Partly allowed

Stephan @ Tephan Khalkho v. the State of C.G.

Chhattisgarh HC7 Feb 2014CRA/2555/1998

Case brief

AI extract

What is this about?

The High Court set aside the murder conviction and sentenced the appellant to life imprisonment for culpable homicide, ruling the case was due to a sudden surge of emotion without prior motive.

What did the court decide?

Conviction under Section 302 IPC set aside; convicting the appellant under Section 304(II) IPC and remitting the sentence to the period already undergone.

Stephan @ Tephan Khalkho Vs the State of… — Murder and Culpable Homicide | Chhattisgarh HC (2014)

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it is explained to the prisoner that if he states or wishes to be represented by legal practitioaer theAppeliste Courf will .not proceed with the base for seven days' unless fehe legal ^ractitioner appears* If fche legal practifcioner does not appear with-in seven days he may not heard lat all^ If •fch^ prisoner states that he does not wish to be repr.esented by leggl practiofciopier the court may prbceed at,pnce with the V. ca^e and will not be obliged to give a hearing 'to any legal pracfctfcioner who should appear.

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Continued in ^^^^r^r^_ Jail ^^-^^^•^^^T^^^_—..;'-..

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N0. ,..^Q^.^_ Dated _,A-^^.!-3^199 _-!:„..-—..—,.,

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5rward to th.e CHIEF.. JUDJCIAL r^GISTRATE ^^7/?//<A^A>/rJ/^<^j^d^{/^

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^) gather which a copy 6f order passed in tj-ie case for fav0ur<l';' ''' >:v^

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o£ t^rahsH}i'ssion to the proper Appelliate Court,

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Superinfeendent'

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Memo of Appeal of. :the Appellate Cou.rt^^^_^«^^04_t^J'}-t^^l^y^

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No. ___.:^k^^»..._Dated ^1.^,^^^'199%^.,

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C o J < gi sjc^ t e

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Hsgb Coaft of ^.^^y& S^ya^^^i Date Qj&BX2^<Oilipfc in AT^peliate Courfc Recei Kegistraticm No-... ^n' s .^ ^watp^Oerfc: H?Sh CowtJaha^r

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HIGH COURT OF CHHATTISGARH AT BILASPU

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

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Criminal Appeal No. 2555 of 1998

APPELLANT

Stephan @ Tephan

VERSUS

RESPONDENT

State of Madhya Pradesh (Now Chhattisgarh)

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Smt. Smriti Shrivastava, counsel for the accused/appellant. ShriAkhil Mishra, GAforthe respondent/State.

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JUDGMENT (07.02.2014)

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This appeal has been preferred against the judgment and order dated 21.8.1998 passed by Additional Sessions Judge, Ambikapur (Sarguja) in Sessions Triai No. 209/97 convicting the accused/appellant under Section 302 IPC and sentencing him to undergo imprisonment for life.

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Name of the deceased in this case is Dogalaram and the date of incident is 12.3.1997. According to the case of the on the date of incident when the accused/appellant prosecution, was raising a wall of his house, the deceased reachedthere, some altercation between the two ensued and in the heat of passion the accused/appellant assaulted the deceased with a plough and as a result of the injuries suffered by him he died.

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Merg intimation Ex. P-2 was recorded at the instance of Biguram (PW-6) and immediately thereafter FIR Ex. P-1 also came to be registered. Postmortem examination was conducted by Dr. S.P. Vaisya (PW-7) and according to him cause of death was coma and shock due to brain injuries inflicted by hard and blunt object. After investigation, charge sheet was filed by the police under Section 302 IPC and thereafter the charge was also framed accordingly.

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In support of its case the prosecution has examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

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By the judgment impugned the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. Hence this appeal.

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Counsel for the accused/appellant submitsthat even if the entire case of the prosecution is taken as it is, accused/appellant cannot be convicted under Section 302 IPC and at best his act would fall under Section 304 (II) IPC. She submits that there was no premeditation on the part of the accused/appellant to cause death of the deceased and it is for some trivial issue the accused/appellant got passionate and in the heat of passion the deceased was assaulted by him leading to his unfortunatedeath.

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She submits that if it is not a case of clear-cut acquittal, looking to the fact that the accused/appellant has already remained in jail for about 7 years, in the larger interest of justice the sentence imposed on him may be reduced to the period already undergone by him after convicting him under Section 304 (II) IPC.

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On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the court below convicting and sentencing the accused/appellant as mentioned above are strictly in accordance with law and they do notsuffer from any illegality or infirmity. He submits that number of eyewitnesses including the lodger of FIR are there who have categorically supported the case of the prosecution and therefore, the well reasoned findings of the Court below cannot be disturbed.

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Heard counsel for the parties and perused the material available on record.

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Raghuvar Prasad (PW-1), Manoj (PW-2), Charitraram (PW3), Koleshwar (PW-5) and^Biguram (PW-6)^{aretheeyewitnesses} to the incident and they have stated that on the date of incident when the accused/appellant was raising the wall of his house, deceased came there, some dispute arose between them and the accused/appellant assaulted him with the plough which ultimately led to his death. All these witnesses have further stated that there

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was no previous dispute between the deceased and the accused and the relations between them were cordial. Sundho (PW-4) - a child witness has simply stated that she saw the accused/appellant assaulting the deceased. Dr. S.P. Vaishya (PW-7) is the witness who conducted postmortem examination on the body of the deceased and noticed three injuries including fracture of occipital bone of skull. According to this witness, cause of death was coma and shock due to brain injuries inflicted by hard and blunt object. Mohar Sai (PW-8) is the Patwari who prepared spot map (Ex. P-9). Ram Janam (PW-9) is the witness to inquest (Ex. P-4) and seizure of plough, plain as well as blood stained soil, piece of cloth etc. made under Ex. P-11 & P-12. According to this witness, he had signed these documents on being asked by the police. Piyush Toppo (PW-10) is the investigating officer who has duly supported the case of the prosecution.

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Perusal of the record makes one thing clear that there was no prior dispute between the accused^{andthedeceasedandthe} relations between them were cordial. Of course, there are eye witnesses to incident who have stated that the accused/appellant assaulted the deceased with the help of plough but this is not enough for his conviction under Section 302 IPC because for doing so the prosecution has to establish that there was any prior motive behind the commission of murder. In this case according to the facts unfurled by the prosecution, on the fateful day when

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the accused was raising the wall of this house, deceased came over there and there was some verbal feud between them which in the long run turned into the physical assault teading to the tragic death of the deceased. It is not also the case of the prosecution that the accused/appellant was armed with any deadly weapon and was nurturing an intention to finish the deceased but all unfortunate happened in a fit of fury. The prosecution has utterly failed to prove that the accused/appellant and the deceasedwere not on good terms, rather the witnesses have stated that the relations between them were cordial. In these circumstances this court is of the considered opinion that the findings recorded by the Court below are not in accord with the evidence of the witnesses and that being so the interference by this Court is necessary.

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Since the incident had occurred on the spur of moment where being driven by the sudden surge of in-controllable emotion the accused/appellant got impatient and chose the way of assault which by no stretch of imagination can make the accused guilty of an offence punishable^{underSection302IPC.} But the fact remains that one person has lost his life on account of the act of the accused/appellant, he cannot escape the rigour of Section 304 (II) IPC. That being so, the conviction of the accused/appellant under Section 302 IPC being contrary to the material available on record is set aside. However, the accused/appellant is convicted under Section 304 (II) IPC.

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As regards sentence, the record goes to show that the accused/appellant has already remained inside for about seven years and therefore we deem it appropriate to sentence him to the period already undergone by him.

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The accused/appellant is on bail. His bail bonds shall continue for a period of six months from today in view of Section 437-ACr.P.C.

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In view of above, appeal succeeds in part with the

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modification particularized above.

Sd/-

Chief Justice

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Sd/Pritinker Diwaker Judge

Stephan @ Tephan Khalkho v. the State of C.G.

Case brief

What is this about?

What did the court decide?

Stephan @ Tephan Khalkho v. the State of C.G.

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

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