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2016 DIGILAW 281 (CHH)

Mayaram Vishwakarma v. State of Chhattisgarh

2016-08-10

C.B.BAJPAI, PRITINKER DIWAKER

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JUDGMENT : Pritinker Diwaker, J. This appeal has been filed against the judgment of conviction and order of sentence dated 10-9-2004 passed by Additional Sessions Judge, Rajnandgaon, in Sessions Trial No. 121/2004 convicting the accused/appellant under Section 302, IPC and sentencing him to undergo imprisonment for life with fine of Rs. 2000/-, plus default stipulation. 2. Name of the deceased in the present case is Rajwati wife of the accused/appellant. It is alleged that on 26-1-2004 the accused and the deceased both had consumed liquor together and while returning from the market on bicycle, on account of being under the influence of liquor, the deceased got down and sat by the side of the road. It is alleged that when she did not pay heed to the words of the accused to get up and leave for home, he thrashed her with leg and fist and holding by hair hit her head against the street which he did for two-three times as a result of which profuse bleeding started resulting in her death. Merg intimation (Ex. P-l) was recorded on 27-6-2004 at the instance of village Kotwarin Rambai (PW-1). After giving notice Ex. P-2, inquest was done vide Ex. P-3 and then the body was sent for post-mortem examination which was conducted by Dr. N. K. Verma (PW-7) who gave his report Ex. P-7. After merg inquiry, FIR Ex. P-6 was registered against the accused/appellant under Section 302, IPC and then on completion of investigation, charge-sheet was filed against him under Section 302, IPC followed by framing of charge accordingly. 3. In order to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined 11 witnesses. Statement of the accused/appellant under Section 313, Cr. P.C. was also recorded in which he denied his guilt and pleaded innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/ appellant as mentioned above. 5. Statement of the accused/appellant under Section 313, Cr. P.C. was also recorded in which he denied his guilt and pleaded innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/ appellant as mentioned above. 5. Counsel for the accused/appellant submits as under: (i) that the accused/appellant has been convicted merely on the basis of statement of Sukhram (PW-4) which considering a number of in consistences, is not at all reliable; (ii) that from the evidence of most of the witnesses it is not revealed that the woman who was found on the road was the wife of the accused; (iii) that the Court below has not appreciated the evidence of the doctor (PW-7) conducting the post-mortem examination on the body of the deceased wherein he has clearly stated that the death could be caused on account of repeated all (fall) from height, and in the case in hand also the deceased is said to have fallen from the career of the bicycle and therefore, the possibility of sustaining accidental injury cannot be ruled out; and (iv) that even if the entire case of the prosecution is taken as it is, accused/appellant cannot be convicted under Section 302, IPC and at best his act would fall under Section 304, (Part-I) or 304 (Part-II), IPC. 6. State counsel however supports the judgment impugned and submits that the findings recorded by the Court below are based on due appreciation of the evidence on record and there is no infirmity in the same. According to him, there is no evidence to show that on the date of incident the deceased had consumed liquor. He submits that though Sukhram (PW-4) has been declared hostile, yet in the cross-examination he has categorically stated that he saw the accused beating his wife and hitting her head against the street holding by hair. State counsel further submits that Amar Sai (PW-2), Latiram (PW-3), Nirguram (PW-5) and Hari Singh (PW-8) have also stated that they saw the wife of the accused lying on the road, and being all this the findings of the Court below, according to the State counsel do not suffer from any legal flaw and deserve to be maintained. 7. Heard counsel for the parties and perused the material available on record. 8. Rambai (PW-1) is the witness who lodged the merg intimation Ex. P-1. 7. Heard counsel for the parties and perused the material available on record. 8. Rambai (PW-1) is the witness who lodged the merg intimation Ex. P-1. She is also the witness to inquest Ex. P-3 and spot map Ex. P-4. Amar Sai (PW-2) - the witness to inquest (Ex. P-3), spot map Ex. P-4 and seizure of plain and blood stained soil made under Ex. P-5. This witness has stated that quite often the accused and the deceased used to take the accused and the deceased used to take excessive liquor and that on the date of incident at about 10-11 in the night after hearing the cries of the accused, he went to the spot and saw him weeping looking at his wife who was lying nearby in an injured condition with bleeding from forehead. According to this witness, he asked the accused as to how all that happened but he did not disclose anything to him. Latiram (PW-3) has stated in his Court statement that while going to village Markeli in a jeep, near Kohka turning he saw the wife of the accused lying on the road and when he asked the accused as to what had happened, he did not disclose anything to him, and then on the next day he came to know that she expired. Sukhram (PW-4) - the eyewitness to the incident has stated in his examination-in-chief that on the date of incident at about 5 p.m. when he was getting back home, near village Kohka he saw the accused assaulting his wife and that when he asked him not to do so, he told him to get away, and on the next day he came to know about her death. Though this witness has been declared hostile, in cross-examination he has stated that holding by hair, the accused/appellant was hitting the head of his wife against the ground. He has further stated that the accused/appellant was trashing his wife by leg and fist. Nirguram (PW-5) has stated that he saw the accused standing near his bicycle whereas the deceased was lying on the spot with bleeding injury in the temple. According to this witness, both the accused and the deceased appeared to be under the influence of liquor and that on the next day he heard about the death of the woman. Nirguram (PW-5) has stated that he saw the accused standing near his bicycle whereas the deceased was lying on the spot with bleeding injury in the temple. According to this witness, both the accused and the deceased appeared to be under the influence of liquor and that on the next day he heard about the death of the woman. According to this witness, he had not seen the deceased falling from the bicycle. Ram Singh (PW-6) is the head constable who recorded the merg (Ex.P-1), prepared inquest (Ex. P-3), made seizure vide Ex. P-5 and also registered the FIR (Ex. P-6). Dr. N. K. Verma (PW-7) is the witness who conducted post-mortem examination on the body of the deceased and gave his report Ex.P-7. According to this witness, he noticed the following injuries on the body of the deceased : Two penetrating wounds situated 1 inch lateral to outer canthus of left eye about 1 inch (1) sharp margin -shape about 1 cm x 1 cm x 1 cm (2) sharp margin - shape about 2 cm x 1 cm x 1 cm. One penetrating wound situated at rt. parietal region. Sharp margin, shape about 1 cm x 1 cm x 1 cm. Abrasion mark present over rt. maxillary region. Cause of death according to this witness was excessive bleeding due to hypovolemic shock (Intra cranial haemorrhage). On a specific question put to this witness by the Court regarding mode of death, this witness has categorically stated that the death was homicidal in nature and could be cause on account of repeated fall from height. He has further stated that the injuries noticed by him on the body of the deceased could be caused by fall from carrier of the bicycle also. According to him, no alcohol was noticed by him in the stomach of the deceased. Hari Singh (PW-8) has also stated that he saw the deceased lying on the spot whereas the accused standing nearby had requested him to arrange some shelter for them as his wife being under the influence of liquor was not in a position to walk, and on the next day he came to about the death of the deceased. D. R. Barve (PW-9) is the Patwari who prepared spot map Ex. P-4. T. Xaxa (PW-11) is the investigating officer who has duly supported the case of the prosecution. 9. D. R. Barve (PW-9) is the Patwari who prepared spot map Ex. P-4. T. Xaxa (PW-11) is the investigating officer who has duly supported the case of the prosecution. 9. Evidence available on record thus goes to show that on 26-1-2004 the accused/ appellant beat the deceased and caused number of injuries on her body including head which ultimately resulted in her death. Though Sukhram (PW-4) has been declared hostile yet in his cross-examination he has clearly stated that holding by hair the accused/ appellant was striking the head of the deceased on the ground and was beating her by leg and fist also. There is no doubt that this witness (PW-4) has been inconsistent while stating the things but on material particulars his version is quite trustworthy and gets support from his diary statement also. Amar Sai (PW-2), Latiram (PW-3), Nirguram (PW-5) and Hari Singh (PW-8) have also stated that they saw the accused standing on the spot and the deceased lying there with bleeding injuries on her head. Though the accused/appellant has taken the defence that the death of the deceased was accidental but in view of the categorical statement of the doctor conducting post-mortem examination that the death was homicidal in nature and the injuries present on the body of the deceased could be caused on account of repeated fall from height, this Court finds it very difficult to accept such defence of death being accidental one. Thus complicity of the accused in the crime in question is very much established. 10. Now the next question to be considered by this Court is whether the act of the accused would entail the conviction u/S. 302 or would fall under any of the exceptions to Section 300, IPC? 11. From the record it is apparent that the incident took place on the way when they were returning home from the market after consuming liquor. Some of the witnesses have stated that deceased being under the influence of liquor got down the bicycle and sat on the road and in spite of accused insisting her to accompany him homeward, she did not listen to him and perhaps this enraged the accused where falling in the fit of fury he started beating her severely causing number of injuries including on heard which ultimately proved fatal to her life. Evidence however in no way suggests that there was any intention on the part of the accused to kill his wife and whatever has happened was the outcome of sudden development between the two that too under the influence of liquor. However, the record is suggestive of the fact that while causing injuries, the accused/appellant was very much having the knowledge that the injuries so caused by him could lead to the death of the deceased and therefore, his act would definitely fall within the domain of Exception 4 to Section 300 and make him liable for conviction under Section 304 (Part-II), IPC. So we hold him guilty accordingly. 12. In the result, appeal is allowed in part. Conviction of the accused under Section 302, IPC is set aside and instead he stands convicted under Section 304 (Part-II), IPC and sentenced to undergo RI for seven years. Since he is on bail, he be arrested forthwith and sent to jail to complete the sentence imposed on him. Appeal partly allowed.