Partly allowed

Kalindri Bai v. State of Chhattisgarh

Chhattisgarh HC3 Jul 2020CRA/442/2005

Case brief

AI extract

What is this about?

The High Court allowed appeals partly, confirming convictions of husband and wife for voluntary causing of grievous hurt under Section 325 IPC. The Court enhanced the fine to Rs. 7,000 each and directed compensation to the deceased's wife, directing appellants remain on bail for six months.

What did the court decide?

Appeals allowed in part; conviction confirmed; fine enhanced to Rs. 7,000 each; appellants to remain on bail for six months; compensation of Rs. 10,000 directed to deceased's wife.

Kalindri Bai Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2020)

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1 Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 391 of 2005

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Satya Narayan S/o Mohit Ram Sahu, Aged about 37 years, OccupationLabour, R/o Village Sonardeori, P.S. - Palari, District Raipur (C.G.) (Accused No.1)

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---- Appellant

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Versus

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State of Chhattisgarh Through : P.S. - Palari, District Raipur (C.G.) ---- Respondent/State

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And

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Criminal Appeal No. 442 of 2005

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Kalindri Bai W/o Satya Narayan Sahu, Aged about 33 years, R/o Village Sonardeori, P.S. - Palari, District Raipur (C.G.) (Accused No.2)

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---- Appellant

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Versus

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State of Chhattisgarh Through : P.S. - Palari, District Raipur (C.G.) ---- Respondent/State

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For Appellants : Shri Deepak Kumar Jain, Advocate For Respondent/State : Shri Vimlesh Bajpai, Government Advocate

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Hon’ble Shri Justice Gautam Chourdiya, J

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Judgment

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03.07.2020

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1. These appeals are heard through Video Conferencing.

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2. As both appeals (Cr.A. No. 391 of 2005 and Cr.A. No. 442 of 2005) arise out of the common judgment of conviction and order of sentence dated 23.04.2005 passed by the First Additional Sessions Judge, Baloudabazar, District Raipur (C.G.) in Sessions Trial No. 366/2004, they are being disposed of by this common judgment. By the impugned judgment, both the appellants stand convicted and sentenced as under:-

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	Conviction	Sentence
Under Indian	Section 325 of Penal Code (for	R.I. for two years each and pay a fine of Rs.500/- each, in default of
short 'I	PC')	payment to further undergo R.I. for six months each

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Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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3. Facts of the case in brief are that both accused/appellants (A-1 & A-2) are husband and wife. The appellant (A-2) was working as labour work in the filed of Gopal Kannauje. On 27.07.2004 at about 20:30 hours on being called by appellants, deceased Gopal Kannauje went to the house of appellants for settlement of wages. The appellants told Gopal Kannauje as to why he came in the night and abused him in filthy language and appellant Satya Narayan (A-1) beat him by means of sabbal and appellant (A-2 – wife of A-1) beat him by lathi due to which Gopal Kannauje sustained injuries on his head, hand, legs & shoulder. The appellants also threatening the deceased of his life. The incident was witnessed by PW-5 Bhikuram, PW-3 Bihari Kannauje and Manbodh etc. Thereafter the family members of Gopal Kannauje took him to police station Palari and from where on the instruction of police, they went to Community Health Center, Palari where Gopal Kannauje lodged F.I.R. Ex.- P/7) against the appellants. One club ( lathi ) was sized at the instance of appellant (A-2) vide Ex.-P/9 and one sabbal was seized at the instance of appellant Satya Narayan (A-1) vide Ex.-P/10 and sent for examination to PHC, Palari vide Ex.-P/11. Gopal Kannauje was medically examined by PW-14 Dr. S.R. Nirala who gave his MLC report vide Ex.-P/8A and found following injuries of the body of injured Gopal Kannauje:

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Lacerated wound with bleeding in size of 2 inch x 1/3 inch x 1/3 inch on above side of head;

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Contusion and swelling in size of 3 inch x 1 inch on the right shoulder;

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Lacerated wound with bleeding in size of ½ cm x 1/3 cm x 1/3 cm below the knee middle side in front of left leg;

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Folded swelling in the middle side on the right leg;

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Swelling and tenderness in size of 2 ½ inch x 1 inch in front of middle side on right leg;

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Contusion and swelling in size of 2 ½ inch x 1 inch inside on right elbow;

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Contusion and tenderness in size of 1 ½ inch x 1 inch

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Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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on right hand of wrist;

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Contusion in size of 6 inch x 1 inch on right side of back;

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Abrasion with swelling ½ cm x ½ cm on the left side of forehead;

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Lacerated wound in size of ½ cm x ½ cm above the shoulder towards middle side on right hand;

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Doctor advised for X-Ray and referred the victim to Raipur Hospital where

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victim Gopal Kannauje died on 22.08.2004 during treatment. Doctor (PW-14) also examined sabbal & club ( lathi ) vide Ex.-P/11A and gave opinion that it is possible that the injuries were caused by sabbal & club ( lathi ).

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4. On 23.08.2004 information of death of Gopal Kannauje was received by PW13 K.R. Patel, Assistant Sub-Inspector who reached Medical College Hospital Raipur, gave notice (Ex.-P/1) to the Panchas and prepared inquest (Ex.-P/2) on the body of deceased Gopal Kannauje.. The dead body of deceased Gopal Kannuaje was sent for its postmortem examination to District Medical Officer, Dr. Ambedkar Hospital, Raipur vide Ex.-P/12A, where the postmortem examination was conducted by PW-10 Dr. Rajkumar Singh who prepared his reports Ex.-P/12 & Ex.-P/13A. As per postmortem reports (Ex.-P/12 & Ex.-P/13)), Doctor found following injuries on the body of the deceased:

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Healing injury just above right elbow 2.5 cm x 2 cm. Dislocation as present on right elbow;

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Stitched wound irregular on left lower by vertical middle part of 3 cm x 1 cm. Compound fracture of tibia bone of 10 cm above ankle;

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Fracture of right radius bone in lower 1/3rd part;

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Fracture of right humerous bone just below the shoulder; &

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Stitched wound on the middle scalp of 5 cm x 1 cm.

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Doctor (PW-10) opined that cause of death was due to cardiorespiratory failure as a result of injuries to his body as their complications and duration

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4 Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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of death was within 12-36 hours prior to postmortem examination.

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5. During investigation, Merg intimation was lodged on 27.08.2004 vide Ex.-P/5 and spot map was prepared by Patwari PW-7 Budhram Verma on 13.09.2004 vide Ex.-P/4. Both accused/appellants (A-1 & A-2) were arrested on 31.08.2004 vide arrest memos Ex.-P/16 & Ex.-P/17.

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6. After completion of investigation, charge-sheet was filed against the accused/appellants (A-1 & A-2) by the police for the offence under Sections 294, 323, 506 Part-II & 302 read with Section 34 of IPC. While framing the charge, the First Additional Sessions Judge, Baloudabazar, District Raipur (C.G.) framed the charge against both the accused/appellants under Sections 294, 506 Part-II & 302 read with Section 34 of IPC.

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7. So as to hold the accused/appellants (A-1 & A-2) guilty, the prosecution examined 16 witnesses namely Chhatram (PW-1), Motim Bai (PW-2), Bihari Kannauje (PW-3), Yashwant Kumar Bhardwaj (PW-4), Bhikuram (PW-5), Khorbahra (PW-6), Budhram Verma (PW-7), Hiralal Tandon (PW-8), T.R. Dewangan (PW-9), Dr. Rajkumar Singh (PW-10), Bahurram (PW-11), S.R. Lahre (PW-12), K.R. Patel (PW-13), Dr. S.R. Nirala (PW-14), B.R. Mandavi (PW-15) and Dr. S. Phooljhale (PW-16) in support of its case. Statements of both the accused/Appellants were also 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 and stated that the deceased committed rape with the appellant's (A-1's) wife (A-2). No defence witness has been examined by the accused/appellants in support of their defence.

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8. After appreciation of the evidence available on record, the learned First Additional Sessions Judge, Baloudabazar, District Raipur (C.G.) by the impugned judgment, while acquitting the accused/appellants (A-1 & A-2) of the charges under Sections 294, 506 Part-II & 302 read with Section 34 of IPC, convicted and sentenced both the accused/appellants as mentioned in

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5 Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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para- 2 of this judgment, hence these appeals.

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9. Learned counsel for the appellants submits that due to previous enmity between the deceased and the appellants, the deceased committed forcible sexual intercourse with wife (A-2) of appellant Satya Narayan (A-1) and the F.I.R. (Ex.-D/2) was lodged against deceased Gopal Kannauje at police station Palari under Crime No. 190/2004, therefore, due this reason both the appellants have been falsely implicated in this case. He further submits that there are contradictions and omissions in the statements of the witnesses. He also submits that offence under Section 302 of IPC was registered against the appellants, but the death of deceased was due to brain fever. He submits that the sexual assault was made by deceased Gopal Kannauje upon the wife (A-2) of appellant Satya Narayan (A-1) and report of which was also lodged against the deceased, but charge sheet could not be filed against him. The offence against both the appellants has not been made out because it is not proved as to who assaulted the deceased, nor the eyewitnesses supported the prosecution case, therefore, they may be acquitted from the above charge.

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10. Lastly, learned counsel for the appellants submits that if this Court finally comes to conclusion that the appellants (A-1 & A-2) have rightly been convicted by the trial Court for the offence under Section 325 of IPC, considering the fact that the appellants (A-1 & A-2) are the first offenders aged about 37 years & 33 years at the time of incident, the incident took place around 16 years ago, they may be given the benefit of Probation of Offender Act and sentenced to the period already undergone by them. In support of his contention reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of George Pon Paul Vs. Kanagalet and Others, (2009) 13 SCC 478 .

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11. On the other hand, learned counsel for the State supporting the impugned judgment submits that the trial Court has rightly convicted and sentenced

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6 Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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the appellants for the above offence which needs no interference by this Court.

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12. Heard learned counsel for the parties and perused the evidence available on record.

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13. It is not disputed by learned State Counsel that the appellants were acquitted from the charges under Sections 294, 506 Part-II, 302 read with Section 34 of IPC and no appeal has been filed by the State against their acquittal from the said charges. Therefore, this Court only considers the conviction of the appellants (A-1 & A-2) under Section 325 of IPC.

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14. PW-1 Chhatram, the son of deceased- Gopal Kannauje, has stated in his deposition that the incident was informed by his uncle namely Bhikhari that the appellants have assaulted Gopal (deceased) by sabbal and lathi and he was lying in the field of Fehrah. When PW-1 reached the place of occurrence, at that time his father was alive and had sustained injuries on his hands, leg, head, waist and blood was oozing from the injuries. PW-1 has further stated that his father told him that when in the evening his father went to the house of appellants for settlement of wages, then both the appellants assaulted Gopal Kannauje and while they were assaulting his father, they were shouting ' chor-chor '. PW-1 proved notice (Ex.-P/1), inquest (Ex.-P/2) and he received the dead body of deceased on supurdnama vide Ex.-P/3.

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15. F.I.R. (Ex.-P/7) was lodged by Gopal Kannauje, that fact is proved by T.R. Dewangan, Assistant Sub-Inspector (PW-9) and while lodging the F.I.R. Gopal Kannauje mentioned this fact that when he reached the house of the appellants, appellant Satya Narayan (A-1) assaulted him by sabbal and his wife (A-2) assaulted him by club ( lathi ) and he sustained injuries.

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16. PW-2 Motim Bai, wife of Gopal Kannauje (deceased), has stated in her deposition in para-3 that the F.I.R. was lodged by her husband in Palari police station and that at the time of lodging the F.I.R., he stated that

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7 Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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appellant Satya Narayan (A-1) assaulted him by sabbal and his wifeappellant (A-2) assaulted him by club ( lathi ). Thereafter, her husband was shifted for further treatment to Raipur Hospital.

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17. PW-3 Bihari Kannauje, brother of the deceased, has stated that on the date of incident, he was in his house and he heard commotion from the house of appellant Satya Narayan and he reached there, saw that the appellants were assaulting his brother Gopal Kannauje by sabbal & lathi .

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18. PW-4 Yashwant Kumar Bhardwaj and PW-5 Bhikuram also proved this fact that on the date of incident, they have seen the appellants (A-1 & A-2) assaulting Gopal Kannauje by sabbal & lathi .

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19. The injuries found on the body of Gopal Kannauje were proved by Dr. S.R. Nirala (PW-14). Gopal Kannauje was admitted in Raipur Hospital for further treatment from 28.07.2004 to 22.08.2004 and he died on 22.08.2004 at about 02:40 pm. during his treatment, that fact is proved by Dr. S. Phooljhale (PW-16) vide Ex.-P/22C. The injuries found on body of Gopal Kannauje (deceased) were grievous in nature and proved. It was also mentioned in Ex.-P/22C that fractures were also found in the body of injured Gopal Kannauje (deceased).

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20. It is true that as per Ex.-D/2 F.I.R was lodged by wife (A-2) of appellant Satya Narayan (A-1) against Gopal Kannauje (deceased) in police station Palari on 28.07.2004 at about 12:30 pm with the allegation that Gopal Kannauje entered her house and committed sexual assault upon her, but no any charge sheet was filed, nor investigation is completed. The incident happened on 27.07.2004 and after the incident, appellant (A-2) lodged the F.I.R. against Gopal Kannauje (deceased) on 28.07.2004 under Sections 376 & 450 of IPC, but no any eyewitness supports the fact that the rape was committed by Gopal Kannauje against the appellant (A-2). During treatment, Gopal Kannauje died on 22.08.2004 due to probable brain fever as per evidence by Dr. Rajkumar Singh (PW-10), and Dr. S. Phooljhale (Pw-16)

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Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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admitted in his evidence in paras 8 & 9 that on 17.08.2004, the deceased had a high fever and his blood was tested and he found that Gopal Kannauje had a brain fever. PW-16 also admitted that the deceased has not died on account of injuries sustained by him, but it is probable that he died on account of brain fever. Therefore, looking to the evidence of Dr. S. Phooljhale (PW-16) which shows that the injuries found on the body of deceased were grievous in nature; MLC report (Ex.-P/8A) of Dr. S.R. Nirala (PW-14); prompt F.I.R. by Gopal Kannauje himself narrating the incident and naming the appellants and the eye witnesses account, it stands proved beyond all reasonable doubt that the appellants assaulted the deceased by sabbal & lathi . Thus, the trial Court has rightly convicted the appellants under Section 325 of IPC.

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21. As regard the sentence, considering the facts and circumstances of the case, the fact that the appellants (A-1 & A-2) were the first offenders of 37 years and 33 years of age on the date of incident, they have no criminal antecedents, they remained in jail for 238 days (A-1) & 66 days (A-2) and are on bail since 03.05.2005 & 13.05.2005, the incident took place around 16 years back, keeping in view of the judgment of the Hon'ble Supreme Court in the matter of George Pon Paul (supra) wherein considering the fact that the amount has been deposited and paid to the victim as also the long passage of time, the accused was sentenced to the period already undergone, this Court is of the opinion that in the present case also no useful purpose would be served in again sending the appellants (A-1 & A-2) back to jail at this stage and the ends of justice would be served if they are sentenced to the period already undergone by them subject to enhancement of the amount of fine from Rs.500/- to Rs.7,000/- each with default stipulation under Section 325 of IPC.

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22. In the result, the appeals are allowed in part. While confirming the conviction of the appellants (A-1 & A-2) awarded by the trial Court under Section 325 of

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Cr.A. No. 391 of 2005 & Cr.A. No. 442 of 2005

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IPC each, they are sentenced to the period already undergone by them. However, the fine amount of Rs.500/- imposed by the trial Court for the offence under Section 325 of IPC is enhanced to Rs.7,000/- each. If the fine amount imposed upon the appellants by the trial Court has already been deposited, it shall be adjusted accordingly. Let the enhanced sum be deposited in the trial Court failing which each of the appellants shall be liable to remain in jail for a period of six months. Out of total fine amount of Rs.14,000/-, Rs.10,000/- shall be payable to the wife of the deceased namely Motim Bai (PW-2) as compensation under Section 357 Cr.P.C. by the trial Court after due verification. The appellants are reported to be on bail, therefore, their bail bonds shall remain in force of a period of six months from today in view of the provisions of Section 437-A of Cr.P.C.

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Sd/-

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(Gautam Chourdiya) Judge

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vatti

Kalindri Bai v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kalindri Bai v. State of Chhattisgarh

Case brief

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