Partly allowed

Dhalan Singh @ Raju Thakur v. State

Chhattisgarh HC1 Sept 2014CRA/2461/1999

Case brief

AI extract

What is this about?

Criminal appeal challenging conviction for murder. Court held incident arose from sudden quarrel in heat of passion without premeditation. Acquitted of murder but convicted of culpable homicide not amounting to murder under Section 304 Part-II IPC.

What did the court decide?

Acquitted of Section 302 IPC; convicted of Section 304 Part-II IPC; sentenced to period already undergone in jail.

Dhalan Singh @ Raju Thakur Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2014)

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IN THE HIGH COURT OF JUDICATURE, M.P. : JABALPUR.
CIMINALR APPEAL N0. QLW\ OF 1999'
Dhal singh alias Rauj Thakur,
s/o Manharan Singh,
Aged abcut 30 years.
R/o village — Raipura,
Mahadeoghht Road, Raipur,
District- Raipur, 0 0 . APPLICANT
(In Jail)
/ /
VERSUS
f gxo'>"& The stateof Madhya Pradesh, no... RESPONDENT
CRIMII‘EL APPEAL UNDER SECTION 374(2) OF CRIMINAL PROCEDURE

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HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH

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

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Criminal Appeal No.2461 of 1999

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Appellant Dhal Singh alias Raju Thakur In Jail

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Versus

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Responden‘ The State of Madhya Pradesh (Now Chhattisgarh)

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Present: Smt. Kiran Jain, counsel for the appellant. Shri DK Gwalre, Govt. Advocate for the State.

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JUDGMENT

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(Delivered^{on1stSeptember,2014)}

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This appeal arises out of the judgment of conviction and order of sentence dated 2.8.1999 passed by 7th Additional Sessions Judge‘ Raipur (MP) in S.T.No.407/98 convicting the accused/appellant under :Section 302 of IPC and sentencing^himtoundergo life imprisonment, to pay a tine of Rs.500/— and in default thereof to undergo R.l. for three months.

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In the present case, name of the deceased is Dilip Marar, who was vegetable vendor. It is alleged that on 14.8.1998 the deceased, Durga Prasad (PW-4) and Sevakram (PW-14) came to the hotel of the accused/appellant and had their breakfast there. It is further case of the prosecution that one unknown person had also taken samosa from the said hostel and made some complaint to the accused/appellant regarding quality^{ofthesame,whereupontherewas} quarrel^between

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the accused/appellant and the said person. When the deceased intervened in the said matter, he was assaulted by the accused/appellant with a club on his head. On the basis of report lodged Durga Prasad (PW-4), an entry was made in the Rojnamchasanha (EXP/9). Injured Dilip was medicaily examined on 14.8.1998 by PW—1 Dr.M.P. Pujari who noticed one lacerated wound on the Ieft side of the head in the size of 3 cm x 2 cm x bone deep vide Ex.P/1. Thereafter, Diiip was hospitalized in District Hospital, Raipur, however, he succumbed to his injuries on 15.8.1998 at about 8 am. Memo from the hospital was sent, based on which merg intimation (EXP/22)^{wasrecordedand} thereafter, FIR (EXP/23) was registered on the same day for the offence under Section 302 of IPC against the accused/appellant. Postmortem on the body of the deceased was conducted on 15.8.1998 by PW—11 Dr. Arvindra Neralwar vide Ex.P/11 in which he noticed one lacerated wound over left parietal area of size 5 x 2 cm x bone deep and opined that the cause of death was coma 1.. “due to head injury and the death was homicidal in nature. After investigation, charge sheet was filed against the accused/appellant under Section 302 of IPC and accordingly, charge was framed against him.

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O3. So as to hold the accused/appellant guilty, the prosecution examined as many as 17 witnesses. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case,. pleaded innocence and false implication. In defence, he examined Rajaram Sahu and Dr. Tribhuvan Jain as DW-1 & DW-2

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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 of this judgment.

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Learned counsel for the appellant submits as under:

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(i) that the accused/appellant is innocent and has been falsely implicated in this case; (ii) that statements of eyewitnesses PW—4 Durga Prasad and PW—14 Sevakram are not reliable as there are material omissions and contradictions in the same.

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(iii) that at the time of incident, the accused/appellant had fracture on his right hand, it was under plaster and therefore, the question of making ‘ assault by him on the deceased does not arise;

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(iv) though on the basis of memorandum of the accused/appellant 5 (EXP/13), seizure of club (EXP/14) was made but as per^FSLreport (EXP/24)^{therewasnobloodon} it and as such, recovery of club at the instance of accused/appellant is of no significance;

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(v) even if the prosecution case is taken as it, considering the fact that the incident occurred on a sudden quarrel, without premeditation or .intention on the part of the accused/appellant, 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 Pait-ll of IPC;

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(vi) that the accused/appellant has already remained in jail^formore

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than six years and therefore, keeping in view the fact that the incident occurred 16 years back, after converting his conviction into Section 304 Part—II of IPC, he may be sentenced to the period aiready undergone by him.

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O6. On the other hand, supporting the impugned judgment^it has been argued by learned counsel for the State that conviction of the accused/appeHant is strictiy in accordance with law and there is no iliegality or infirmity in the judgment impugned warranting interference by this Court.

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Heard learned counsei for the parties^and perused the material avaiiable on record.

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PW—4 Durga Prasad, an eyewitness to the incident, whiie supporting the prosecution case has stated that on the date of incident he aiong with the deceased and Sevakram was returning after selling their vegetables, on the way they consumed liquor together and t, thereafter went to the hostel of the accused/appellant and had their breakfast there. When they were in the hotel, one person had also taken ‘ somasa from the accused/appellant and had made complaint regarding quality of the same, on which there was quarrel between the accused/appellant and the said person. When the deceased intervened in that matter, the accused/appellant first abused the deceased and thereafter gave a blow of club on his head. He has stated‘that the accused/appellant had also threatened him and Sevakram and thereafter, they took the deceased along with them. He has stated that .he lodged report of the said incident, which was entered in the

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Rojnamchasanha and thereafter the deceased was hospitalized, ‘however, he succumbed to his injuries on 15.8.1998. In crossexamination, this witness remained very firm and reiterated as to the manner in which the deceased was assaulted by the accused/appellant.

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PW—14 Sevakram, another eyewitness to the incident, while supporting the prosecution case has made almost similar statement as has been made by PW—4 Durga Prasad. He has stated that while he along with the deceased and Durga Prasad were taking their breakfast in the hotel of the accused/appellant, one unknown person came there, he asked for samosa from the accused/appellant and thereafter he complained to the accused/appellant regarding its quality, on which there was quarrel between the accused/appellant and the said person. When the deceased tried to intervene in the said matter, he was assaulted by the accused/appellant with club. He has stated that the accused/appellant had also threatened him and Durga Prasad. He has 'admitted in cross—examination that there was no dispute or quarrel l between the accused/appellant, deceased, Durga Prasad and himself and has further stated that the accused/appellant was quarreling with another person and when the deceased intervened in that matter he was assaulted by the accused/appellant. In the lengthy cross-examination this witness also remained very firm and nothing could be elicited from him by the defence to make his evidence untrustworthy or doubtful.

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PW-1 Dr. M.P. Pujari medically examined the deceased in injured ’condition on 14.8.1998 vide Ex.P/1 wherein he noticed one lacerated wound on the left side of the head in the size of 3 cm x 2 cm x bone deep and opined that the said injurycan be caused by some hard and

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blunt object. In para-5 he has admitted that if a person under the influence of liquor falls on any pointed stone, he may suffer such kind of injury. PW—5 Kripai is eider brother of the deceased and a witness to inquest notice Ex.P/5, inquest Ex.P/6 and he was handed over dead body of the deceased after inquest vide Ex.P/4. PW—6 Punitram is a twitness to inquest notice and inquest. He came to know about the l.‘ incident after it had taken piace. PW—7 Balram Sahu, Police Constable, PW—8 Shivjati Giri, Assistant Sub Inspector, PW—9 Ganeshram Kurre & PW—1O Jethuram Verma, Head Constable and PW—16 Y.N. Dubey, Assistant Sub Inspector, helped in the investigation. PW-11 Dr. Ravindra Neralwar conducted postmortem on the body of the deceased on 15.8.1998 vide Ex.P/11 in which he noticed one lacerated wound over ‘^{leftparietalareaofsize5x2cmxbonedeepandopinedthatthecause} of death was coma due to head injury and the death was homicidal in nature. He had also examined the alleged weapon of offence — club, which was seized at the instance of accused/appellant and opined that 'the injury suffered by the deceased could be caused by the said weapon. 11. PW-12 Suresh Puri and PW—13 Sujan Giri Goswami, witnesses to ‘ memorandum (EXP/13) of the accused/appellant and seizure (EXP/14) of club, have turned hostile, however, they have admitted their signatures on these documents. PW—15 S.R Kosariya, Assistant Sub inspector, did part of the investigation. PW—17 S.P. Jetawant, investigating ofhcer, has duly supported the prosecution case.

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DW-1 Rajaram Sahu, Constable in Central Jail, Raipur, has stated that on 17.8.1998 the accused/appellant was admitted in the jail and at

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that time there^{wasbandageonhis} Ieft arm and the^{accused/appellant} had informed^{thatthesaidinjurywassufferedbyhiminsomeaccident.} ‘DW-2 Dr. Tribhuvan tJain has stated that he had treated the accused/appellant^{fortheinjuryonhisshoulder.}

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Close scrutiny of the^{evidencemakesitclearthaton14.8.1998the} deceased along with PW—4 Durga Prasad and PW—14 Sevakram had A gone^tothe hotel of the accused/appellant^{afterconsuming} liquor and while they were^{havingtheirbreakfastthere,oneunknownpersoncame} there and asked^{forsamosafromtheaccused/appellantandaftertasting} ‘the same he complained about its quality to the accused/appellant. Thereupon there^{washottalkbetweentheaccused/appellantandthat} When the deceased intervened in that matter, the person. accused/appellant^{abusedhimfirstandthenassaultedhimonhishead} with a club as^{aresultofwhichthedeceased} fell down and^wasthen taken to hospital,^{however,onthenextdayhesuccumbedtohisinjuryin} the hospital. Conviction of the accused/appellant is based on the t ’evidence of eyewitnesses^{PW—4DurgaPrasadandPW—14Sevakram.} They have duly supported the prosecution case. There is nothing on record to show that these witnesses were having any animosity or enmity with the^{accused/appellantforhisfalseimplication.There} is no reason for this Court to disbelieve the evidence of these witnesses. Thus, considering the^{unrebuttedevidenceoftheeyewitnesses,which} finds due corroboration^{fromthemedicalevidencealso,weare} of the ~opinion it is the accused/appellant^who killed the deceased by that assaulting him with club^onhishead.

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Now the question which^{arisesforconslderationofthisCourtisas}

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to whether act of the accused/appellant amounts to murder or falls within any of the exceptions to Section 300 of IPC?

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The evidence goes to show that there was no previous animosity or enmity between the accused/appellant and the deceased. The incident took place when the deceased intervened in the quarrel between the accused/appellant and one customer over quality of a.’ samosa. As per prosecution case itself, on the date of incident the deceased was drunk and this has been admitted by the eyewitnesses (PW-4^& PW—14). Therefore, this possibility^can not be ruled out that while intervening in the said matter, the deceased would have misbehaved with the accused/appellant or hurled abuses at him and on account of this sudden provocation, the accused/appellant assaulted the deceased with club. Thus, in the totality of facts and circumstances of the case, it is apparent that there was no premeditation on the pait of the accused/appellant, the incident occurred on a sudden fight in the heat of passion^uponasudden quarrel^andhedidnot act in an unusual or cruel i manner. As such, act of the accused/appellant 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 left 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 Part-ll of IPC instead of Section 302 of IPC. As regards sentence, the record reveals that the accused/appellant has

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already remained in jail for more than six years and therefore, considering^{thefactsandcircumstancesofthecaseandthattheincident} is of the year^{1998,weareoftheopinionthatendsofjusticeWouldbe} ‘ served^{ifinsteadofsendingtheappeiiantbacktojail,heissentencedto} the period^{alreadyundergonebyhim.}

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ln the result, the^appeal is allowed in part.^While acquitting^the

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’1: appellant^{ofthechargeunderSection302} of^{IPC,heisheldguiltyforthe} offence^{underSection304} Part—ll of IPC and^sentenced to the period already^{undergonebyhim.Heisonbail,therefore,hisbailbondsshall} continue^fora period^{ofsixmonthsfromtodayinviewofSection437-A}

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of Cr.P.C.

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Sd/~
Chief Justice

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Sdl-
Pritinker Diwaker
Judge

Dhalan Singh @ Raju Thakur v. State

Case brief

What is this about?

What did the court decide?

Dhalan Singh @ Raju Thakur v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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