Chattisgarh High Court
Sewakram And Another vs State Of Chhattisgarh on 5 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1 of 11
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 349 of 2012
1. Sewakram, S/o Sitaram Diwaker, Aged about- 34 years,
2. Amardas. S/o- Sirdari Diwakar, Aged about- 19 years,
Both are R/o Village Kathiya, P.S. Kharora, District- Raipur,
Chhattisgarh ---- Appellants
Versus
State of Chhattisgarh, Through - P.S. Kharora, District-
Raipur, Chhattisgarh ---- Respondent
For Appellant : Shri Manish Sharma, Advocate
For Respondent : Shri Animesh Tiwari, Deputy Advocate
General
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
05/12/2022
Sanjay K. Agrawal, J.
1) This Criminal Appeal preferred under Section 374 (2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 16.03.2012 passed by Sixth Additional Sessions Judge, Raipur, District- Raipur, Chhattisgarh in Sessions Trial No. 100/2011, whereby the two appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the IPC and sentenced to life imprisonment and fine of Rs.2,000/- each, in default of payment of fine, additional R. I. for 3 months Page 2 of 11 each. They have also been convicted for the offence punishable under Section 7 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter referred to as "the Act, 1954") and sentenced to undergo Simple Imprisonment for 3 months each.
2) Case of the prosecution, in brief, is that on 08.03.2011 at about 8:00 P.M. at village- Kathiya, Police Station- Kharora, District- Raipur, Chhattisgarh, in furtherance of their common intention the appellants hererin along with acquitted co-accused Sirdari and juvenile accused Vishwajeet, on the pretext of treating deceased - Smt. Meena Bai by witchcraft, tied her with nylon rope thereby beaten her by which she suffered grievous injuries and died. It is further case of the prosecution that the deceased was a person of weak mind, as three days prior to the incident i.e. 05.03.2011, dissatisfied with her in-laws, reached to the village Kathiya from Bangoli. Where Baiga of village Kathiya co-accused [Juvenile] Vishwajeet Bhardwaj alongwith present appellants treated the deceased by playing witchcraft in the afternoon, by which the deceased was tied by rope and beaten up by the appellants by which she suffered injuries and died.
3) Complainant- Nanakchand Dahariya (PW/1) lodged Dehati merg intimation in Police Station Kharora vide Ex. P/1. FIR was registered vide Ex.P/10. Investigating Officer Ghanshyam Das Soni (PW/9) reached to the spot, prepared Page 3 of 11 spot map vide Ex.P/3. In the presence of panchas inquest was conducted over dead body of the deceased vide Ex.P/5. On the recommendation of panchas, dead body of the deceased was sent for postmortem vide Ex.P/9, which was conducted by Dr. Azad Ahmad Siddique (PW/11) by his report vide Ex.P/25, where he opined that cause of death was on account of asphyxia due to throtteling and death was homicidal in nature. Pursuant to the memorandum statement of the appellant No.1 Sewakaram Ex.P/11, black coloured nylon rope and articles used in witchcraft were seized vide Ex.P/12 and pursuant to memorandum statement of the appellant No.2 Amardas Diwakar vide Ex.P/13, a bamboo stick, rope and black & white coloured nylon rope were seized vide Ex.P/14. Statements of the witnesses were recorded under Section 161 of the CrPC.
4) After due investigation, the accused/appellants were charge-sheeted for offence under Section 302 read with Section 34 of the IPC and Section 7 of the Act, 1954, before the jurisdictional criminal court and the case was committed to the Court of Sessions for conducting the trial and hearing and disposal in accordance with law. The accused/appellants abjured the guilt and entered into defence.
5) In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 27 documents. The defence has examined none and exhibited Page 4 of 11 two documents which are Ex.D/01- statement of Nanakchand and Ex.D/02 statement of Mahendra Kumar.
6) The trial Court after appreciating oral and documentary evidence available on record, acquitted co-accused Sirdari Diwakar and convicted and sentenced the appellants herein under Section 302 read with Section 34 IPC and Section 7 of the Act, 1954, against which, the instant appeal under Section 374(2) of the CrPC has been preferred.
7) Shri Manish Sharma, learned counsel appearing for the appellants, would submit that the prosecution has failed to prove the offence against the appellants beyond reasonable doubt, therefore, the appellants deserves to be acquitted. In alternative, he would further submit that there is no evidence against the appellants for commission of murder of the deceased. The deceased is said to have been beaten by main accused Vishwajeet (juvenile) and at the most the appellants can be convicted under Section 323 of the IPC. The impugned judgment of conviction and order of sentence is liable to be set-aside.
8) Shri Animesh Tiwari, learned Deputy Advocate General appearing for the State/respondent, would support the impugned judgment and would submit that the appellants have rightly been convicted for the offence under Section 302 IPC and appeal deserves to be dismissed.
9) We have heard learned counsel for the parties and considered their rival submissions made herein-above and Page 5 of 11 also went through the original record of trial Court with utmost circumspection.
10) The first question for consideration would be, whether death of deceased-Meena Bai was homicidal in nature, which has been answered by the learned trial Court in affirmative, relying upon the postmortem report Ex.P/25 wherein Dr. Azad Ahmad (PW/11), who has conducted the postmortem of deceased Meenabai, has opined cause of death on account of Asphyxia due to throttling, which is homicidal in nature. The finding so recorded by the trial Court that death of deceased Meenabai was homicidal in nature, is the correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and it has not been seriously questioned on behalf of the defence. We hereby affirm the said finding.
11) Now, the next question would be, whether the appellants are the perpetrator of the crime?
12) In the case of the defence that the co- accused Vishwajeet (juvenile) was residing in the house of the appellant No.1, who used to treat by practicing 'Jhadphoonk'/witchcraft and also treated deceased - Meena Bai. That is the reason the appellant No.1 has falsely been implicated in this case. At the most there is allegations of beating by the appellants but according to the statement of Dr. Azad Ahmad Siddique (PW/11) injuries were simple in nature and were not sufficient to cause death, therefore, the appellants cannot be convicted for the Page 6 of 11 offence punishable under Section 302/34 IPC.
13) In order to appreciate the plea raised on behalf of the appellants, It would be appropriate to notice the nature of injuries which have been suffered by the deceased and explained by Dr. Azad Ahmed Siddique (PW/11) in his statement before the Court which states as under:-
"6@vkj{kd d".kk dqekj oekZ dzekad 433 iqfyl Fkkuk [kjksjk ds }kjk Jherh ehuk firk nqyjok dqjsZ 30 lky xzke fVdjhMhg iqfyl Fkkuk [kjksjk dk fuoklh Fkk] ds 'ko ijh{k.k gsrq fnukad 09&03&2011 dks nksigj 3 ctdj 40 feuV ij 'ko ijh{k.k gsrq yk;k Fkk A mlh fnukad dks 4 ctdj 30 feuV ij mDr 'ko dk iksLVekVZe esjs }kjk fd;k x;k A ijh{k.k ij eSaus ik;k fd mDr 'ko esa e`R;q i'pkr dh vdM+u mijh vkSj fupys Hkqtk esa ekStwn Fkk A e`R;q i'pkr 'kjhj ds i`"B Hkkx esa iksLVekVZe LVs;fuax ik;k x;k Fkk A mldk 'kjhj gYdk lQsn iM+ x;k Fkk A mlds 'kjhj ij yky Hkwjk daVh;wtu ik;k x;k Fkk] tks fd nkfgus vxz Hkqtk ,oa nkfgus dU/ks ds mijh Hkkx ij ik;k x;k Fkk tks 16x Hkqtk ds iwjh xksykbZ rd fLFkr Fkk A mlh izdkj yky Hkwjs daVh;wtu nkfgus Nkrh ij Fkk] ftldk vkdkj 4- 5 bap x 3 bap Fkk A blh izdkj yky Hkwjs daVh;wtu cgqr lh la[;k esa Nkrh ds nkfgus Hkkx ij ckgj dh vksj fLFkr Fkk] ftldk vkdkj 10-5 bap x 16 bap Fkk A mDr daVh;wtu 3 bap x 0-5 bap ls ysdj 6 bap x 1-5 bap Fkk A 7@nkfgus xys ij ,oa Nkrh ds mijh Hkkx ij daVh;wtu ik;k x;k Fkk ftldk vkdkj 6 bap x 2-5 bap Fkk] ml ij cgqr ls NksVs 16 dh la[;k esa yky Hkwjs [kjksap Hkh ik;s x;s Fks ftldk vkdkj 1 lsa-eh- x 0-5 ls-eh- ls ysdj 2-5 lsa-eh- x 1-5 lsa-eh- rd Fkk A nkfgus psgjs ij daVh;wtu ik;k x;k Fkk] ftldk vkdkj 4 bap x 2 bap rd Fkk A 8@,d daVh;wtu 4 bap x 2 bap ekFks ds chp esa FkkA ,d daVh;wtu 1-5 lsa-eh- x 0-5 lsa-eh- ekFks ds ck;sa fgLls esa vka[k ds mij Fkk A Page 7 of 11 Nkrh ds ck;s rjQ ,oa ck;s da/ks ij 5 bap x 5-5 bap dk daVh;wtu Fkk A 9@ck;h Hkqtk ij 1 bap x 0-5 bap ls ysdj 6 bap x 5 bap ds ikap daVh;wtu ekStwn Fks A nkfgus tka?k ij ikap daVh;wtu 2 bap x 1 bap ls ysdj 6 bap x 3 bap rd Fks A blh izdkj nkfgus iSj ij daVh;wtu ik;k x;k Fkk] ftldk vkdkj 3-5 bap x 8 bap Fkk A blh izdkj cka;h tka?k ,oa ck;s iSj ij daVh;wtu Fkk] ftldk vkdkj 2 bap x 1-5 bap ls ysdj 8 bap x 3 bap rd Fks A 10@ukd ij yky jax dh [kjksap 1-5 lsa-eh- x 1 lsa-eh- dh Fkh A nkfgus iqVBs ds Hkkx ij 8 bap x 6 bap dk daVh;wtu Fkk rFkk ck;as iqVBs ij 4 bap x 3 bap dk daVh;wtu Fkk A ck;sa vxz Hkqtk ij 16 dh la[;k esa daVh;wtu ,oa [kjksap ftldk vkdkj 1 lsa-eh- x 0-5 lsa-eh- ls ysdj 2-5 lsa-eh-
x 1 lsa-eh- rd ds Fks A
vkarfjd ijh{k.k&
11@ xys esa cgqr ls daVh;wtu vxz ,oa
ckgjh Hkkx ij ekStwn Fks A efLr"d]
QsQM+s] ;d`r] yhoj] frYyh] xqnkZ vxz dtLVsM ik;s x;s Fks A ân; ds nkfgus psEcj esa jDr ekStwn Fkk A daB ,oa 'okl uyh datLVsM Fkk] ftles lQsn jax dk >kx ik;k x;k A isV esa vkIIkpk Hkkstu ik;k x;k FkkA vfHker& 12@esjs erkuqlkj e`rdk dks vk;h mijksDr pksVs e`R;q iwoZ dh Fkh rFkk 'ko ijh{k.k ls yxHkx 24 ?kUVs iwoZ dh Fkh esjs erkuqlkj e`rdk dh e`R;q dk dkj.k ne ?kqVus ls gks ldrh gS] tks fd xyk ?kksVus ls gks ldrh gS A e`rdk dh e`R;q dh izd`fr ekuo o/k izd`fr dh gks ldrh gSA"
14) As per statement of Dr. Azad Ahmed Siddique (PW/11), who conducted postmortem over the body of the deceased, would show that cause of death is on account of asphyxia due to strangulation. In para 15 he has stated that no fracture in hyoid bone was found and nature of injuries are simple in nature. In para 17 he stated that if a person remained for long time in exposure of smoke, on that account, death of a person Page 8 of 11 may also occur.
15) In order to consider the plea raised by learned counsel for the appellants regarding nature of injury, it would be appropriate to notice definition of "grievous hurt" as defined in Section 320 of IPC.
"320. Grievous hurt.- The following kinds of hurt only are designated as grievous.-
First to seventhly xxx xxx xxx Eighthly.- Any hurt which endangers life or which cause the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
16) Grievous hurt is hurt of more serious kind. This section merely gives the description of grievous hurt. A person cannot be said to have caused grievous hurt unless the hurt caused is one of hurts specified under Section 320 of IPC. Therefore, it is duty of the Court to give a finding on its own whether the hurt was simple or grievous.
17) The expression "dangerous" is an adjective and the expression "endanger" is a verb. An injury which can put life to an immediate danger of death would be an injury which can be termed as "dangerous to life" and, therefore, when a doctor describes an injury as "dangerous to life" he means an injury which endangers life in terms of clause (8) of Section 320 of the IPC, for it describes the injury "dangerous to life" Page 9 of 11
only for the purpose of the said clause. He instead of using of the expression that this was an injury which "endangered life"
describes it that the injury was "dangerous to life", meaning both the times the same thing. (see Atma Singh v. State of Punjab)1.
18) The Supreme Court in the matter of Pandurang and others v. State of Hyderabad2 has held that a blow on the head with an axe which penetrates half of an inch into the head is likely to endanger life and would fall within the definition of "grievous hurt" and setting aside the conviction under Section 302 of IPC, convicted the accused therein under Section 326 of IPC.
19) Similarly, in the matter of M/s. Formina Sebasio Azardo and another v. State of Goa 3 their Lordships of the Supreme Court held that the nature of injuries found on the deceased attract the definition falling under clause (viii) of Section 320 of the IPC establishing that the injuries were such to endanger the human life set aside the conviction under Section 302 of IPC and sentenced them imprisonment for a period of 5 years.
20) The Supreme Court in the matter of State of Karnataka v. Shivalingaiah4 their Lordship of the Supreme Court have held that the act of squeezing testicles is dangerous to human life. It actually lead to the cardiac arrest and thus 1 1980 CrLJ 1226 2 AIR 1955 SC 216 3 AIR 1992 SC 133 4 AIR 1988 SC 115 Page 10 of 11 would clearly to be covered by Section 320 of the IPC and therefore, amounts to grievous hurt.
21) Reverting to the facts of the present case in light of definition of grievous hurt and the principles of law laid down by their Lordships of the Supreme Court in M/s. Formina Sebastio Azardeo (supra), State of Karnataka (supra), it is quite vivid that nature of injuries as noticed by Dr. Azad Ahmed Siddiue (PW/11) in Ex.P/25 was not only dangerous but has ultimately taken life of Meenabai (deceased). Taking into consideration the statements of Nanakchand Dahariya (PW/1) and Agarchand Dahariya (PW/2), brothers of the deceased, it is established that witchcraft had been played by Vishwajeet (juveile) at the house of appellant herein and statement of Omprakash Dahariya (PW/3), nephew of the deceased, Mona Prasad Dahariya (PW/4), Dularvin Bai (PW/
13), revealed that the co-accused Vishwajeet (juvenile) practiced and treated the deceased by witchcraft, as such, the two appellants herein had neither intention to cause death, nor had knowledge that assault made by them is likely to cause the death of Meenabai and their act of beating her would fall within the offence under Section 325/34 of Indian Penal Code, as such, conviction of the appellants for the offence under Section 302 IPC is set-aside and similarly as there is no evidence against the appellants for offence Section 7 of the Act, 1954, the same is also set-aside and instead thereof the appellants the appellants are convicted for Page 11 of 11 offence under Section 325/34 IPC. Since the appellants have served more than three years of jail sentence, taking into consideration the period they have already undergone, we award the sentence to the appellants for the period already undergone by them and it is directed that the appellants be released forthwith, if not required in any other offence.
22) Accordingly, this criminal appeal is partly allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nadim