Chattisgarh High Court
Suraj Sahu vs State Of Chhattisgarh on 18 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 780 of 2016
Suraj Sahu S/o Vishnu Prasad Sahu, Aged about 27 years,
R/o Hospital Road Manipur, Police Chowki Manipur, Police
Station Kotwali Ambikapur, Distt. Sarguja, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Ambikapur, Distt. Sarguja, Chhattisgarh.
---Respondent
For Appellant :- Mr. Shaktiraj Sinha, Advocate
For State :- Ms. Ruchi Nagar, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
18/10/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein assailing the impugned judgment dated 02/06/2016 (Annexure A/1) passed by learned Session Judge Ambikapur, Distt. Sarguja in Sessions Trial No. 10/2016 whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 3000/- and in default of payment of fine additional R.I. for three months.
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2. Case of the prosecution, in brief, is that on 27/10/2015 at about 5 PM at village Manipur, P.S. Ambikapur, the appellant assaulted his minor daughter Ku. Rajlakshmi alias Ritika, aged about 16 months, with a hammer due to which she suffered grievous injuries and succumbed to death.
3. Further case of the prosecution is that at the time of the incident, construction was going on in the ancestral house of the appellant. On 27/10/2015 at about 5 PM, labourers were doing construction work on the first floor and appellant's mother Smt. Koushilya Sahu (P.W.-1) carried his daughter (deceased) on her lap and went to the first floor where construction work was going on. Deceased ku. Rajlakshmi wanted to go to the lap of his father (appellant) but he refused to take her due to which she started crying and upon seeing her cry, the appellant took the hammer kept nearby and inflicted two blows on the head of his daugher ku. Rajlakshmi (deceased). Thereafter, Smt. Koushilya Sahu (P.W.-1) tried to intervene and upon hearing the noise, the labourers working therein as well as appellant's wife Smt. Kavita Sahu (P.W.-2) and his sister Chanda Sahu (not examined before the Court) also came therein and intervened. Immediately thereafter, they took deceased ku. Rajlakshmi to Sankalp Hospital and thereafter, she was taken to Jeevan Jyoti Hospital wherein she was examined by Dr. Sudhanshu Kiran (P.W.-4) but due 3 to the grievous injuries suffered by her, ku. Rajlakshmi succumbed to death on 27/10/2015 at 7 PM itself.
4. On the same day, at about 09:10 PM, appellant's wife Smt. Kavita Sahu (P.W.-2) went to the Police Station and lodged and unnumbered first information report vide Ex. P/2. On the same night, Jeevan Jyoti Hospital informed the Police Station about the death of the deceased on the basis of which unnumbered merg intimation was registered vide Ex. P/17. Thereafter, Crime No. 0610/2015 at Police Station Ambikapur against the appellant for offence punishable under Section 302 of IPC vide Ex. P/2A and merg report was registered as Ex. P/17A. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/6 and in the presence of the witnesses, inquest was conducted vide Ex. P/7. The dead body of deceased ku. Rajlakshmi was subjected to postmortem which was conducted by Dr. K.P. Vishwakarma (P.W.-4) and as per the postmortem report (Ex. P/18), cause of death is said to be cardiorespiratory arrest due to head injury and nature of death is said to be homicidal. The statements of the witnesses were recorded and memorandum statement of the appellant was recorded vide Ex. P/9 pursuant to which blood stained hammer was seized vide Ex. P/14. From the spot, broken pieces of bangles belonging to Smt. Koushilya Sahu (P.W.-1) were seized vide Ex. P/8. The seized hammer was sent for chemical examination and as per FSL report (Ex. P/21), 4 blood was found on it. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for hearing and disposal in accordance with law.
5. In order to bring home the offence, prosecution examined as many as 11 witnesses and brought on record 23 documents. The statement of appellant/accused was recorded wherein he denied guilt, however, he examined none in his defence.
6. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased to be homicidal in nature and further finding the appellant to be the perpetrator of the crime in question, proceeded to convict him for offence punishable under Section 302 of IPC and sentenced as aforesaid.
7. Mr. Shaktiraj Sinha, learned counsel for the appellant, would submit that eye-witnesses Smt. Koushilya Sahu (P.W.-1), Smt. Kavita Sahu (P.W.-2), Sitaram Minj (P.W.-5) and Ramrat (P.W.-11) have turned hostile and have not supported the case of the prosecution rather they have stated that deceased ku. Rajlakshmi suffered injuries and succumbed to death due to falling on the ground and the trial Court has convicted the appellant for the offence in question only on the basis of the statement of Dr. Sudhanshu Kiran (P.W.-4) as well as the statement of Vinay Kumar Sahu (P.W.-3) made under Section 161 CrPC vide 5 Ex. P/11 and Article B, which is absolutely illegal and bad in law particularly when the trial Court itself has recorded that seizure of hammer from the possession of the appellant has not been duly proved and the origin of blood found on the said hammer has also not been duly proved vide FSL report (Ex. P/21), as such, the instant appeal be allowed and the appellant be acquitted of the charge punishable under Section 302 of IPC.
8. Per contra, Ms. Ruchi Nagar, learned State counsel, would support the impugned judgment and submit that learned trial Court is absolutely justified in convicting the appellant for offence punishable under Section 302 relying upon the statement of Dr. Sudhanshu Kiran (P.W.-4) who has clearly stated that while deceased ku. Rajlakshmi was admitted in the Hospital, Vinay Kumar Sahu (P.W.-3), appellant's brother as well as Chanda Sahu (not examined before the Court), sister of the appellant, had clearly stated that deceased had suffered injuries because of the assault made by the appellant on her head with a hammer, as such, the instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
10. The first question for consideration is, whether the death of deceased Ku. Rajlakshmi was homicidal in nature ? 6
11. Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. K.P. Vishwakarma (P.W.-8) as well as the postmortem report (Ex. P/18) in which it has categorically been held that cause of death is due to cardiorespiratory arrest as a result of head injury and the nature of death is homicidal. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased on her head and relying upon the medical opinion of Dr. K.P. Vishwakarma (P.W.-8) as well as postmortem report (Ex. P/18), we are of the considered opinion that learned trial Court has rightly held the death of deceased ku. Rajlakshmi to be homicidal in nature. Moreover, the fact that death of the deceased was homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased ku. Rajlakshmi was homicidal in nature.
12. The next question for consideration is, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC holding him to be the author of the crime in question ?
13. The trial Court has convicted the appellant for offence punishable under Section 302 of IPC relying upon the application for postmortem report (Ex. P/18A) as well as the 7 bed head ticket (Ex. P/12) and the statement of Dr. Sudhanshu Kiran (P.W.-4).
14. Admittedly, eye-witnesses of the incident namely Smt. Koushilya Sahu (P.W.-1), mother of the appellant, Smt.Kavita Sahu (P.W.-2), wife of the appellant, Vinay Sahu (P.W.-3), brother of the appellant, Sitaram Minj (P.W.-5) and Ramrat (P.W.-11), all have turned hostile and have not supported the case of the prosecution. All of them have unequivocally stated that deceased suffered injuries on her head on account of falling from the kitchen platform which was under construction and thereafter, she was immediately taken to the hospital where she succumbed to death.
15. In paragraph 4 of the impugned judgment, the trial Court has itself recorded that seizure of hammer from the possession of the appellant has not been duly proved by the prosecution but thereafter, the trial Court proceeded to hold him guilty for the offence in question relying upon the statement of Dr. Sudhanshu Kiran (P.W.-4) who has stated before the Court that on 27/10/2015 at about 06:05 PM, deceased was brought to Jeevan Jyoti Hospital and he had examined her and had found that she was in an unconscious condition and was about to succumb to death. He noticed swelling on her left and right parietal region, a bruise on her right cheek and abrasion on her left cheek. She was immediately admitted in the ICU and after about 8 20 minutes she suffered cardiorespiratory arrest and at about 07:00 PM, she succumbed to death. He has further stated that deceased was brought to the hospital by her uncle Vinay Kumar Sahu (P.W.-3), aunt Chanda Sahu (not examined) and mother Kavita Sahu (P.W.-2) and when he asked them as to how the deceased suffered such injury, Vinay Kumar Sahu (P.W.-3) and Chanda Sahu had told him that their brother Suraj Sahu (appellant) was in the terrace where construction work was going on and when the deceased tried to go on his lap, the appellant took the hammer kept nearby and inflicted two blows on her head and assaulted her. In this regard, Vinay Kumar Sahu (P.W.-
3) had also made a handwritten note and had himself signed it which is a part of the Bed-head ticket (Ex. P/12) and has been marked as Article B.
16. From a careful perusal of the record, it is evident that bed-
head ticket (Ex. P/12) in which history of the patient (deceased) was recorded by Dr. Sudhanshu Kiran (P.W.-4) when she was admitted to Jeevan Jyoti Hospital which also contains Article B which is a handwritten note of Vinay Kumar Sahu (P.W.-3) stating that deceased suffered injuries on her head on account of the assault made by the appellant with hammer. However, the said Article B which is a part of bed-head ticket (Ex. P/12) has not been duly proved as Vinay Kumar Sahu (P.W.-3), when he was examined on oath before the Court, turned hostile and 9 clearly stated that their house was under construction and the deceased fell from the kitchen platform due to which she suffered grievous injuries on her head, though he had admitted that he had put his signature on Article B. Moreover, Chanda Sahu, sister of the appellant and aunt of the deceased, who is also said to have taken the deceased to the Hospital along with Vinay Kumar Sahu (P.W.-3) and Smt. Kavita Sahu (P.W.-2) and who also apparently informed Dr. Sudhanshu Kiran (P.W.-4) about the appellant assaulting the deceased with hammer, despite being available, has not been examined before the Court to prove bed-head ticket (Ex. P/12) for the reasons best known to the prosecution. As such, we are of the considered opinion that the trial Court has erred in relying upon the bed-head ticket (Ex. P/12) as well as the statement of Dr. Sudhanshu Kiran (P.W.-4) to convict the appellant for the offence in question.
17. The next document which has been relied upon by the trial Court is the first information report (Ex. P/2) which has been lodged by Smt. Kavita Sahu (P.W.-2) in which she has stated that her husband (appellant) assaulted her daughter (deceased) by hammer due to which she sustained grievous injury on her head, but Smt. Kavita Sahu (P.W.-2) has turned hostile and has not supported the case of the prosecution, therefore, reliance placed by the trial Court upon the testimony of Dhananjay Pathak (P.W.-9), who is 10 said to have proved the first information report (Ex. P/2), cannot be said to be in accordance with law for convicting the appellant for the offence in question.
18. Similarly, in the application for postmortem (Ex. P/18A), a similar endorsement has been made by Dhananjay Pathak (P.W.-9) stating that appellant has assaulted the deceased by hammer due to which she suffered grievous injury on her head and succumbed to death and he has requested Dr. K.P. Vishwakarma (P.W.-8) to conduct postmortem. The said application for postmortem (Ex. P/18A) also appears to have been made on the basis of the information given by Smt. Kavita Sahu (P.W.-2), who as noticed above has turned hostile and has not supported the case of the prosecution at all, as such, both of these documents i.e. first information report (Ex. P/2) as well as application for posmortem (Ex. P/18A) could not have been relied upon by the trial Court to convict the appellant for offence punishable under Section 302 of IPC as these incriminating documents have been recorded on the basis of the statement given to Investigating Officer Dhananjay Pathak (P.W.-9) by Smt. Kavita Sahu (P.W.-2). As such, the trial Court has further erred in relying upon the first information report (Ex. P/2) as well as the application for postmortem report (Ex. P/18A) to convict the appellant for the offence in question.
19. In view of the aforesaid legal discussion, it is quite vivid that though all the eye-witnesses namely Smt. Koushilya Sahu 11 (P.W.-1), Smt. Kavita Sahu (P.W.-2), vinay Sahu (P.W.-3), Sitaram Minj (P.W.-5) and Ramrat (P.W.-11) have turned hostile and have not supported the case of the prosecution and the seizure of weapon of assault i.e. hammer has also not been found proved yet the trial Court has convicted the appellant relying upon the statement of Dr. Sudhanshu Kiran (P.W.-4) and bed-head ticket (Ex. P/12) which is absolutely contrary to law as Dr. Sudhanshu Kiran (P.W.-4) has stated that it was the uncle of the deceased, Vinay Kumar Sahu (P.W.-3) as well as the aunt of the deceased Chanda Sahu, who had informed him that deceased suffered head injuries on account of the assault made by the appellant on her head, but Vinay Kumar Sahu (P.W.-3) has turned hostile when examined before the Court and has clearly stated that deceased suffered injuries on account of falling from the kitchen platform which was under
construction and Chanda Sahu, though available, has not even been examined before the Court. The trial Court has further erred in relying upon the first information report (Ex. P/2) as well as the application for postmortem report (Ex. P/18A) as the first information report was lodged by Smt. Kavita Sahu (P.W.-2), who has turned hostile and has not supported the case of the prosecution when examined on oath before the Court and the application for postmortem report (Ex. P/18A) has also been recorded by the Investigating Officer Dhananjay Pathak (P.W.-9) on the 12 basis of the statement of Smt. Kavita Sahu (P.W.-2). Thus, in our considered opinion, the trial Court has legally erred in convicting the appellant for offence punishable under Section 302 of IPC. We hereby set aside the impugned judgment recording conviction of the appellant and awarding sentence as aforesaid. The appellant is acquitted of the charge levelled against him and he be released forthwith, if not required in any other case.
20. This criminal appeal stands allowed accordingly.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Harneet