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2014 DIGILAW 267 (CHH)

Santosh Kumar v. State Of Chhattisgarh

2014-07-15

NAVIN SINHA, RANGNATH CHANDRAKAR

body2014
JUDGMENT : Navin Sinha, J. 1. The present appeal arises from judgment dated 27.11.2009 passed by the 2nd Additional Sessions Judge, F.T.C. Mungeli, District Bilaspur in Sessions Trial No. 62 of 2009. The two appellants, son and father, stand convicted under section 302/34 of the Indian Penal Code to undergo life imprisonment and fine of Rs. 2,000/- with directions to undergo rigorous imprisonment for one year in the event of failure to pay fine. The F.I.R., marked as Exhibit P. 19 was instituted on 24.8.2009 at 12:30 pm under Sections 302, 34of the Indian Penal Code by PW 6, Dukalu, brother of appellant No. 2, registered as Mungeli P.S. Case No. 269 of 2009. It stated that the house of his elder brother, appellant number 2, was situated adjacent and there was a boundary dispute between them. On the day of the occurrence while the mason was working, the appellants accompanied by Pappu, son of appellant No. 1 came at about 11:30 a.m. and objected to the construction. Altercation ensued. Appellant No. 1, nephew of the informant, was armed with "Tangia", appellant No. 2 and the son of appellant No. 1 were armed with lathi. They assaulted Komal Das, son of the informant, who fell on the ground and died. The accused ran away. The occurrence was also witnessed by PW 7, Dhiren Kumari, daughter of deceased, PW 8 Shiv Kumari, wife of the deceased, and PW 1 the Mason Bhanu Prasad. 2. The appellants were arrested the same day in the evening and on their confessions, Exhibits P5, P6 the "Tangia" and lathis were recovered and seizure memos prepared marked as Exhibits P8 and P9, witnessed by PW 2, Surya Kant and PW 3, Aman. The body of the deceased Komal Das was sent for postmortem. The report marked Exhibit P14, reads as follows:-- (i) Incised wound on the left cheek and below left year size 9 c.m. into 3 c.m. into 3 c.m. Mandible bone fracture. (ii) Incised wound on the left temporal area of head size 3 c.m. into 2 c.m. into 2 c.m. (iii) Incised wound occipital area of head size 1 c.m. into .5 c.m. into .5 c.m. 3. The Doctor opined that "cause of death" is due to excessive hemorrhage and the head injury leads to coma and death further opining that death had occurred within 24 hours, was homicidal in nature. 4. The Doctor opined that "cause of death" is due to excessive hemorrhage and the head injury leads to coma and death further opining that death had occurred within 24 hours, was homicidal in nature. 4. The trial of Pappu, son of appellant No. 1 was separated as he was a juvenile. 5. PW 1, Bhanu Prasad stated that he left the place after altercation started and did not witness any assault by the appellants. PW 2 and PW 3 proved the confession of the two appellants as also recovery of the weapons of offence based on the same. PW 4, Dr. Vibha Sindoor, proved the postmortem report. She stated that in her opinion the deceased died because of excessive bleeding caused due to head injury. It was also stated that death may not be occasioned by mandible fracture. No fracture was found in the temporal and parietal region. The nerves below the same had also not been affected. No injuries were found on any vital part. Death had occurred account of excessive bleeding. If blood transfusion had been provided immediately life could have been saved. 6. PW 6, Dukalu, deposed that he had witnessed the assault on coming out of his house after he heard commotion. Appellant No. 1 assaulted the deceased with an axe while appellant No. 2 assaulted with lathi causing injuries on the head, neck, ear, legs and all over the body. Acknowledging the relationship between the parties he stated of the boundary dispute between them and a panchayati held days earlier. PW 7, Dhiren Kumari, daughter of the deceased deposing of boundary dispute stated that appellant No. 1 assaulted with "Tangia" causing injuries on the ears and neck while others assaulted with lathi. PW 8, Shiv Kumari, wife of the deceased also deposed regarding the boundary dispute confirming that appellant No. 1 assaulted with "Tangia" and appellant No. 2 with lathi. PW 9, the officer-in-charge proved the F.I.R., place of occurrence, recording the confession of the appellants and recovery of the "Tangia" and lathi. 7. The statement of the appellants was recorded under Section 313 Cr.P.C. They denied the assault or causing death. 8. Shri Arun Kochar, learned counsel for the appellants submitted that the Doctor who held the postmortem did not find any lathi injuries on the person of the deceased. 7. The statement of the appellants was recorded under Section 313 Cr.P.C. They denied the assault or causing death. 8. Shri Arun Kochar, learned counsel for the appellants submitted that the Doctor who held the postmortem did not find any lathi injuries on the person of the deceased. On the contrary in paragraph 7 it was specifically stated that the nature of injuries found on the person of the deceased could not be caused by lathis. The embellishment in evidence by PW 6, PW 7 and PW 8 of assault by him with lathi is not supported by medical evidence. He cannot be classified as an assailant by any reasoning but was only present during the construction with no overt act attributed to him. His conviction is therefore not sustainable. The parties were related to each other residing adjacent to each other. There was a boundary dispute between them after partition, a very natural rural phenomenon. There had been panchayati days earlier. An altercation ensued during laying of column during construction of the boundary wall. The assault by appellant No. 1 was not premeditated but on the spur of the moment. "Tangia" is an agriculturist instrument and not a weapon of assault. If the appellant No. 1 actually wished to do away with the deceased he would have assaulted with a more serious deadly weapon or at least the assault would have been more murderous to ensure that death was instantaneous. The Doctor had deposed that the injuries were not sufficient to cause death but that death occurred due to excessive bleeding and lack of blood transfusion. The conviction of appellant No. 1 deserved to be under Section 304 Part II I.P.C. Reliance was placed on Panchaiah Vs. State of Karnataka : (1994) Supp 2 SCC 235 and Sarman Vs. State of M.P. : (1993) Supp 2 SCC 356. 9. Ms. Pushpa Dwiwedi, learned Panel Lawyer for the State supported the conviction of the appellants urging the presence of three eyewitnesses and also contending that blood had been found on the lathi also. There were three incised wounds on the deceased by a sharp cutting weapon supporting the theory that appellant No. 1 intended to do away with the deceased. 10. We have considered the submissions and perused the evidence. 11. There were three incised wounds on the deceased by a sharp cutting weapon supporting the theory that appellant No. 1 intended to do away with the deceased. 10. We have considered the submissions and perused the evidence. 11. The Trial Judge appears to have been overawed by the presence of three eye witnesses to conclude omnibus severity of assault causing death. There is no discussion with regard to the medical evidence in the postmortem report and the deposition of the Doctor. Only three incised wounds were found attributed to sharp cutting instrument, there were no lacerated wounds which could be caused by lathis. The Doctor had opined that the three injuries could not be caused by lathis. The deposition of the Doctor that death was caused due to excessive bleeding and that if blood transfusion could have been done, the deceased would have survived finds no discussion. The mere fact that appellant No. 1 assaulted thrice cannot suffice to hold that he intended to cause death. Shri Kochar has aptly relied upon Sarman : (1993) Supp 2 SCC 356 (supra) in which it was noticed inter-alia that causing of incised wounds leading to bleeding alone were not sufficient to attract Section 302 I.P.C. In Panchaiah: (1994) Supp 2 SCC 235 (supra), it was observed that in a case of previous enmity if death was intended the assault had to be premeditated and would have been inflicted with more intensity, if the head injury resulted in extravasation of blood leading to death conviction under Section 302 was not sustainable. 12. The need for appropriate sentencing under Section 302 I.P.C. or Section 304 Part II of I.P.C. in the given facts of a case was considered in Gurmukh Singh Vs. State of Haryana : (2009) 15 SCC 635 as follows:-- "5. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. State of Haryana : (2009) 15 SCC 635 as follows:-- "5. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behavior of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 34. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 13. Applying the aforesaid test, we are satisfied that justice demands the conviction of appellant No. 1 be ordered for ten years under Section 304 Part II of I.P.C. from Section 302. We order accordingly. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 13. Applying the aforesaid test, we are satisfied that justice demands the conviction of appellant No. 1 be ordered for ten years under Section 304 Part II of I.P.C. from Section 302. We order accordingly. He shall be entitled to the benefit of Section 428 Cr.P.C. Appellant No. 2 shall be set at liberty and released from custody forthwith if he is not wanted in any other case. The appeal is allowed.