Chattisgarh High Court
Dheeraj Kumar Nag vs State Of Chhattisgarh on 24 February, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 574 of 2014
1. David Chalki S/o Dr. Surendra Chalki Aged About 25 Years Caste
Mahara, Profession- Driver, R/o Madiya Chowk, Near Kumharpara,
Sulabh Complex, Jagdalpur, Thana Bodhghat, Jagdalpur, District-
Bastar, C.G.
2. Sunder Lal Thakur S/o Kishori Lal Thakur Aged About 28 years, Caste-
Gond (Christian), Profession- Driver, R/o Madiya Chowk, Near
Kumharpar, Sulabh Complex, Jagdalpur, Thana Bodhghat, Jagdalpur,
District-Bastar, C.G.
---- Appellant
Versus
State of Chhattisgarh, Through : Police Station, Bodhghat, Jagdalpur,
District- Bastar, Chhattisgarh.
---- Respondent
AND
Criminal Appeal No.644 of 2014
Dheeraj Kumar Nag S/o Dhaniram Nag Aged About 24 Years,
Occupation- Motor Driver, R/o Madiya Chowk Kumhaar Para, Near
Sulabh Complex Jagdalpur, P.S. Bodhghat, Jagdalpur District- Bastar
State C.G.
---- Appellant
Versus
State Of Chhattisgarh Through Aarakshi Kendra Bodhghat Jagdalpur
Distt. Bastar, State C.G.
---- Respondent
For Appellants : Mrs. Savita Tiwari with Ms. Sameeksha
(in Criminal Appeal No.574/2014) Gupta, Advocates.
For Appellant : Mr. Santosh Bharat & Mr. Vikas A.
(in Criminal Appeal No.644/2014) Shrivastava, Advocates.
For Respondent/State : Mr. Anmol Sharma, Panel Lawyer.
For Objector : Mr. Kunal Das, Advocate.
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D.B.:- Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
Order on Board
Per Rajendra Chandra Singh Samant, J.
24/02/2022
1. Both the appeals are being heard and decided by this common judgment as these appeals have arisen from common judgment of conviction and order of sentence dated 13.05.2014, passed by the Court of learned Sessions Judge, Jagdalpur, District- Bastar (C.G.) in Sessions Trial No.112/2013, convicting the appellants under Section 302/34 of Indian Penal Code sentencing him to undergo life imprisonment (Till death) along with fine of Rs.5000/- each.
2. According to the prosecution case, on 26.08.2013 at about 09:00 PM, the complainant Sanjay Kumar Gupta (P.W.-1) and Hitendra Kumar Bholo (deceased) both were present on the spot of incident drinking water. One boy who was standing nearby came to them and asked them to go away and also threatened them. Hitendra Kumar Bholo (deceased) started arguing with that boy and the boy slapped the deceased. Subsequent to that Hitendra Kumar Bholo (deceased) and that boy manhandled with each other. One another boy came to the spot to help the other boy, who was manhandling with the deceased, calling him with his name as 'David'. During manhandling all three fell down. Sanjay Kumar Gupta (P.W.-1) attempted to intervene and it was during that time Hitendra Kumar Bholo (deceased) stabbed one of the boys with a knife. Subsequent that the one of the boys- David and one another both started beating Hitendra Kumar Bholo by banging his head on the road and kicking him on his head. One another boy came and assisted the others in beating the deceased. The deceased was badly beaten. The boy who was stabbed was taken to the hospital. Then Sanjay Kumar Gupta (P.W.-1) lodged the F.I.R. vide Ex.P/1 on the spot. On the basis of which, the offence under Section 307 read with Section 34 of Indian Penal Code was registered. Hitendra Kumar Bholo (deceased) succumbed to the injuries and died on 26.08.2013. Morgue intimation Ex.P/29 was recorded on the basis of the intimation received from the Police Outpost, Maharani Hospital, Jagdalpur.
3. The offence registered was converted into offence of murder. Inquest procedure was conducted on the body of the deceased vide Ex.P/6. Crime Details Form was prepared vide Ex.P/2. Nazari Naksha was prepared vide Ex.P/4. The dead body of the deceased was subjected to postmortem examination. Dr. Pawan Tekade (P.W.-12) vide his Ex.P/8 opined that the death of the deceased was homicidal in nature. The police has conducted the further investigation in which the appellants were apprehended and the test identification parade of appellant- Sunder Lal Thakur was conducted Ex.P/3. Viscera of the deceased was preserved by the doctor conducting postmortem examination which was seized vide Ex.P/9. The seized articles were sent for F.S.L. examination. One F.I.R. had been lodged regarding the same incident by the appellant- Dheeraj Kumar Nag which was unnumbered and on the basis of which, the numbered F.I.R. Ex.P/27 registered. The investigation of this F.I.R. was terminated because of the death of the victim in the case. In further investigation, the police have recorded the statement of the witnesses under Section 161 of Cr.P.C. After completion of investigation, charge-sheet was filed before the concerned Court.
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4. The learned trial Court framed charge against under Section 302 read with Section 34 of I.P.C. filed against the appellant. The appellants denied the charges. The prosecution examined 16 witnesses in all. On completion of prosecution evidence, the appellants/accused persons were examined under Section 313 of Cr.P.C. The appellants denied all the incriminating evidence present against them and made a statement of their innocence and false implication. No witness was examined in defence. The trial Court after giving opportunity of hearing to the prosecution and defence has passed the impugned judgment.
5. It is submitted by the learned counsel for the appellants (in Criminal Appeal No.574/2014), that conviction against the appellants is totally erroneous and bad in law. The evidence of prosecution had not been of quality beyond reasonable doubt. It is submitted that regarding the same incident appellant- Dheeraj Kumar Nag has lodged one F.I.R. mentioning that it was the Hitendra Kumar Bholo (deceased) who had first inflicted injury with a knife on the back of the appellant- Dheeraj Kumar Nag. On the basis of this information, the police have registered the offences under Section 324 of I.P.C. It is submitted that it is itself suggestive that deceased himself was the aggressor and that the appellants had defended themselves. It was the case of sudden fight and also of provocation given by the deceased himself. Hence, even if this Court is not inclined to acquit the appellants, the case against the appellants would not be covered under Section 302 of Indian Penal Code because clearly it is a case covered under the Exception 4 of Section 300 of Indian Penal Code. Hence, it is prayed that the conviction and sentence against the appellants may be reduced.
6. Reliance has been placed on the judgments of Supreme Court in the cases of Ram Lal Vs. Delhi Administration reported in (1973) 3 of Supreme Court Cases 466, Khokan @ Khokhan Vishwas Vs. State of Chhattisgarh reported in AIR 2021 SC 939, the judgment of this Court in Ghasiya Rathiya and Another Vs. State of Chhattisgarh in Criminal Appeal No.205/2014, passed on 28.03.2018, Anujram Saygore and Others Vs. State of Chhattisgarh reported in 2017 Cri.L.J. (NOC) 37 (Chh.), Ajay Singh and Another & Etc. Vs. State of Chhattisgarh & Another reported in AIR 2017 Supreme Court 310, State of U.P. Vs. Indrajeet Alias Sukhatha reported in AIR 2000 Supreme Court 3158, Poonam Vs. Municipal Corporation of Delhi and Others reported in AIR 2000 Supreme Court 3161, Sandhya Jadhav (Smt.) Vs. State of Maharashtra reported in (2006) 4 Supreme Court Cases 653, Pappu Vs. State of M.P. reported in (2006) 7 Supreme Court Cases 391, Alembic Glass Industries Ltd. Vs. Commissioner of Central Excise reported in (2006) 7 Supreme Court Cases 395, Ravi Kumar Vs. State of Punjab reported in (2006) 1 Supreme Court Cases 738,
7. Learned counsel for the appellant (in Criminal Appeal No.644/2014) adopts the arguments and submits that according to the evidence present in the case the offence of murder against the appellants is not made out. Hence, reduction of conviction and sentence is prayed for.
8. Learned State counsel opposes the submissions and submits that the prosecution has proved its case beyond reasonable doubt. Eye witness Sanjay Kumar Gupta (P.W.-1) has fully supported the prosecution case narrating the details of the incident. Although the other eye witnesses -6- Anil Chalki (P.W.-6), Irshad Ali (P.W.-7) and Ishwar Das (P.W.-14) have turned hostile but the quality of evidence given by Sanjay Kumar Gupta (P.W.-1) was good enough to hold the conviction against the appellants. It is also submitted that the according to the postmortem report vide Ex.P/8, the deceased had suffered 30 injuries, on the basis of which, it is sufficient to hold that the appellants had intention to cause death of the deceased. Hence, no case is made out either for acquittal or for reduction in conviction or sentence, therefore, it is prayed that both the Appeals may be dismissed.
9. Learned counsel for the objector adopts the arguments advanced by the learned State counsel and submits that it is a case of brutal murder, in which the deceased was badly beaten by all three appellants by forcibly striking his head on the hard surface of the road and also by making use of hands, fist and kicks. Therefore, the conviction against the appellants is fully sustainable. Hence, both the Appeals may be dismissed.
10. Heard learned counsel for the parties and perused the documents present on record.
11. Considered on the submissions, there appears to be no dispute regarding the homicidal death of the deceased, which has been proved by Dr. Pawan Tekade (P.W.-12). On the basis of the postmortem report Ex.P/8, the act of the appellants is required to be considered.
12. Sanjay Kumar Gupta (P.W.-1) is the only witness, who has supported the prosecution case. He has stated about the incident in which, the deceased had an argument with the appellants- David Chalki and Sunder Lal Thakur. Subsequent to which, appellant- Dheeraj Kumar Nag came to intervene. All of them manhandled each other and it was during this time, the deceased stabbed the appellant- Dheeraj Kumar Nag with a knife on his back. Subsequent to which, all the appellants joined and thrashed the deceased brutally with hands, fist and kicks. F.I.R. has been lodged by Sanjay Kumar Gupta (P.W.-1). In cross- examination, he has remained firm on this statement that it was the act of the appellants which has caused death of the deceased, which is further confirmed and corroborated by the evidence of Dr. Pawan Tekade (P.W.-12).
13. It is the prayer of the appellants that the present case is fit to be converted, the scrutiny of the evidence is made on this point. According to the deposition of the Sanjay Kumar Gupta (P.W.-1), it appears that there had been a free fight between the appellants and the deceased, who were man handling each other. It was the deceased who made the first assault by stabbing the appellant- Dheeraj Kumar Nag with a knife. This act of the deceased may be regarded as an act, which may have given sudden provocation to the appellants. As per the statements regarding the identification of the appellants, it appears that the appellants and the deceased and complainant- Sanjay Kumar Gupta (P.W.-1) were not acquainted with each other, therefore, their appears to be no question of motive present in the commission of offence. Therefore, it cannot be said that the appellants had any intention to cause death of the deceased. However, they have reacted to the act of the deceased in such a brutal manner by beating and thrashing him mercilessly, causing him number of injuries, which was numbering to 30 injuries on the body. Hence, considering these facts, we are of the view that the ingredients to complete the offence punishable under Section 302 of Indian Penal Code has not been made out by the prosecution in this case. On the other hand, it is a case which is covered under the Exception No.4 to Section 300 of Indian -8- Penal Code.
14. After considering on the submissions, and on the basis of the discussions made here-in-above and also the conclusions drawn, the present Appeal is allowed with some modifications. The conviction of the appellants in both the cases under Section 302 read with Section 34 of I.P.C. is modified to conviction under Section 304 Part II of I.P.C. Appellants- David Chalki and Dheeraj Kumar Nag are in jail since 29.08.2013 and appellant- Sunderlal is in jail since 09.09.2013. The period of detention that has been already undergone by the appellants in jail appears to be sufficient for the purposes of the punishment in this case, hence, it is ordered that all the appellants be sentenced with period of detention already undergone by them in jail.
15. With these observations, both these Criminal Appeals stand disposed off.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Monika