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2017 DIGILAW 220 (CHH)

KURAMI GANGA v. STATE OF CHHATTISGARH

2017-06-05

MANINDRA MOHAN SHRIVASTAVA, SANJAY AGRAWAL

body2017
JUDGMENT : MANINDRA MOHAN SHRIVASTAVA, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 17.12.2012 passed by the learned Sessions Judge, South Bastar, Dantewada, in Sessions Trial No. 155 of 2010 by which the appellant has been held guilty for commission of an offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentenced to life imprisonment. 2. The prosecution story, as unfolded from the records of the case, FIR and the charge sheet and also the impugned judgment is that on 14.03.2010, at about 9-10 pm, the appellant, his wife-Kurami Hidme (the deceased) and many other villagers met in the house of one Smt. Kurami Hurrey (PW-3) and all of them consumed Tadi (locally made intoxicant). After consumption of the liquor, the deceased did not proceed to her house and went to sleep in the house of Smt. Kurami Hurrey (PW-3) only which annoyed the appellant. When the deceased did not proceed to her house, the appellant gave her blow on the right temporal part of the head resulting in fatal injury and death. 3. Merg intimation (Exhibit P-5) was recorded at 9:40 pm on 15.03.2010 in Police Station Sukma on the information of Kurami Deva (PW-1) that the appellant, the deceased and others consumed liquor. The deceased being in a highly intoxicated state, slept in his house and when the appellant asked her to go back home which was not accepted, the appellant gave a blow on the temporal part of the head of the deceased due to which she died. First Information Report (Exhibit P-6) of the incident was already recorded at 09:35 pm by the police of Police Station Sukma on the report of Kurami Deva (PW-1) that the appellant had murdered his wife. After inquest of the dead body, the same was sent for postmortem. Dr. R.P.S. Paikra (PW-8) conducted the postmortem in which he opined that the death was homicidal in nature. After completion of the investigation, charge sheet was filed against the appellant alleging commission of the offence under Section 302 IPC. On the basis of materials contained in the charge sheet, the learned trial Court framed charges against the appellant alleging commission of offence under Section 302 IPC. The appellant abjured guilt and demanded trial. The appellant having abjured the guilt was subjected to trial. 4. On the basis of materials contained in the charge sheet, the learned trial Court framed charges against the appellant alleging commission of offence under Section 302 IPC. The appellant abjured guilt and demanded trial. The appellant having abjured the guilt was subjected to trial. 4. In order to prove its case, the prosecution examined as many as 10 witnesses. Thereafter, the appellant was examined under Section 313 Cr.PC in respect of incriminating evidence and circumstances appearing against him led by the prosecution. The appellant denied having committed any offence and stated that he has been falsely implicated. No defence witness was examined. Relying upon the evidence led by the prosecution, the learned Trial Court convicted and sentenced the appellant, as described above. 5. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argues that the appellant has been convicted only on suspicion which, however grave, cannot take place of truth. He submits that there is no eyewitness to the incident. The prosecution has failed to prove circumstantial evidence leading to the only conclusion of guilt by excluding every hypothesis of innocence of the appellant. He further argues that even according to the prosecution, the dead body of the deceased-Kurami Hidme was found in the room of the house of Kurami Hurrey (PW-3) and is not a case where the deceased was in the exclusive company of the appellant in her own house. There were number of persons who had consumed liquor and in the absence of there being any direct evidence of the appellant having inflicted any injury, mere presence of the appellant at the spot where the dead body was found lying, without there being any strong motive for commission of any such overt act, it is highly doubtful whether the injury was inflicted by the appellant who was the husband of the deceased. It is next contended that the prosecution has led evidence that the appellant and all the persons present in the house of Kurami Hurrey (PW-3) including the deceased were drinking. There is nothing to show that the appellant had any motive to kill his own wife with whom he was enjoying drink in a meeting with other villagers. It is next contended that the prosecution has led evidence that the appellant and all the persons present in the house of Kurami Hurrey (PW-3) including the deceased were drinking. There is nothing to show that the appellant had any motive to kill his own wife with whom he was enjoying drink in a meeting with other villagers. Lastly, it is submitted that in any case, what is reflected from the records of the case is that in a sudden moment of heat because of the resistance offered by the deceased to go back home along with the appellant, one single blow was inflicted, and that too from the blunt side of the axe. Therefore, it cannot be said that there was any intention to kill and therefore, in these circumstances, at the most, a case of commission of offence under Section 304-II IPC is made out and as the appellant has already undergone more than seven years of rigorous imprisonment, he may be released. 6. On the other hand, learned counsel for the State/Respondent supports the judgment of conviction and order of sentence and submits that even if there is no direct evidence, the act of infliction of injury, the surrounding circumstances proved by the prosecution unmistakably indicate that it was the appellant alone who gave blow to his wife when she refused to go back home. The appellant was with the deceased in the room. It was for the appellant to explain as to how his wife sustained such a fatal injury, which is a strong circumstance against him in view of the provisions contained in Section 106 of the Evidence Act. He further submits that as the appellant had given a blow on the vital part of the head by a dangerous weapon like axe, it would be a case of intention to cause death not covered by any of the exceptions under Section 300 IPC. 7. The present is a case based only on the circumstantial evidence as there is no direct evidence of infliction of injury by the appellant on the deceased. As far as the nature and cause of death of the deceased is concerned, the evidence of Dr. R.P.S. Paikra (PW-8) proves that Kurami Hidme died of injuries. 7. The present is a case based only on the circumstantial evidence as there is no direct evidence of infliction of injury by the appellant on the deceased. As far as the nature and cause of death of the deceased is concerned, the evidence of Dr. R.P.S. Paikra (PW-8) proves that Kurami Hidme died of injuries. Upon examination of the injuries during postmortem, the following injuries were stated to have been found in the evidence which is reproduced below: 02- ckgzk ijh{k.k djus ij 'ko fpr voLFkk esa Fkh] mlds 'kjhj esa vdM+u ekStwn Fks] mlds mijh Hkqtk ,oa fupyh Hkqtk esa vdM+u Fkh] mlds psgjs ij [kwu tek gqvk /kCck ik;k x;k Fkk] mlds nksuksa vka[ksa can Fkh] eqag v/kZ[kqyk ik;k x;k Fkk] mldk isV Qqyk gqvk FkkA mlds nkfgus VsEiksjy cksu esa lwtk gqvk ,d pksV ik;k x;k Fkk] ftldk vkdkj 2 xq.kk 2 FkkA blds vfrfjDr 'kjhj ij vkSj dksbZ ckgzk pksaV ugha FkhA 03- vkarfjd ijh{k.k ij eSaus ik;k fd mlds nkfgus VsEiksjy cksu esa QzsDpj ik;k x;k Fkk] f>Yyh o efLr"d datLVsM+ Fkk] mlds f>Yyh esa [kwu tek gqvk Fkk] nkfgus QsQM+k] cka;s QsQM+k] o`gn okfgdk] vkrksa ds f>Yyh ds vfrfjDr fIygk ,oa xqnkZ dapLVsM+ ik;k x;k FkkA mldk isV [kkyh ik;k x;k Fkk rFkk vydksgy dh xa/k vk jgh FkhA NksVh vkar ,oa cM+h vkar esa xSl gksuk ik;k x;k FkkA The opinion of the Doctor formed on the basis of postmortem and examination of injuries was as follows: 05- esjs erkuqlkj e`frdk ds e`R;q ds dkj.k flj esa nkfgus VsEiksjy ds QzsDpj gksus ds vR;kf/kd jDr lzko gksus ds dkj.k gqbZ FkhA ftldh izd`fr gR;kRed Fkh] tks esjs ijh{k.k ls 16 ls 24 ?kaVs iwoZ dh Fkh] esjs }kjk nh xbZ ijh{k.k fjiksVZ iz0ih0 04 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA 8. The aforesaid aspect of evidence of the Doctor could not be impeached in his cross-examination and after having gone through the contents of the postmortem report (Exhibit P-4) and the evidence of the Doctor (PW-8) we find ourselves convinced to hold that the death of the deceased was homicidal in nature. At this juncture, we would like to consider the submission of the learned counsel for the appellant that the injury could have been caused due to fall also, which has been illustrated in para 6 of the cross-examination of the Doctor. At this juncture, we would like to consider the submission of the learned counsel for the appellant that the injury could have been caused due to fall also, which has been illustrated in para 6 of the cross-examination of the Doctor. To this, our response would be that whether in a case, the death is homicidal or otherwise, would depend upon a host of circumstances and the evidence on record and merely because there was possibility of injury likely to be sustained on account of fall, one cannot jump to the conclusion that the possibility of homicidal death is completely excluded. 9. Kurami Deva (PW-1) is the person on whose information merg intimation (Exhibit P-5) was recorded and at whose instance, FIR (Exhibit P-6) was also recorded. In the FIR (Exhibit P-6), it has been stated that the first informant, the appellant and his wife i.e. the deceased Smt. Kurami Hidme and other persons sat together at about 10 pm and all of them consumed liquor (Tadi is the local name). Thereafter, the deceased who happens to be the aunt of the first informant, slept there in the house and after sometime when he heard a sound of hitting, he went to the room and when he entered, he found that his aunt was lying and bleeding. He has stated that the Kurami Ganga left the axe and ran away from the room. In the merg intimation (Exhibit P-5) which was recorded after about 5 minutes, it has been recorded that after consumption of liquor, Kurami Hidme, in a highly intoxicated state slept in the room and the appellant-Kurami Ganga was insisting on her to go back home and when she did not move, the appellant gave a blow on the temporal part of the head of his wife-Kurami Hidme due to which she died. In the court statement of this witness also, it has been stated that the appellant, his wife Kurami Hidme, the witness and many other villagers sat together in the night at about 9 pm and all of them consumed liquor. Thereafter, his son informed that the appellant assaulted his wife-Kurami Hidme and thereafter, when they went to the room, they found that Kurami Hidme was bleeding and lying dead. This witness has clearly stated that he himself has not seen the incident. According to him, he was informed by his son-Kurami Bhima (PW-9). Thereafter, his son informed that the appellant assaulted his wife-Kurami Hidme and thereafter, when they went to the room, they found that Kurami Hidme was bleeding and lying dead. This witness has clearly stated that he himself has not seen the incident. According to him, he was informed by his son-Kurami Bhima (PW-9). Kurami Bhima (PW-9) however, states that he was informed by Kurami Deva (PW-1) regarding the incident that the appellant had assaulted his wife by axe and killed her. It is also noteworthy that Kurami Deva (PW-1) in para 7 of his evidence has stated that he does not know why it has not been recorded in his statement that the appellant was present in the room. This shows that PW-1 was confronted with his case diary statement which has also been perused by us. It is stated that he saw the appellant running from the room where the deceased was lying dead. But this fact has not been stated by this witness in his court statement that when he went to the room, he saw the appellant running away from the spot leaving behind the axe. 10. Kurami Bhima (PW-9) states regarding the incident only on the basis of what was told to him by Kurami Deva (PW-1). Kurami Mangli (PW-2) states that he alongwith the appellant, his wife and other persons had consumed liquor and after sometime, Kurami Hidme went to sleep in the room of the house of Kurami Hurrey (PW-3). He then states that when they heard of a sound, Kurami Deva (PW-1) went there and saw that Kurami Hidme was lying dead, this witness has also admitted that he has not seen the appellant assaulting the deceased. 11. Kurami Hurrey (PW-3) has also given a similar story of consumption of liquor together including the appellant and his wife. In para 3 of her evidence, she states that after consumption of liquor, the appellant went inside the room where his wife was sleeping and then after sometime, Kurami Bhima (PW-9) informed that the appellant had assaulted Kurami Hidme by an axe due to which she died. Thereafter, they went to that room and saw the deceased lying dead. This witness also admits that she has also not seen the incident. She also admits that the axe kept in the room belonged to her. Thereafter, they went to that room and saw the deceased lying dead. This witness also admits that she has also not seen the incident. She also admits that the axe kept in the room belonged to her. Kurami Kosa (PW-4) has not supported the case of the prosecution and has been declared hostile. 12. From the entire evidence of the prosecution, it is proved that the appellant alongwith his wife-Kurami Hidme, Kurami Deva (PW-1), Kurami Mangli (PW-2) and Kurami Hurrey (PW-3) and other residents of the village consumed liquor in the night and they all were in an intoxicated condition. Not only the appellant, but his wife-Kurami Hidme was also intoxicated. The evidence on record also shows that as the deceased was in a state of heavy drunkenness, she slept in the house of Kurami Hurrey (PW-3) only. There is also an evidence to prove that the appellant also went to the same room. This is quite natural because the appellant happens to be the husband of the deceased and according to evidence on record, after the gathering was over, the members of the gathering dispersed and as Kurami Hidme was in a drunken state, she preferred to sleep in the room of the house of Kurami Hurrey (PW-3) only and the appellant being her husband followed her in the room. 13. Even though there is no direct evidence of the appellant having inflicted injury on the deceased, the proved circumstance of the case goes to show that the appellant and his wife along with others had consumed liquor and then, firstly the deceased went to the room to sleep and then the appellant followed her and entered the room. Thereafter, according to the witnesses, they heard the sound of beating and then the dead body of Kurami Hidme was found in the room and the appellant was not there. From the evidence on record taken together with the medical evidence, nature of injuries, the circumstances woven together goes to show that after consumption of liquor, the appellant and his wife were in the same room and then the deceased was found bleeding and lying dead in the room. The postmortem report (Exhibit P-4) shows that because of severe blow on the temporal region of the head, the deceased sustained fatal injury and died. The postmortem report (Exhibit P-4) shows that because of severe blow on the temporal region of the head, the deceased sustained fatal injury and died. Therefore, it is a case of homicidal death and not a case of death due to any accident resulting in injury. 14. The entire case of the prosecution which is reflected from the FIR (Exhibit P-6), merg intimation (Exhibit P-5), statement of prosecution witnesses is that in the state of drunkenness when the wife of the appellant slept in the house of Kurami Hurrey (PW-3) and refused to go back home, the appellant suddenly, in a heat of moment, gave a blow with the help of an axe which was lying there in the room. Kurami Hurrey (PW-3) has clearly stated in para 7 of her evidence that the axe belongs to her. This means that the appellant had neither come armed with any weapon nor he had chased the deceased anywhere with a weapon in his hand. Moreover, there does not appear any motive for the appellant to murder his own wife immediately after he had consumed liquor with his wife, friends an hour before in a cordial atmosphere. Overwhelming evidence led by the prosecution itself proves that the appellant was in a state of intoxication. Coupled with this, we find that there was only one single blow on the body of the deceased, and that too, from the blunt side of the axe. All these evidences taken together leads us to conclude that there was no intention to cause death and in the heat of moment, when the deceased refused to go back home along with the appellant, the appellant, in a state of intoxication, picked up the axe which was lying there in the room and gave a blow to his wife which unfortunately proved to be fatal. Therefore, in these circumstances, we are convinced that interest of justice would be served if the conviction of the appellant is altered to one under Section 304-II IPC instead of Section 302 IPC and we accordingly do so by interfering with the impugned judgment of conviction and order of sentence only to the extent of altering the conviction under Section 302 IPC to Section 304-II IPC. Over all circumstances and the nature of incident also convince us to convict the appellant for the period of sentence already undergone by him. Over all circumstances and the nature of incident also convince us to convict the appellant for the period of sentence already undergone by him. We are informed that the appellant has undergone more than seven years of rigorous imprisonment. 15. The appeal is partly allowed in the manner and to the extent indicated above. The appellant be set at liberty forthwith.