Chattisgarh High Court
Kumma Bhaskar vs State Of Chhattisgarh on 6 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-1403-2021
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1403 of 2021
Kumma Bhaskar, S/o Sukhram Bhaskar, aged about 25 years, Resident of
Balempara Gamawada, Police Station Bhansi, District Dantewada,
(Chhattisgarh)
---- Appellant
Versus
State of Chhattisgarh, through the Station House Officer, Police Station
Bhansi, District Dantewada (Chhattisgarh)
---- Respondent
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For Appellant : Mr. Dhirendra Prasad Mishra, Advocate For Respondent-State : Mr. Sudeep Verma, Government Advocate & Mr. Somya Rai, Panel Lawyer
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DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal Order on Board (06.07.2022) Sanjay K. Agrawal, J (1) This criminal appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 23.09.2021, passed by the Court of learned Sessions Judge, South Bastar, District Dantewada (C.G.) whereby the appellant/accused has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of fine, rigorous imprisonment of 03 months.
(2) The case of the prosecution, in brief, is that on 19.09.2017 at about 06:00 PM in the evening at Village Gamawada Balempara the appellant herein assaulted Joga Bhaskar (deceased) by means of iron pipe on the pretext that he is involved in the act of witchcraft and thereby committed the CRA-1403-2021 Page 2 of 8 offence under Section 302 of IPC and also under Sections 04 & 05 of the Chhattisgarh Tonahi Pratadna Nivaran Act, 2005 (for short the "Act of 2005"). (3) The further case of the prosecution, in brief, is that on 19.09.2017 deceased- Joga Bhaskar after having food and consuming liquor had gone out of his house and did not return back. On the next day i.e. 20.09.2017, in the morning, when Smt. Lakkho Bhaskar (PW-01) was going to attend the call of nature, she saw Joga Bhaskar (deceased) lying dead in front of Bheema Baras's house and his dead-body is bloodied, thereafter, she immediately informed Lachchhu Bhaskar (PW-02), who in turn, informed about the said incident to Smt. Torko Bhaskar (PW-03), wife of the deceased- Joga Bhaskar. Thereafter, a meeting of villagers was convened in the village, in which the accused-appellant herein informed that deceased- Joga Bhaskar was involved in the act of black magic/witchcraft, used to threatened his family members and used to send snakes by spells (magic) and, on account of which, the accused-appellant herein ensued a dispute with deceased- Joga Bhaskar, threatened him to kill and in furtherance thereof assaulted him by means of iron pipe on his head and committed his murder. Thereafter, at the instance of Smt. Torko Bhaskar (PW-03), marg intimation (Ex.P/03) was recorded and on the basis of which FIR (Ex.P/04) vide Crime No.35 of 2017 was also registered against the accused-appellant at Police Station Bhansi, District Dantewada (CG) for offences punishable under Sections 302 of IPC and also under Sections 04 & 05 of the Act of 2005. Spot map was prepared vide Ex.P/08 and 'Panchnama' was prepared vide Ex.P/09. Appellant was arrested vide Ex.P/12 and his memorandum has been recorded vide Ex.P/10 and pursuant to which a blood stained iron pipe was sized vide seizure memo (Ex.P/11) and the same was sent to FSL for examination. In the FSL report (Ex.P/23) it has been stated that blood was found in the said iron pipe, CRA-1403-2021 Page 3 of 8 but it could not be gathered/ascertained that the said blood is human blood or not. The dead-body of deceased- Joga Bhaskar was sent for postmortem examination vide Ex.P/18 and, in the postmortem report (Ex.P/25), it has been opined that cause of death is due to combined effect of head injury, hemorrhage and shock and mode of death is homicidal in nature. The postmortem of deceased was conducted by Dr. Nityanand Kumar, but on account of his transfer to some other place, Dr. Alok Minj (PW-10) has given statement before the Court and proved the postmortem report (Ex.P/25). Thereafter, statement of witnesses were recorded and after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Bacheli, District Dantewada (CG) and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence.
(4) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 26 documents, whereas the appellant/accused examined none in his defence and has not exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant only for offence under Sections 302 of IPC and awarded sentence as mentioned herein-above, against which this appeal has been preferred by the appellant/ accused questioning the impugned judgment of conviction and order of sentence dated 23.09.2021.
(6) Mr. Dhirendra Prasad Mishra, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC as there is no cogent and admissible evidence available on record to hold the present appellant guilty CRA-1403-2021 Page 4 of 8 for the said offence. He submits that even the alleged recovery of blood stained iron pipe pursuant to memorandum statement of the appellant- accused has not been proved by any independent witnesses, as they have not supported the case of the prosecution. Further, in the FSL report (Ex.P/23) it has been stated that blood was found in the said iron pipe, but it could not be gathered/ascertained that the said blood is human blood only and there is no report from Serologist to that effect and, as such, the appellant deserves to be acquitted from the charges under Section 302 of IPC. In alternative, learned counsel for the appellant submits that even if the act of the appellant in committing murder of the deceased is found to be proved, but there is no intention on the part of the appellant to cause death of the deceased, therefore it is an act of culpable homicide not amounting to murder, therefore, it is a fit case where the conviction of the appellant can be converted to an offence under Section 304 Part-II of IPC, hence, the present appeal deserves to be allowed in full or part.
(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC and it is not a case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-II of IPC, thus, the present appeal deserves to be dismissed.
(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
CRA-1403-2021 Page 5 of 8 (9) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court have recorded in affirmative by taking into consideration the statement of Dr. Alok Minj (PW-10), who has duly proved the postmortem report (Ex.P/25), conducted by Dr. Nitayanad Kumar, who could not be examined on account of his transfer, as such, cause of death is held to be due to combined effect of head injury, hemorrhage and shock and mode of death is held to be homicidal in nature. Taking into consideration the nature of injuries which deceased has suffered and the statement of Dr. Alok Minj (PW-10), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased- Joga Bhaskar to be homicidal in nature. Accordingly, we hereby affirmed the said finding. (10) Now the next question would be whether the accused-appellant herein is the author of the crime in question and, if yes, whether his act falls under the purview of culpable homicide not amounting to murder and his conviction under Section 302 of IPC can be converted to Section 304 Part-II of IPC, as contended by learned counsel for the appellant.
(11) Pursuant to memorandum statement of the accused-appellant herein (Ex.P/10) a blood stained iron pipe, which is used as a weapon for assaulting the deceased, was recovered vide seizure memo (Ex.P/11), which fact has been proved by Itwari Bhaskar (PW-05), Rajkumar Bhaskar (PW-06) and the Investigating Officer, namely, Somesh Singh Baghel (PW-09). The learned trial Court in its judgment after hearing learned counsel for the parties and after appreciating the evidence and other material available on record opined that the recovery of iron pipe vide Ex.P/11 pursuant to memorandum statement of the appellant (Ex.P/10) has duly been proved and even the CRA-1403-2021 Page 6 of 8 Investigating Officer, namely, Somesh Singh Baghel (PW-09) has proved the disclosure/memorandum statement of the appellant (Ex.P/10) and seizure memo (Ex.P/11). There is no reason to disbelieve the statement given by the Investigating Officer, namely, Somesh Singh Baghel (PW-09). Not only this, the said seized iron pipe was sent for FSL examination and in the FSL report (Ex.P/23) also it has been stated that blood has been found on the said iron pipe, though it could not be ascertained that the said blood is human blood or not. Further, the learned trial Court has relied on the extra-judicial confession made by the appellant before Smt. Torko Bhaskar (PW-03). A careful reading of statement of Smt. Torko Bhaskar (PW-03) would show that though in her examination-in-chief before the trial Court she has stated that the appellant has made extra-judicial confession of committing murder of her husband/deceased- Joga Bhaskar in the meeting of villagers, but in Para-23 of her cross-examination she has stated that she has no knowledge about the meeting of villagers convened with regard to death of her husband- Joga Bhaskar and, as such, the fact of extra-judicial confession is not established/ proved. But still, fact remains that certain incriminating circumstances are available in this case, such as seizure of blood stained iron pipe, which is used at the time of crime in question, vide seizure memo (Ex.P/11) pursuant to the disclosure/memorandum statement of appellant-accused (Ex.P/10) and further in the FSL report (Ex.P/23), blood has been found on the said iron pipe, however it is not clear whether the said blood is human blood or not. Further, motive that has been ascribed is clear from the statement of Smt. Torko Bhaskar (PW-03), wherein in Para-09 of her examination-in-chief before the Court she has stated that the appellant-accused had quarreled with her husband/deceased- Joga Bhaskar on account of his involvement in witchcraft activities and threatening his family members and, in furtherance CRA-1403-2021 Page 7 of 8 thereof, had assaulted him by means of iron pipe and committed his murder. Apart from that there is no evidence available on record to show that there is old enmity between the appellant-accused and the deceased- Joga Bhaskar. (12) Before proceeding further, it is significant to discuss here some tragic facts involved in the present case. Village Balempara Gamawada, which comes within the ambit of Police Station Bhansi, is a backward area and it is a fact of common knowledge that the appellant and the deceased belonged to under-developed community and most of them are illiterate and they believe in superstitions. It is a common phenomena in the community dominated areas that they practice magic and many other types of witchcraft to achieve their object whether good or bad. They hold many superstitions responsible for any misfortune and mis-happenings in their life and sometimes they became revengeful for no other reason but for their own doubts that someone is playing witchcraft on them or something wrong had been happened in their family or life due to witchcraft played by someone. Many a time, on the basis of their suspicion, they declare some woman as a witch and even their panchayat passes weird/hippocratic orders against them.
(13) In the instant case, the appellant was suspecting that the deceased- Joga Bhaskar is involved in the act of witchcraft and, on that account, he developed a plea of anger/protest, but he remained silent. There is nothing on record to show that there is old enmity between the appellant-accused and the deceased- Joga Bhaskar, but only on account of involvement of the deceased in witchcraft activities, the appellant herein is said to have murdered the deceased- Joga Bhaskar. Nothing serious was there. The appellant has no criminal history. No brutality appears in the incident and no CRA-1403-2021 Page 8 of 8 head or any grievous injury was caused. Thus, we are of the considered opinion that though the appellant has caused injury with the knowledge that it is likely to cause death of deceased- Joga Bhaskar, but there was no intention or motive on his part to cause death of the deceased, as such, the appellant has satisfied the four requirements namely: (i) it was sudden attack on account of revenge; (ii) there was no premeditation; (iii) the act was done out of revenge/vengeance and (iv) the appellant had not taken any undue advantage or acted in a cruel manner and, therefore, the act of the appellant would fall within the purview of Section 304 Part-II of IPC. (14) Accordingly, in view of aforementioned discussions, the conviction of the appellant under Section 302 of IPC and sentence of life imprisonment with fine of Rs.500/- and, in default of fine, rigorous imprisonment of 03 months, awarded by the learned trial Court, is hereby set aside and, instead thereof, he is convicted for offence under Section 304 Part-II of IPC. In view of Constitution Bench judgment of Supreme Court in the matter of Willie (William) Slaney vs. State of Madhya Pradesh1 as well as in the matter of Joseph vs. State of Kerala2, the appellant herein is sentenced to undergo rigorous imprisonment of 05 years with fine of Rs.250/-, and in default of fine, additional rigorous imprisonment of 15 days.
(15) The criminal appeal is allowed in part to the extent indicated herein- above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
s@if
1 AIR 1956 SC 116
2 1995 SCC (Cri) 165