Chattisgarh High Court
Bishun Ram vs State Of Chhattisgarh on 17 January, 2024
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 1135 of 2003
Bishun Ram Versus State Of Chhattisgarh
17.01.2024 Mr. Anuroop Panda, learned counsel for the appellant.
Dr. Surendra Kumar Dewangan, learned Penal Lawyer, for the
Respondent/State.
The case has been listed on PUD received from the District & Sessions Judge, Bilaspur whereby it has been informed that the appellant could not be released on Bail as he is unable to furnish his bail bond and the concerned Court has received an application from the appellant from Central Jail, Bilaspur that he be released on his personal bond.
Considering that the sentence imposed upon the appellant has been suspended and he was granted bail vide order dated 15/11/2003 and 28/09/2005, in pursuance of the non-bailable warrant issued against the appellant vide order dated 06/11/2023, he has been arrested on 08/12/2023 and detained in Central Jail Bilaspur. This Court deem it proper to hear the case finally.
With the consent of the parties, the matter has been heard finally and judgment dictated separately.
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(Ravindra Kumar Agrawal) Judge Sagrika 1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1135 of 2003 Bishun Ram, S/o Sukhi Ram, age about 34 years,Caste- Korwa, R/o Village Pendridih, P.S. & Tahsil Katghora, Dist- Korba (CG)
---- Appellants Versus State Of Chhattisgarh through P.S. Katghora, District : Korba, Chhattisgarh
---- Respondent For Appellants : Mr. Anuroop Panda, Advocate For Res./State : Dr. Surendra Kumar Dewangan, Penal Lawyer S.B.: Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 17/01/2024
1. The appeal arises out of the judgment of conviction and sentence dated 30/08/2003 passed by the learned 5th Additional Sessions Judge, Bilaspur, Dist- Bilaspur, in Sessions Case No. 129/2003 whereby the appellant has been convicted for the offence under Section 304 of I.P.C. & sentenced for R.I. for 10 years with fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 month.
2. Initially the charge sheet was filed against the accused for the commission of the offence under Sections 452, 323, 506 B & 302 of IPC. After conclusion of trial, the accused appellant was acquitted 2 from the charge under Sections 452 & 302 of IPC whereas, the appellant has been convicted for the offence under Section 304 of IPC.
3. Brief facts of the case are that, on 07/09/2002 the appellant has assaulted the deceased Biru Ram on the dispute that he was playing with craft and because of that his sister has died. By the assault made by the appellant, on 07/09/2002, the deceased Biru Ram was received injuries on his head. The incident was reported to the Police and the deceased was sent for his medical examination to Community Health Centre, Katghora. On 09/09/2002, Dr. H.D. Dahire (PW-6) has examined him and found the lacerated wound, size 3 X ½ Inch on right side of the parietal region, blood clots are present and opined that the injuries may be caused by hard and blunt object and simple in nature. After medical examination, the deceased Biru Ram has went to his house. On 21.09.2002 at about 17.00 hours, Dehati Merg intimation was given by one Chhotaka Ram to the Police Station- Kartala with the effect that on 07/09/2002 the appellant has assaulted the deceased Biru Ram which was reported to the Police on 09/09/2002 and after his medical examination, he came back to his house. When he was not feeling well, on 17/09/2002 he stayed in the house of Kotwar and taking treatment from Jitendra Kumar Bakshi and died today at about 10AM. The Dehati Merg intimation (Ex-P/1) was recorded by the Police and the merg intimation is (Ex-P/4) and based on Dehati Merg Intimation, the numbered merg intimation was recorded by the 3 Police. Inquest of the dead body of the deceased was prepared vide Ex-P/14 in presence of the witnesses. The body was sent for post mortem to Community Health Centre, Kotghora, Dist- Korba where Dr. B.S. Narbadiya (PW-8) has conducted the post mortem of the body of the deceased and gave his report (Ex-P/16). During the post mortem doctor has noticed the lacerated wound heald externally, O/D underlying skull bone fractured, ¾ X ¾ Inch and having pus, indicative of septicemia proceeded by fracture proximately and duration within four weeks and he opined that the cause of death is Coma due to fracture skull causing septicemia. The Police have registered the FIR (Ex-P/2) against the appellant for the offence under Sections 452, 323, 506 B, 302 of IPC. The memorandum of the appellant was recorded on 22.09.2002 as Ex- P/7 and based on his discloser statement Axe has been recovered from on the instance of the appellant vide Ex-P/7, the Spot map (Ex-P/8) was prepared by the Police. The appellant was arrested on 22/09/2002. Statements of the witnesses have been recorded under Section 161 of Cr.P.C. and after completion of the investigation, charge-sheet was filed before the learned Judicial Magistrate, First Class, Katghora. The case was committed to the learned Sessions Court from where the same has been transferred to the learned Trial Court.
4. Learned Trial Court has framed charges against the appellant for the offence under Section 452 and 302 of IPC. The appellant abjured his guilt and claimed trial.
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5. In order to establish the charge against the appellant, the prosecution has examined 08 witnesses.
6. The statement under Section 313 of Cr.P.C. of the appellant has been recorded in which he denied the material appears against him and plead innocence and stated that he has been falsely implicated in the offence.
7. After appreciation of the evidence available on record, the learned Trial Court has acquitted the appellant from charge of Section 452 and 302 of IPC whereas he has been convicted for the offence of Section 304 of IPC and sentenced him as mentioned in Para 1 of this judgment. Hence this appeal.
8. Learned counsel for the appellant would argue that the appellant has been falsely implicated in the offence. No offence is made out as alleged. The prosecution has failed to prove his case beyond reasonable doubt. There is material omission and contradiction on the evidence of the prosecution witnesses. The alleged incident of assault is said to have been committed on 07/09/2002 whereas the appellant has died on 21/09/2002 due to Septicemia. Which is not the direct result of the alleged assault made by the appellant and therefore the offence of culpable homicide not amounting murder is not made out against the appellant and the offence, if any, done not travel beyond the scope of Section 325 of the IPC. The appellant is remained in Jail from 22/09/2002 to 28/09/2005 and thereby he has already undergone the jail sentence for about 03 years and by altering his conviction from the offence of 304 of IPC to 325 of IPC, 5 the period undergone by the appellant may be considered as sufficient sentence.
9. On the other hand, learned counsel for the respondent/State has opposed the argument advanced by learned counsel for the appellant and has submitted that the death of the deceased was the result of assault made by the appellant. The assault is made by an Axe on the head of the deceased by which he received fracture on his head due to which the Septicemia developed and he died. Although, he died after about 14 days of the alleged incident of assault yet it could not affect the conviction of the appellant for committing culpable homicide not amounting to murder. From the evidence of the prosecution witnesses, it has clearly been established that the appellant has caused injuries to the deceased that too on his head which is a vital part of his body and therefore the conviction of the appellant and sentence needs no interference.
10. I have heard learned counsel for the parties and perused the record.
11. It is not in dispute that the alleged incident of assault was said to have been happened on 07/09/2002. The alleged assault was reported to the Police on 09/09/2002 and the deceased Biru Ram was sent for his medical examination. The deceased was being medically examined on 09/09/2002 by Dr. H.D. Dahire (PW-6), who was the Medical Officer at Community Health Centre, Katghora. He deposed in his evidence that on 09/09/2002, he medically examined the injured Biru Ram and found a lacerated wound on right parietal region of the injured on the size of 3 X ½ Inch, blood clots was also 6 there on the injury and he gave his report Ex-P/11. He opined that the injury found on the body of the deceased was simple in nature. He has not advised for X- Ray examination because the condition of Biru Ram was normal and the injuries were also appears to be simple. Since, he was not considered for requirement of any X-Ray Examination, he has not advised for the same. Since, Biru Ram was in normal condition, he was not admitted him in the hospital and let him go. In cross examination, the PW-6 has stated that he found that the injury received by Biru Ram on his head was simple in nature and after given him primary treatment, he let the deceased went to his house. At that time, he found that the injury received by him could be heald within one week if no complication would arise. During the examination, he could not see any fracture on the head of the deceased. He further stated that at the time of his medical examination, Biru Ram himself came by walking and after examination he left the place by walking and he was normal. At the time of examination, he was not found that by the injuries, he may died. He further stated that during the examination he could not found any rupture of any blood vessels underlying the injuries and also has not found any fracture on the head. He found only hematoma under the injuries which is caused due to rupture of muscles and skins.
12. PW-1 Chhotaka Ram, who is the brother of the deceased has stated in his deposition that he received the information that his brother was being assaulted by the appellant. He went to the house of his 7 brother Biru Ram, he saw the injury on his head. Thereafter, he taken him to the Police Station and lodged the report (Ex-P/1). After lodging of the report and completing the medical treatment, he has taken him to his house and on 21.09.2002 he died. He is not an eye witness and deposed whatever he was being informed by other persons.
13. PW-2 Budh Ram has stated in his deposition that the deceased Biru Ram is his brother in law. On the date of incident, he, deceased Biru Ram and one Motaka Ram (PW/3) were sitting together and at that time the appellant was also came there, the quarrel ensued between the deceased and appellant and the appellant has assaulted the deceased by an Axe, which was inflicted on the head of the deceased and he fell down. Thereafter Biru Ram had gone to his house and subsequently he died. In cross-examination he admitted that before the incident they have already consumed liquor. In front of the house of Motaka, when the appellant was passing through, he was being called by the deceased Biru Ram. He was returing after grazing his cattel and empty handed. No incident was occurred at that time since the incident was occurred inside the house, and therefore he could not see the incident. But he snatched the Axe from the appellant. He further stated that the villagers have normally kept an Axe in their hand while they are going for grazing of their catels.
14. PW-3 Motaka Ram has stated in his deposition that on the date of incident at about 6 PM, the appellant has assaulted the deceased 8 Biru Ram and after the assault, both of the had gone to their respective houses. In cross examination he denied from the fact that no incident was happened in his house.
15. From the evidence of these witnesses the prosecution has able to prove that there was quarrel between the appellant and the deceased in the house of one Motaka and the appellant has given an Axe blow on the head of the deceased which has been witnessed by PW-2 Budh Ram and PW-3 Motaka Ram. From the evidence of these witnesses it has also been reflected that the deceased Biru Ram had left the place on his own by walking.
16. PW- 4 Lalan Singh, Assistant Sub Inspector, has stated in his deposition that on 09/09/2002, the Biru Ram has lodged the report to the Police Station which has been registered vide Ex-P/2 and sent him for his medical examination to Community Health Centre, Katghora. It is notable that the incident is said to happen on 07/09/2002 whereas the report has been lodged by the injured/ Biru Ram on 09/09/2002 and till that time he was in full of his consciousness and no any complications he complained. While medically examined the deceased Biru Ram, Dr. H. D. Dahire has found that the injury on the body of the deceased was simple in nature and there was no fracture and after given him primary treatment he released the deceased and the deceased himself went from there on his own legs to his house.
17. The PW- 8 Dr. B. S. Narbadiya has conducted the post mortem of the body of the deceased has found that there was an injury from 9 the right side of the parietal region of the deceased and Septicemia developed and on dissection he found that there was fractured on bone which was in the size of ¾ X ¾ X 1 Inch. Since, the bones were in the process of healing, he could not state the nature of the injury. He opined that the deceased has died due to Septicemia. In cross-examination he admitted that if the injury was not treated, the injured can went in Coma and further stated that if proper treatment would have been provided to the injured, he would be saved. Since the doctor who conducted the post mortem of the body of the deceased has found the fracture of right parietal bone, duration within four weeks from the date of conducting the post mortem that too by hard and blunt object.
18. PW - 6 Dr. H. D. Dahire, has also opined that the Axe which was produced before him for query report, the injury to the deceased could have been caused by the said Axe. The Axe was recovered on the instance of the appellant and therefore it can safely be hold that the appellant has caused injuries on the head of the deceased by an Axe. But the death of the deceased was not the direct result of the injury caused by the appellant and the death is caused as the consequence of the injury because the deceased was not properly being treated by the doctor. Thereby voluntary causing grievous hurt by the appellant would be the appropriate conviction for the appellant.
19. The Hon'ble Supreme Court in the matter of Parusuraman alias Velladurai and others Vs. State of Tamilnadu, AIR 1993 SC 141, 10 has held in paras 2 and 3:-
"2. We have heard Learned counsel for the parties. We agree with the High Court that the participation of the appellants in the occurrence which result in the death of Jawahar has been proved beyond doubt. We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case, the offence committed by the appellants comes within the mischief of S. 325 read with S.34, I.P.C. Thirteen external injuries were found on the dead body of Jawahar out of these 11 injury 11 were on lower legs and arms.
3. Agree with the above observation of the High Court we are of the opimien that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of S. 325, I.P.C. We, therefore, set aside the conviction and sentence of the appellants undier section 304, Part I, I.P.C., read with S. 34, I.P.C. and instead convict thiem under S. 325 I.P.C. read with S. 34 I.P.C.. We impose the sentence of imprisonment already undergone by the appellants."
20. The Hon'ble Supreme Court in the matter of Khuman Singh and others Vs. State of MP, 2005 (9) SCC 714, has held in para 10:-
"10 . It is, no doubt, true, that they assaulted the deceased, in such a manner that the deceased suffered several fractures, but the injury which caused the death of the deceased was the one suffered by him on account of the rib bone puncturing the liver. We are convinced that this injury was not intended by 11 the appellants, and the injury suffered by the deceased on his liver was at best accidental."
21. In view of the above, this Court is of the considered view that the act committed by the appellant would fall under section 325 of I.P.C., causing grievous hurt and would not be culpable homicide not amounting to murder. The conviction of the appellant under section 304 of IPC is therefore set aside and instead thereof he is hereby convicted for committing offence under section 325 of I.P.C. The appellant is remained in jail from 22/09/2002 to 28-09-2005 which comes about the period of almost three year. Section 325 of IPC is not provided for any minimum sentence. The appellant is therefore sentenced for the commission of offence under Section 325, for R.I. for two years with fine of Rs.1000/- in default of payment of fine, further R.I. for one month. Since, the appellant has already undergone, the entire sentence, he be given the benefit of set-off. The appellant is reported to be in jail from 08/12/2023, he be released forthwith immediately if not required in any other case.
22. For the foregoing reasons, the appeal is partly allowed.
23. Keeping in view the provisions of Section 437-A of Cr.P.C., the appellant is directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure for a sum of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of 12 leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
24. The Lower Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
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(Ravindra Kumar Agrawal) Judge Sagrika