Chattisgarh High Court
Natai And Others vs State Of Chhattisgarh on 8 January, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 813 of 2003
1 - Natai, S/o Devdhari Bhiya, age about 20 years, R/o Bardar, P.S.
Balrampur, Dist- Surguja (CG)
2 - Devdhari, S/o Bigan Bhiya, age 45 years, R/o Bardar, P.S.
Balrampur, District : Surguja, Chhattisgarh
---- Appellants
Versus
State Of Chhattisgarh through P.S. Balrampur, District : Surguja,
Chhattisgarh
---- Respondent
For Appellants : Mr. V.K. Pandey, Advocate
For Respondent/State : Mr. Wasim Miyan, Penal Lawyer
S.B.: Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 08/01/2024
1. The appeal arises out of the judgment of conviction and sentence dated 27/06/2003 passed by the learned Additional Sessions Judge, Link Court, Ramanujganj, Dist- Surguja, in Sessions Case No. 9/2001 whereby the appellants have been convicted for the offence under Section 304 Part II /34 of I.P.C. & sentenced them for R.I. for 10 years to each appellants with fine of Rs. 100/- to each 2 appellants. In default of payment of fine further R.I. for 01 month to each appellants.
2. Initially the charge sheet was filed against three accused persons for the offence under Section 302 of IPC. After conclusion of trial, the learned Trial Court has acquitted the accused Halkhori, S/o Hardayal from the charge of Section 302/34 of IPC whereas, the appellants have been convicted under Section 304 Part II/ 34 of IPC.
3. Brief facts of the case are that, on 16.11.2001 the complainant Shankar Urao (PW-3) has lodged a report to the Police against the accused persons with the effect that on 15.11.2001 in the night at about 10 PM, the accused persons have assaulted one Lakhan, S/o Jokhan Minj by hand, fists, kicks and lathi which was seen by one Johan Urao, his wife and daughter. After the incident of assault, Lakhan came back to his house and wentt for a sleep due to his internal injuries, he died at about 12 in the night. Today morning, his daughter namely Saroj has informed him that her elder father has died. When he went to the house of Lakhan, he saw his dead body covered with a cloth and therefore he lodged the report. The Police have registered the FIR against the accused persons for the offence under Section 302/34 of IPC vide Ex-P/2 and started investigation. Inquest Ex-P/3 was prepared in presence of the witnesses. The body of the deceased was sent for post mortem to the Community Health Centre, Balrampur where Dr. B.R. Ratre (PW-1) has conducted the post mortem of the dead body and gave his report 3 (Ex-P/1). While examining the dead body, the Doctor has noticed that Yellow Color like paste applied on the face and legs of the deceased and in internal examination he was found that Trachea was filled by dark color fluid, left lobe of lung was pearced from the back side near the 5th rib, size about 2cm, blood collected on his plural cavity. The 5th rib from back side was fractured and damaged the left lobe of lung, for this reason, dark color blood was collected in plural cavity . The doctor has opined that the mode of death is syncop and the nature of death is homicidal. Spot map (Ex-P/6) was prepared by the Police. The accused persons were arrested on 17- 11-2001. After recording statements of the witnesses under Section 161 of Cr.P.C. and after completion of investigation, the charge sheet was filed before the learned Judicial Magistrate, First Class, Ramanujganj.
4. After committal of the case to the Trial Court, the learned Trial Court has framed charge against the accused persons for the offence under Section 302/34 of IPC. The accused persons abjured their guilt and claimed trial.
5. In order to establish the charge against the accused persons the prosecution has examined 08 witnesses.
6. The statement under Section 313 of Cr.P.C. the accused persons have been recorded in which they denied the material appears against them and pleaded that they are innocent and have been falsely implicated in the offence and have submitted that the deceased died due to consuming of liquor.
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7. After appreciation of evidence the learned Trial Court has convicted the appellants for the offence under Section 304 Part II/34 of IPC and sentenced him for R.I. for 10 years with fine of Rs. 100/- , in default of payment of fine further R.I. for 01 month whereas the accused HalKhori, S/o Hardayal has been acquitted by the learned Trial Court hence this appeal.
8. Learned counsel for the appellant would submit that the appellants are innocent and has been falsely implicated in the offence, no offence has been committed by them as alleged. The prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. There are material omission and contradictions in the evidence of the prosecution witnesses. There are no external injuries have been found on the body of the deceased. Had it been the case that the deceased was assaulted by the said persons by means of hand, fist, kicks & lathi, he must would have received the external injuries whereas the Doctor has not found any external injuries over his body. He died due to Syncop as a result of injury to the left lobe of lung which was caused due to the reason that her left 5th rib was fractured which pierced his left lobe of lung and therefore the appellants are not liable for causing death of the deceased. He is further submit that even if the prosecution would be able to prove the involvement of the appellant in crime in question, the offence does not travel beyond the scope of Section 325 of IPC. The appellants are remained in jail for about more than 2 years and after altering their conviction from 304 Part 2 of IPC to 325 of IPC, 5 they may be sentenced for the period already undergone by them.
9. On the other hand, learned counsel for the State has opposes the arguments advanced by the learned counsel for the appellants and have submitted that from the evidence of prosecution witnesses as also the evidence of doctor, who has conducted the post mortem of the dead body of the deceased, the involvement of the appellant in crime in question and the liability of the appellants in causing death of the deceased is proved and the learned Trial Court has rightly convicted and sentenced the appellant which needs no interference.
10. I have heard the learned counsel for the parties, considered their rival submissions and went through the records carefully.
11. The deceased has died due to Syncop which is as a result of rupture of left lobe of lung and collection of blood in his plural cavity. Admittedly there is no external injuries over the body of the deceased, which has also been proved by the Dr. B.R. Ratre. (PW-
1).
12. Anita Urao (PW-5) has stated in her deposition that in the last year when she was going to watch Ramleela, on the way the two accused persons namely Natai and Devdhari were assaulting Lakhan by kicks. Lakhan was lying on the ground at that time. The third accused Halkhori was not there at the time of assaulting by Natai and Devdhari. In his presence no one has intervened in the quarrel. In cross examination, she admits that when she was passing through the road the appellants and Lakhan were committing nuisance after consuming liquor. They were committing 6 nuisance on the road from which she and other villagers were going to watch Ramleela. She was all alone at the time of incident, after seen the incident she has not gone to watch Ramleela and returned back to her house. But for minor ommision and contradiction this witnesses has remained firm in saying that both the appellants have assaulted the deceased Lakhan by kicks and she saw the incident.
13. PW-6 Miriya Urao, who is the wife of the deceased, has stated in her deposition that on the date of incident her husband went outside of her house in the evening and after being assault made with him, Bitkuriya and Johan have taken him back to her house. They informed her that Devdhari and Natai have assaulted her husband by fists and kicks near the house of Girja. Her husband Lakhan has not informed her as to who assaulted him because he was not in conscious condition. She has not seen any external injuries over his body, no blood was oozing out from his body. In cross-examination she has stated that she could not know as to whether her husband had consumed liquor or not on the date of incident. She has stated about the incident whatever informed to her by Bituriya and Johan.
14. Viktoriya Urao (PW-7) has stated in her deposition that she and her husband Johan had gone to the house of Sitaram for consuming liquor and after consuming liquor when they were returning back to their house they saw that Natai was assaulting the deceased Lakhan, they intervened and get them separated. In the same night Lakhan has died and in the morning she came to know that from the quarrel who place between Lakhan and Natai, Lakhan has died. 7 These witnesses have declared hostile because she resile from her case diary statement and stated before the Court that it is only Natai, who has assaulted the deceased Lakhan. In cross examination she has admitted that Lakhan was in drunken condition and regularely used to consume liquor. She came in the end of quarrel and after intervening between them, she get them separated and asked the Dukhraj who is the brother of the deceased Lakhan to take him back to his house.
15. PW- 8 Johan Kujur has stated in her deposition as his wife PW- 7 Viktoria says he two has been declared hostile and in cross examination he has admitted that he could not see as to who were present there because there was a complete darkness. When the question has been asked by the court, he has stated that he found the deceased Lakhan in drunken condition but he has not seen any injuries over his body. Lakhan was not able to walk without any support. He intervened in the quarrel between Lakhan and Natai and got them separated.
16. From the evidence it is quite vivid from the evidence of PW 5, 6, 7 & 8 that the appellants have assaulted the deceased by hand and fists/kicks. None of the witnesses have stated that deceased was being assaulted by means of clubs. For what reason they assaulted the deceased by hand and fists/kicks, has not been proved by the prosecution but the facts remains that the deceased was being assaulted by the appellant by hand and fists/kicks. The quarrel was being intervened by the witnesses and they have got separated 8 them and send the deceased in his House along with his brother Dukhraj and therefore the learned Trial Court has rightly coming to the conclusion that the accused persons/appellant are involved in causing injuries to the deceased.
17. Now the second question here is whether the assault made by the appellants would fall under the definition of culpable homicide not amounting to murder or they deserve to be convicted for some lesser offence.
18. The participation of the appellants in crime in question has been proved by the witnesses. Although, the appellants were not having any weapon in their hands and they assaulted the deceased by hand, fists and kicks. The origin of the quarrel has not been stated by any of the witnesses. The place of incident, the condition of the appellants as well as the deceased as stated by the witnesses that all of them have consumed liquor and quarreling, and the nature of injuries would take this court to draw the conclusion that the incident of assault may have been spontaneous and without premeditation. However, the fact remains that the appellant has not used any weapon nor the injuries inflicted by them were of such nature which may amount to culpable homicide not amounting to murder. The deceased had not received any external injuries. He was being taken to his house and in the night he died. Neither any injuries were seen by his wife Miriya Uraon nor any blood was oozing out from his body. In the postmortem report, the deceased was found to have sustained fracture of left 5th rib from back side which pierced 9 his left lobe of lung and thereby blood collected on his plural cavity. When the appellant has not used any weapon but has caused grievous injuries by hand fist and kicks, they are guilty of causing grievous heart. Their act of giving fists and kicks blow to the deceased might have developed on the spot due to the circumstances best known to them only. The death seems to have taken place due to rupture of left lung, which in turn was probably due to fracture 5th rib of left side. The death was therefore not the direct result of the assault made by the appellants, but it was due to indirect result because of rupture of lung due to fracture of rib. Their intention to cause grievous injuries which is punishable under Section 325 of I.P.C.
19. The Hon'ble Supreme Court in the matter of Parusuraman alias Velladurai and others Vs. State of Tamilnadu, AIR 1993 SC 141, 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 10 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 the appellants, and the injury suffered by the deceased on his liver was at best accidental."
21. This Court may also profitably refer to the law laid down by Hon'ble the Supreme Court in the matter of Sheikh Karimullah alias Babu and others Vs. State of Andhra Pradesh, 2009 (11) SCC 371.
22. In view of the above, this Court is of the considered view that the act committed by the appellants would fall under section 325 read with section 34 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 Part-II read with Section 34 of IPC is therefore set aside and instead thereof they are convicted for 11 committing offence under section 325 read with section 34 of I.P.C. and sentenced for the period already undergone by them. The appellants are remained in jail from 18-11-2001 Up to 27-06-2003 and thereafter from the date of judgement 27-06-2003 to 31-07- 2003 which comes about 01 year 08 months and 14 days. The appellants are on bail. Their bail bond shall remain in operation for further period of six months in view of the provisions of section 437- A of Cr.P.C.
23. For the fore going reasons, the appeal is partly allowed.
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.
Sd/-
(Ravindra Kumar Agrawal) Judge Sagrika