is a witness to intervention in the quarrel between the deceased and the accused persons. He too has stated that it is the deceased who had bitten accused/appellant No. 1 Roopan and after his intervention the deceased was taken to his house by Bholaram (PW-1) and Jageshwar. In cross-examination, he has also admitted the fact that the deceased was in a drunken condition. 15. PW-8 Dr. A.R. Jayant who conducted postmortem on the body of the deceased vide Ex.P/12, noticed the mark of finger on the neck of the deceased as also scratch mark over the same. He also noticed contusions on the chest of the deceased and fracture of 2nd rib. 15. PW-8 Dr. A.R. Jayant who conducted postmortem on the body of the deceased vide Ex.P/12, noticed the mark of finger on the neck of the deceased as also scratch mark over the same. He also noticed contusions on the chest of the deceased and fracture of 2nd rib. In the internal examination he found that brain was congested, both the lungs were congested; left chamber of the heart was full of blood whereas right chamber was empty; there was rupture of carotid artery and blood was oozing from it; membranes of the intestines, mouth, trachea, spleen and kidney were congested. According to him, the cause was death was asphyxia due to throttling and the death was homicidal in nature. On his lengthy cross-examination this witness has stated that death after throttling of neck would depend upon the pressure exerted by the person pressing the neck and would also depend upon the physical condition of the victim. He has stated that no time can be ascertained for death of a person after his neck is pressed. He has further clarified that it is not necessary that a person will die immediately after throttling. 16. PW-9 M.K. Singh the investigating officer has duly supported the prosecution case. 17. DW-1 Dr. B.S. Sengar has stated that after throttling death of the victim may occur in one day, two days or it may even taken 15 days. He has stated that the fracture found on the body of the deceased could have been caused by throttling. 18. DW-2 Sitabai has stated that on the date of incident the deceased had consumed excessive liquor and he was in the habit of quarreling after consuming liquor. She has further stated that even the deceased used to quarrel with her after consuming liquor but she could save herself. 19. DW-3 Aswani Shrivastava has not stated anything specific in favour the accused/appellants. 20. Minute examination of the evidence makes it clear that on the date of incident i.e. 5.5.1997 on the eve of Kotari festival the accused/appellant, the deceased and the other villagers had consumed liquor and thereafter, the deceased started quarreling with the appellants after abusing them. It appears that during scuffle, the deceased fell down and accused/appellant No. 1 after sitting on his chest was pressing his neck. It appears that during scuffle, the deceased fell down and accused/appellant No. 1 after sitting on his chest was pressing his neck. As regards accused/appellant No. 2, on the basis of evidence it appears that he had kicked the deceased when he was lying on the floor. The witnesses (PWs 1, 2, 3, 5 & 7) to the incident have duly supported the prosecution case. Though some of the witnesses have been declared hostile but they too have admitted the fact that after consuming liquor the deceased started abusing the appellants, for which he was beaten. According to brother of the deceased (Jageram, PW-2) he took the deceased to his house but did not provide any treatment as he was under the impression that the deceased was in a drunken condition and would become normal after some time. The autopsy surgeon (PW-8) has opined that the cause of death is asphyxia due to throttling and the death was homicidal in nature. There is no force in the argument of learned counsel for the appellants that if neck of the deceased was pressed, he would have died immediately. The autopsy surgeon has categorically stated that upon throttling death may not be instantaneous and it could be after some time and it depends upon the pressure exerted by person on the neck of the victim as well as physical condition of the victim. As per Modi's Medical Jurisprudence and Toxicology (23rd Edition), if the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. As in hanging, insensibility is very rapid, and death is quite painless. In the present case also, the autopsy surgeon has found almost similar symptoms on the body of the deceased on his external and internal examination. Thus considering the statements of the eyewitnesses and the medical evidence, it can safely be held that death of the deceased was due to asphyxia as a result of throttling and it was homicidal in nature. In the facts and circumstances of the case, involvement of the accused/appellants in the crime in question is proved beyond doubt. 21. Thus considering the statements of the eyewitnesses and the medical evidence, it can safely be held that death of the deceased was due to asphyxia as a result of throttling and it was homicidal in nature. In the facts and circumstances of the case, involvement of the accused/appellants in the crime in question is proved beyond doubt. 21. Now the question which arises for consideration of this Court is as to whether act of the accused/appellants can be termed as culpable homicide amounting to murder or culpable homicide not amounting to murder? 22. The evidence reflects that on the date of incident, the villagers including the appellants and the deceased had consumed liquor on the eve of Kotari festival and all of a sudden a quarrel cropped up between the appellants and the deceased and it is the deceased who first started abusing the accused persons despite being made to understand not to do so. There is also evidence to the effect that there was no previous quarrel or animosity between the appellants and the deceased. Thus, in the totality of the circumstances and the evidence adduced by the prosecution, it appears that the act of appellant No. 1 was in the heat of passion upon a sudden quarrel without premeditation or intention. However, considering the nature of injuries caused by appellant No. 1 on vital part of the deceased, it also appears that though he had no intention to cause death of the deceased but had the knowledge that the injury being inflicted by him was likely to cause death of the deceased. That being the position, act of appellant No. 1 is held to be culpable homicide not amounting to murder and he is liable to be convicted under Section 304 Part-II of IPC instead of Section 302/34 of IPC. As regards appellant No. 2 Sukhnath, the only evidence adduced against him is that while appellant No. 1 was beating the deceased and pressing his neck, he (appellant No. 2) also assaulted the deceased with legs. Thus, considering the nature of allegations and the quality of evidence available on record against appellant No. 2, his conviction under Section 302/34 of IPC can not be sustained and instead he is held guilty under Section 323 of IPC for voluntarily causing hurt. 23. Thus, considering the nature of allegations and the quality of evidence available on record against appellant No. 2, his conviction under Section 302/34 of IPC can not be sustained and instead he is held guilty under Section 323 of IPC for voluntarily causing hurt. 23. So far as sentence part is concerned, accused/appellant No. 1 is reported to have remained in jail for more than 11 years and accused/appellant No. 2 has remained in jail for more than three months. Considering the fact that the incident is of the year 1997 and period of detention of the appellants, we are of the opinion that ends of justice would be served if instead of sending them back to jail, they are sentenced to the period already undergone by them. 24. In the result, the appeal is allowed in part. While acquitting the accused/appellants of the charge under Section 302/34 of IPC, accused/appellant No. 1 Roopansai is held guilty under Section 304 Part-II of IPC and accused/appellant No. 2 Sukhnath is held guilty under Section 323 of IPC. They are sentenced to the period already undergone by them. Accused/appellant No. 1 is reported to be on bail, therefore, his bail bonds shall continue for a period of six months from today in view of Section 437-A of Cr.P.C. As regards accused/appellant No. 2, vide order dated 11.12.1998 he was released on bail. However, subsequently vide order dated 28.2.2006 his bail bonds were directed to be forfeited and he was summoned through warrant of arrest. On 14.2.2014 this Court further directed the office to send a reminder to the Court below to submit a report in respect of appellant No. 2 and in compliance of the said order, the Court below has submitted a report dated 23.4.2014 but unfortunately, the said report does not mention whether appellant No. 2 is in jail or still enjoying the bail granted to him earlier. On being asked, counsel appearing for the appellants also pleads no instructions on behalf of appellant No. 2. On being asked, counsel appearing for the appellants also pleads no instructions on behalf of appellant No. 2. Be that as it may, considering the fact that after holding appellant No. 2 guilty under Section 323 of IPC he has been sentenced to the period already undergone by him, if he is on bail, his bail bonds shall continue for a period of six months from today in view of Section 437-A of Cr.P.C. and if he is in jail, he shall tie released forthwith provided he is not required to be detained in connection with any other offence. Appeal Partly Allowed.