Partly allowed

Kumar Patel and Anr. v. State of Chhattisgarh

Chhattisgarh HC4 Dec 2014CRA/852/2008

Case brief

AI extract

What is this about?

This High Court criminal appeal challenged a life sentence for murder. The court reclassified the appellant's conviction from murder with intent (Sec 302) to culpable homicide not amounting to murder (Sec 304 Part-II), removing common intent但从 conviction under common intention (Sec 34), but affirmed the sentences and ordered immediate release from jail.

What did the court decide?

Appellants convicted under Sec 304 PC II read with Sec 34 IPC and Sec 450 IPC; convicted under Sec 397 read with Sec 34 IPC; released forthwith.

Kumar Patel and Anr. Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2014)

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INTHE HON'BLEHIGH COURTOFCHHAmSGARH

AT BILASPUR (C: G.)

DNstBBBtBdl

CRIMINAL APPEAL NQK.

72008

APPELLANTS
(INJAIL)

Kumar Patel~ S/o Jagannath patel, ,aged aboat - 2 8 years, R/o VUla.ge - Umarada, Police Station - Kurud, District - Dhamtari (C.G.) K e s h a v r a m .S/p Raincharan Sinha, aged about 2-6 years, R/o village - Kanharpuri, P. S. - ICxrr^u.4 , District - Dhaintari (ChfiatfisgarU)

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VERSUS

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RESPONDENT

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State O f Chhattisgarh Through PoUce Station - Bhakhara, D i s tr i c t - Dhamtari (Chhattisgarh)

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APPEAL UNDER S@CTIO 374(2) ORTHECODEOF

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CRIMINAL PROCEDURE ,1973

CONVICTION

j U/s 302/34 ofIPe

U/s 307/34 ofIPC

SENTENCE Inignsoninent fbr life + fine of Rs. 100Q/-i ',' ^^B^"r' ,,:•.':•. ,'; •; . R.t.forlOyFS.-t-finej Rs. 5QO/^-.

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.teari

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HIGH COURT OF CHtiATtlSGARH. B1LASPUR

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Criminat ADpeal No.852 of 2008

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APPELLANTS: 1. KumarPatel (InJail) 2. Keshav Ram

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Versus

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RESPONDENT: State of Chhattisgarh

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{Appeal under Section 374 (2) ofthe Codeof Criminal Procedure}

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'x. Present:

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Mrs. Indira Tripathi, counsel for appellant No.1.

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Mr. Dharmesh Shrivastava, counsel for appellant No.2.

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Mr. Roshan Dubey, Panel Lawyer for the State/respondent.

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Division Bei-lBh: U 't'a"'1""'"" "" /;'; '"s«SffS ,e^. . l-lon'bl&IWKI':?. Sharma and HoriiBlenr I.S. Uboweia. JJ

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JUDQMENT ^(.4-|Z^614)

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T.P. Sharma. J:-

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Challenge in this apRealfeis itCRthe judgment of convictton & order of sentence dated 22-7-2008,1 passed by the Additional Sessions Judge, Dhamtari in Sessions; Trial IMc>Kl'7%007, whereby & whereunderlearned Additional SessiorteJ.yuclgB whjlBj acquitting co-accused Jeevan Ram, husbandof deceasecy/imla ^ai, convicted the appellants under Sections 302 read with Section 34, 307 read with Section 34, 397 read with Section 34 & 450 read with Section 34 ofthelPCand sentenced them to undergo imprisonment for life & pay fine of Rs.1,000/- each, Rl for 10 years & pay fine of Rs.500/- each, Rl for 7 years, and Rl for 7 years & pay fine of Rs.500/- each, respectively, in default of payment of total fine of Rs.2,000/each, to further undergo Rl for six months.

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Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and sentenced the appellants and thereby an committed illegality.

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As per case of the prosecution, deceased Vimla Bai was married to acquitted accused Jeevan Ram, thereafter, Jeevan Ram solemnized

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.. second marriage and deserted deceased Vimla Bai who filed application for maintenance and Rs.70,000/- maintenance was awarded to her. Out of Rs.70,OQQ/-, Jeevan Ram paid Rs.20,000/- and instead of paying remaining

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Cr.A.No.852/2008

amount of Rs.50,000/-, he entered jnto conspiracy with the present appellants who are his nephew and friend of nephew, and in furtherance of the conspiracy, both the appellants Went to the house of deceased Vimla Bai. Bhukhanlal Kalar (PW-4), father ofthe deceased, was present in his house. At about 8 p.m., the appellants went to the house of Bhukhan and knocked the door, Bhukhan provided them place for sitting, allof a sudden, they assaulted him and tried to press his neck, he shouted then his daughter Vimla Bai came, theappellants assaulted Vimla Bai and pressed her neck. The appellants committed robbery of their ornaments and the ornaments found inside the house after entering in the house and thereafter, they fled away from the spot. The investigating officer left for the scene of occurrg(ipegi|jagd|,£iftgr swBii;noning the witnesses vide Ex.P-27, inquest,(g'i|1 tt'tBSBWIiely30^ t e||^^|^|'was preparedvide Ex.P-28. ThgynJBireBwere taken to District Hospital,Bihamtarii;®n21-11-2006at1.30 '''W'a's', ,*>'SaiUi;within3hoursoftheincident.

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Dr. R.H. Mishra(13W-l|7)[«xaffiiii|ieainjured Bhukhan vicle,,Ex.P-42A and fbund abrasion overan^ri®r^ater&laspect of neck in thesize of 6" x 114" caused by hard and'yijjillfeistij^syThe injury wasdangerous and sufficient for causing death. Bleeding^n|im ear and mouth, eyes protruded, eye membrane was swollsasandjred.; Dr. R.H. Mishra (PW-37)also examined injured Vimla Bai vKl&Ex.|'-43Aar0;noticed following injuries: -

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Abrasion overliFliiriilillgtSrail aspect of neck of 414" x 1".

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Twomarksof nail over neck of 2 c.m. x '/i c.m.

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Injuries were grievous and dangerous to life. Vimla Bai was further referred to Dr. Ambedkar Hospital, Raipur. Shewas admitted in the hospital on 3011-2006. She was not in a position to breath properly. She was in ventilation. Her both limbs were not properly functioning, spinal cord was pressed. She was under treatment and died on 27-12-2006 at 7.45 a.m.. Her bed head ticket is Ex.P-36.

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Dehati nalishi was recorded at Government Hospital, Dhamtari, at the instance of Bhukhan vide Ex.P-7. Spot map was prepared vide Ex.P-7. Clothes of Bhukhan were seized vide Ex.P-1. Clothes of deceased Vimla Bai were seized vide Ex.P-6. Death was intimated to Moudhapara Police vide Ex.P-4. Morgue was recorded vide Ex.P-5 by Moudhapara Police. Numbered morgue was recorded by Police Station Bhakhara vide Ex.P-39; . FIR was registered vide Ex.P-41.

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Cr.A.No.852/2008

Dead body was sent for autopsy to Dr. B.R. Ambedkar Medical Hospital, Raipur vide Ex.P-58. Dr. Vikas Kumar Dhruw (PW-39) conducted autopsy vide Ex.P-59 and found following injuries: -

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Wound:- Bed soresacral region 8c.m. diameter withgreenish-yellowish patchy presenting foul smell. Hospital unit cervical cord compression.

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Mode ofdeath was cardio respiratoryfailure.

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During the course of investigation, appellantKumar Patel was taken into custody, he made disclosure statement ofornaments vide Ex.P-8 and same were recovered at his instance from Vishwas Kadam vide Exs.P-9 & P-10. Currency notes and other clothes of Kumar Patel were seized vide Ex.P-11. Appellant KeshavRqmiU'aSi.salsolaken into custody, he made disclosure !: statementgt&Elgtlte SiMWiRi12||lid!ss|im@wsre recovered at his instance vid&,Exs.'f?-1;3 & P-14. Acquitted accusedJBeevan Ram also made AsgctisG|ysure statement vide Ex.P-15and articles wer'fe'sglzed at his instance XiyMde Exs.P-16 & P-iy^MptGircyclewas seized vide Extl3--22. Viscera of Vimla Bai was seizSdjviclei@iK|3-23.;Articles were seized from the spot vide Ex.P-24. SeizedarttclesiwereSseotfbrchemicalexamination. Statements ofthe witnesses weresreGSKIeclWicler Section 161 ofthe CrPC.

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After completion of inye^ig||tion harge sheet was filed before the Court of Judicial Magistrate piRsnSlass, Kurud, who committed the caseto the Court of Sessions, DhaiffSsff^^from^.^'ii^ere the Additional Sessions Judge, Dhamtari, received th&;Gas6ontF8nsferfortrial.

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In order to prove the guilt of the accused, the prosecution has examined as many as 39 witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question.

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lO.After providing opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting co-accused Jeevan Ram, convicted & sentenced the appellants as aforementioned.

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We have heard learned counsel for the parties, perused thejudgment and record ofthetrial Court.

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Learned counsel for the appellants vehemently argued that in the light of evidence of Bhukhanlal Kalar (PW-4), Dr. Vikas Kumar Dhruw (PW-39), Dr. R.H. Mishra (PW-37), Exs.P-42A, P-43A, P-36, autopsy reportEx.P-59 and evidence of other witnesses, they are not disputing the fact that these

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Cr.A.No.852/2008

appellants have not caused injury to-deceased Vimla Bai and injured Bhukhan, but as per case ofthe prosecution, they caused injuries to Vimla Bai on 20-11-2006 and she died on 27-12-2006 after one month and seven days. As per evidence of the prosecution, both the appellantswent to the house of the deceased, they were not having any arms with them, they have caused injury by their hands and towel, after caysing injury they committed robbery from the house of the injured, at that time, both the injured were alive and the appellants were having sufficient time to kill them, but they had not killed them. The appellants were not having any motive for commission of offence, but as per case of the prosecution, on account of motivation by the acquitted accused i.e. husbandof deceased Vimla Bai, the aBBellgn^5ihiagl|gon8.to.,the house ofthe deceased to teach her .aJesswFyaBg|idBlilfgi]ESfc:jreSNKiyiKiiG|ldlthey caused some injuries. J\ffiffiSaid°8icircumstancesand evidence"5acVuC®d,on behalf of the "Ijl'osecution clearly reveal that the act attributed td^l'iglipRellants does not i» travel beyond the sieoRefofSectien 304 Part-11 of the IP@Jin which they are "? incustodysince22^^0^.,%|^y-''

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13.0n the other hand,,Kgea(Red|iS{ate counsel opposed the appeal and submitted that the apppl|&nt| tfa'te pressed the neck of the deceased, she died after one month &^e!veii i|8ys, but she was not in a position to breath properly and she/wasisiffitventilatipn. This shows the motive of the appellants. They hswg!;:%|sc>|Ein'imitted robbery after committing house trespass and alsoatt8rnpted;<CKeommit the murder of Bhukhan. On the basis of evidence of the prosecution, the trial Court has rightly convicted and sentenced the appellants.

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In order to appreciate the arguments advanced on behalf of theparties, we have to examine the evidence adduced on behalf of the prosecution.

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15.1n the present case, death as a result of injuries found over neck of deceased Vimla Bai has not beensubstantially disputed on behalf of the appellants. On the other hand also, it is established by evidence of Bhagvatram Kalar (PW-1), Bhukhanlal Kalar (PW-4), TeekaramKalar (PW12), Rakesh Kumar Sinha (PW-14), Murli Sinha (PW-16), FIR Ex.P-7, morgue Ex.P-39, evidence of Dr. Vikas Kumar Dhruw (PW-39), Dr. R.H. Mishra (PW-37) and autopsy report Ex.P-59 that death of deceased Vimla

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.Bai was homicidal in nature.

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•16.Grievous injury caused to Bhukhanlal Kalar (PW-4) has also not been disputed on behalf of the appellants, same is also established by evidence

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Cr.A.No.852/2008

of Bhukhanlal Kalar (PW-4), Dr. R.M. Mishra (PW-37) and injury report EX.P-42A.

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< I-.

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17.As regardscomplicity of the appellants in the crime in question,the appellants have admitted the incident, even otherwise, same is established by evidence of Bhukhanlal Kalar (PW-4), injured witness. As per his evidence, the appellants came to his house, they caused grievous injury to him and also caused grievous injury to Vimla Bai, Vimla Bai died as a such result of suchinjuries and they had also committed robbery from his house after committing house trespass. These evidence are sufficient to establish the fact that the appellants have caused homicidal death ofdeceased Vimla Bai and they also committed attempt to commit murder of Bhukhan after committinghciu^g'lresgiallialfl allslan'igiitted robbery in sharing common intentioriifeT|ejSf@re;"fc^ "cohvictir^ tili|:gjSSint^,under Sections 307, read Witi«!§e<stion34 and 397 read with Section 34 offithelltC, the trial Court has l3<ls.Bpt committed any illegality^but by convicting them ui||HerSection 450 read Is with Section 34 oftltl|^i1pC; (Me^trial Court has commjttetfian illegality. Cpnvictionof the appgllSntsweulclfflave been under Section450 of thelPC, not with the aid of SectiK»ft3.4io«l!ieIPC.

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As per undisputed factSiQflfttieucase, with a view to teach a lesson, both the appellants went to tlie||:; E)i.|se^!Crf deceased Vimla Bai, they assaulted Bhukhanlal Kalar (F'W-4^Eincl d^ceased Vimla Bai by pressing their necks andthey committed robit^iyiEafl^iriisbmmitting house trespass. At the time of commission of robbery.'Bcitli tli6i'injured were alive, theappellants werenot holding any weapon, they have not caused injury by any stickor blunt object, and even after having complete opportunity to kill the deceased, they have not killed the deceased on the spot and the deceased died after one month seven days. This shows that the appellants have caused homicidal death of the deceased, but they have not caused injuries with intent to cause her death. However, at the time of causing injury over neck, atleast, the appellants were having knowtedge that by their act the deceased may die. Consequently, the act attributed to the appellants squarely falls within the ambit of Section 304 Part-11 of the IPC.

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19.The appeal is partly allowed. Conviction of the appellants under Section 307 read with Section 34 & 397 read with Section 34 of the IPC are hereby maintained. Theirconviction under Section 450 read with Section 34 ofthe IPC is altered to Section 450 of the IPC,however, their sentences shall

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" remain unaltered. Similarly, conviction ofthe appellants under Section 302

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Cr.A.No.852/2008

read with Section 34 ofthe IPCis altered to Srstion 304 Part-11 read with Section 34 of the IPC. Sentence imposed upon the appellants under Section 397 read with Section 34 of the IPC is hereby affirmed. The appellants are hereby senteneed to Rl for the period already undergone by them under Sections 304 Part-11 read with Section 34 and 307 read with Section34ofthelPC.

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20.The appellants are in custody since 22-11-2006 and have completed more

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than 8 years of jail sentence. They be set at liberty at once. They be

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released forthwith, if not required in any other case. __—--

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Soma

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:':^Sd/- ':: TJ'.SIianna Judge

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Sd/-
I.S.Uboweja
Judge

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'K3 va

Kumar Patel and Anr. v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kumar Patel and Anr. v. State of Chhattisgarh

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

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