Partly allowed

Barnavas v. State

Chhattisgarh HC4 Sept 2014CRA/1234/1999

Case brief

AI extract

What is this about?

This Division Bench allowed the criminal appeal in part. The court held that the act constituted culpable homicide not amounting to murder under Section 304 Part-II IPC, reducing the conviction from murder. The appellant was sentenced to the period already undergone in jail.

What did the court decide?

Conviction under Section 302 IPC quashed; convicted under Section 304 Part-II IPC; sentenced to period already undergone in jail.

Barnavas Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2014)

E^l|

BiB

E>8

CF0000062812 *'^Ti>:'^^ itIlrfMj

¶7

¶8

"allotted by the High Court legal Services Committee

¶9

snsuMij

¶10

IH.,3'HE HIGH CQHR3: QS 3USS.C1SVSS SS: SSS&iSO'S.s 6&XHIHM. SP'PBffii HO. _"2^'3> <-\ QS 1999 { aPEEIA.-SHC 33S&NAVAS, S/o Malai iaijur,Aged 42 years, Oecupatioa-Service, < ^^ Resideat of Ratba, P.S.Bagjy»a^-<><^.••'"' ""'t.^y .. /.t ts.A-ff-9'' ..r .^•>" oistrict ^^ffiUR N&csaR (M.P) : ^i»"1 •^Ei..^."••*""'" -vBsaJS-

¶11

RESPO^DBn; s SSSZE O? HaHH5''& ER&DSSH.

¶12

SPPBM. USD^ SSCSION 374 OS CSlIMIHaEi PROCSBURB COISs

_B3SEIi

<br>

""ssa^, ...^a""3 •?i.

¶17

'5^-

¶18

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶19

DIVISION BENCH

¶20

CORAM: HON'BLE MR. YATINDRA SINGH C.J. & HON'BLE MR. PRITINKER DIWAKER. J

¶21

Criminal Appeal No.1234 of 1999

Appellant InJaLI

Barnavas

Versus

Respondent State of Madhya Pradesh (Now Chhattisgarh)

¶26

Present: Shri Shailendra Dubey, counsel for the appellant. Shri Garry Mukhopadhyay, Dy. Govt. Advocate for the

¶27

State.

¶28

JUDGMENT

¶29

(Delivered on 4th September, 2014)

¶30

This appeal arises out of the judgment of conviction and order of sentence dated 24.2.1999 passed by the Additional Sessions Judge, Jashpur Nagar (MP) in S.T.No. 174/98 convicting the accused/appellant under Section 302 of IPC and sentencing him to undergo life imprisonment, to pay a fine of Rs.5000/- and in default thereof to undergo additional S.l. for five years.

¶31

In the present case, name ofthe deceased is Patras Kujur, uncle of the accused/appellant. It is alleged that there was some dispute between deceased Patras Kujur and father of the accused/appellant Mani over pari:ition oftheir ancestral land and on 27.4.1998 at 9.35 pm the accused/appellant and his father Maini entered the house of Patras Kujur, there was some hot talk between them and during that quarrel, the accused/appellant picked a wooden log (commonly used as handle

¶32

¶33

¶34

of the plough) and gave a blow on the head of the Patras Kujur, as a result ofwhich he fell down. FIR (Ex.P/1) was lodged on 27.4.1998 by PW-1 Amrit Kujur, son of the deceased, against the accused/appellant and his father Maini, on the basis of which offence under Section 307 of IPC was registered against them. Injured Patras Kujur was medically examined on 28.4.1998 by PW-11 Dr. C.D. Bakhla vide Ex.P/8 wherein he noticed two lacerated wounds and abrasion on the body of the injured and advised for x-ray. According to him, the injuries were grievous in nature and caused by any hard and blunt object. On 29.4.1998 Patras Kujur succumbed to his injuries in the hospital and based on the information received from the hospital, merg intimation Ex.P/6 was recorded on 29.4.1998. Postmortem on the body of the deceased was conducted on 29.4.1998 by PW-13 Dr. Jyotikumar Jain vide Ex.P/11 in which he noticed four lacerated wounds and three abrasions on the body of the deceased and opined that the cause of death was coma and trauma due to injury to brain and head. After investigation, charge sheet was filed against the accused persons under Section 302/34 of IPC and accordingly, charge was framed againstthem.

¶35

So as to hold the accused persons guilty, the prosecution examined as many as 14 witnesses. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In defence, Tempu Uraon and Pramod Kumar Lakda were examined as DW-1 & DW-2 respectively.

¶36

¶37

-2

¶38

During pendency of the trial, accused Maini had expired and therefore, the trial was proceeded only against the present appellant.

¶39

The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para-1 ofthisjudgment.

¶40

Learned counsel for the appellant submits as under:

¶41

(i) that in the present case all the interested witnesses have been examined by the prosecution;

¶42

(ii) that statements of PW-1 Amrit Kujur, PW-2 Phoolsundari, PW-3 Apolina Minj, PW-4 Silvester and PW-5 Jaiprakash Kujur are selfcontradictory and they have given different versionwhile narrating the incident and as such, they are not reliable witnesses;

¶43

(iii) that in the same incident, deceased accused Maini had also suffered injuries on his head, he was medically examined, he had also gone to police station for lodging report but the same was not recorded for the reasons best known to the police authorities;

¶44

(iv) even if the entire prosecution case is taken as it, it is clear that there was no intention of the accused/appellant to kill the deceased and considering the fact that the incident occurred on a sudden quarrel, without premeditation or intention on the part of the accused/appellant and that there was a counter case against the complainant party, the act of the accused/appellant is squarely covered by Exception 4 to Section 300 of IPC and at best he can be held guilty for the offence under Section 304 Part-11 of IPC;

¶45

¶46

¶47

(v) that the accused/appellant has atready remained in jail for more than seven years and therefore, keeping in view the fact that the incident occurred 16 years back, after converting his conviction into Section 304 Part-11 of IPC, he may be sentenced to the period already undergone by him.

¶48

On the other hand, supporting the impugned judgment it has been argued by learned counsel for the State that conviction of the accused/appellant is strictly in accordance with law and there is no illegality or infirmity in the judgment impugned warranting interference by this Court.

¶49

Heard learned counsel for the parties and perused the material availableon record.

¶50

PW-1 Amrit Kujur is the first informant and son of the deceased. He has stated that the accused/appellant is his brother whereas deceased accused Maini was his uncle. On the date of incident the accused persons entered his house, the accused/appellant asked his father that the disputed land has been given to them in partition, on which it was replied by his father Patras that partition was done by their father and then the accused/appellant picked up a wooden log lying there and gave a blow with it on the head of his father, as a result of which he fell down and thereafter they fled from the spot. In crossexamination this witness has remained very firm and reiterated as to the manner in which his father was done to death by the accused/appellant. In para-7 he has admitted the fact that before he could reach police station, deceased accused Maini had already lodged a report against his

¶51

•y

¶52

father/deceased. However, he is not aware about the fact that Mani had suffered any injury.

¶53

PW-2 Phoolsundari is daughter-in-law of the deceased in relation. She was also present in the house of the deceased at the time of incident. While supporting the prosecution case, she too has stated that after entering the house of the deceased, the accused/appellant gave a blow of wooden log on the head of the deceased as a result of which he died. In cross-examination, this witness also remained very firm. However, in para-2 of her cross-examination she too has admitted the fact that in the same incident deceased accused Maini had also suffered injury but she is not aware as to how he sustained such injury.

¶54

PW-3 Apolina Minj, PW-4 Silvester and PW-5 Jaiprakash Kujur are other eyewitnesses to the incident. They have also fully supported the prosecution case and have categorically stated as to the manner in which the incident had taken place and the deceased was killed by the accused/appellant. PW-6 Jagatram is a witness to seizure (Ex.P/2) whereby plain and bloodstained soil and weapon of offence were seized. He has duly supported the prosecution case. PW-7 Parasnath Thakur, Head Constable, registered FIR (Ex.P/1) on the basis of report lodged by PW-1 and sent the deceased in injured condition to Govt. Hospital, Bagicha for medical examination vide Ex.P/3. PW-8 Jaikishore Vishwakarma, Head Constable and PW-9 Prem Singh, Constable, helped in the initial investigation. PW-10 Sahuram Dhritlahre, Sub Inspector, had recorded merg intimation (Ex.P/6) and asked Patwari to prepare the spot map. PW-11 Dr. C.D. Bakhla medically examined the deceased in injured condition on 27.4.1998 vide Ex.P/8 and noticed

¶55

¶56

following injuries on his person:

¶57

(i) three abrasions over left eyebrow each measuring 2 % x 1 % inch; (ii) lacerated wound over left ear on the parietal region of the head measuring 2 %x 1 x% cm;

¶58

(iii) lacerated crust wound on the occipital region;

¶59

In his opinion, the injuries were grievous in natureand caused by any hard and blunt object. He had also examined the wooden log seized by the police and opined vide Ex.P/9 that the injuries suffered by the injured could be caused by the said weapon.

¶60

PW-12 Namkuram, Village Kotwar, is a witness to seizure of clothes of the deceased vide Ex.P/10. PW-13 Dr. Jyotikumar Jain conducted postmortem on the body of the deceased vide Ex.P/11 wherein he noticed following injuries on the body ofthe deceased:

¶61

(i) on lacerated wound, size 4 x2 cm x bone deep, situated on the parietal region of right side of head, right parietal bone fracture and fractureline extending to the right middle cranial fossa;

¶62

(ii) on lacerated wound over left parietal region, size 2 % x 1 cm x

¶63

bone deep;

¶64

(iii) two abrasions, size 2 x 2 cm and 3 %x 2 cm on the left side of

¶65

forehead;

¶66

(iv) one abrasion, size 5 x2 cm on left side of face near left eye;

¶67

(v) one lacerated wound, size 2 % x 0.25 cm on the left side of the upper lip;

¶68

(vi) one lacerated wound, size 1 % cm x 0.25 cm on the inner aspect of left half of upper lip.

¶69

On internal examination, fracture of right parietal bone wasfound

¶70

¶71

and the fracture line was extending to right middle cranial process. In his opinion, the cause of death was coma due to injury to brain caused by trauma and head injury.

¶72

PW-14 Dr. Habib Khan first attended the deceased when he was brought to District Hospital, Ambikapur and confirmed his death.

¶73

DW-1 Tempu Uraon and DW-2 Pramod Kumar Lakda have been examined by the defence to show that the accused/appettant was not present at the place of occurrence on the date of incident.

¶74

Close scrutiny of the evidence makes it clear that there was an old land dispute between the accused/appellant, his father Main (deceased accused) and the deceased. Eyewitnesses PW-1 Amrit Kujur, PW-2 Phoolsundari, PW-3 Apotina Minj, PW-4 Silvester and PW-5 Jaiprakash Kujur have categorically stated that on 27.4.1998 there was hot talk between the accused persons and the deceased over partition of land in question; during that quarrel the accused/appellant got enraged, he picked up a wooden log lying at the place of occurrence and thereby caused injury to the deceased on his dead which ultimately resulted into his death. They have duly supported the prosecution case and there is no reason for this Court to disbelieve their statements. Thus, considering the unrebutted evidence of the eyewitnesses, which finds due corroboration from the medical evidence also, we are of the opinion that it is the accused/appellant who killed the deceased by assaulting him with a wooden log on his head.

¶75

Now the question which arises for consideration of this Court is as to whether act of the accused/appellant amounts to murder or falls within

¶76

¶77

¶78

any of the exceptions to Section 300 of IPC?

¶79

The evidence goes to show that there was no premeditation or pre-plan on the part ofthe accused/appellant to kill the deceased. On the date of incident when the accused persons went to the house of the deceased and were talking with the deceased over partition of land, there was some hot talk between them and the accused/appellant having got infuriated picked up a wooden log lying at the spot and assaulted with it on the head of the deceased which ultimately resulted into his death after about two days in the hospital. Thus, in the totality of facts and circumstances of the case, it is apparent that the incident occurred on a sudden fight in the heat of passion upon a sudden quarrel and the accused/appellant did not act in an unusual or cruel manner. As such, his act is covered by Exception 4 to Section 300 of IPC i.e. culpable homicide not amounting to murder. However, considering the nature and extent of injury caused by the appellant on vital part of the deceased with such a force resulting in fracture of right parietal bone, it also appears that though the accused/appellant had no intention to cause death of the deceased but had the knowledge that the injury being inflicted by him was likely to cause his death. That being the position, he is liable to be convicted under Section 304 Pari:-!! of IPC instead of Section 302 of IPC. As regards sentence, the record reveals that the accused/appellant has already remained in jail for more than seven years and therefore, considering the facts and circumstances of the case and that the incident is of the year 1998, we are of the opinion that ends ofjustice would be served if instead of sending the appellant back to jail, he is sentenced to the period already undergone by him.

i .^'

In the result, the appeal is allowed in part. While acquitting the appellant'ofthecharge underSection 302 oflPC, he is held guiltyforthe offence under Section 304 Part-11 of IPC and sentenced to the period already undergone by him. He is on bail, therefore, his bail bonds shall continue for a period of six months from today in view of Section 437-A

¶84

ofCr.P.C.

¶85

_J!— SdtSd/Pritinker Diwaker Chief Justice Judge

¶86

Barnavas v. State

Case brief

What is this about?

What did the court decide?

Barnavas v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Radheshyam @ Bodu Vs State

Smt.Phool Bai Jhariya Vs State

Sobran Vs the State of M.P.

Uttara Kumar Banjare Vs State

Brijendra Singh Vs State Of Chhattisgarh and Ors.

Purushottam Yadav Vs Union Of India And Ors.