Partly allowed

Devsai v. State Of Chhattisgarh

Chhattisgarh HC4 Nov 2022CRA/271/2013

Case brief

AI extract

What is this about?

In this criminal appeal, the Division Bench of the High Court of Chhattisgarh examined whether the appellant caused the death of the deceased under Section 302 IPC. The court held that since the deceased died of septicemic shock due to infection in surgical stitches rather than the initial injury, the prosecution failed to prove homicidal death. The conviction under Section 302 and 450 was set asi

What did the court decide?

Conviction and sentence under Sections 302 and 450 IPC set aside; appellant convicted under Section 307 IPC with sentence limited to period already undergone.

Devsai Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 271 of 2013

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Devsai S/o Somaru Ram Nagwanshi, Aged About 30 Years, Occupation Agriculturist, R/o Rai Para, Kurrog, Police Station Bagicha, Distt. Jashpur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Police Station Bagicha, Distt. Jashpur Chhattisgarh

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---- Respondent

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For Appellant Mr. Ratnesh Kumar Agrawal, Advocate For Respondent/State Mr. Ashish Tiwari, Government Advocate and Mr. Afroz Khan, Panel Lawyer

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DIVISION BENCH

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ.

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Judgment on Board 04/11/2022

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Sanjay K. Agrawal, J.

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The appellant has preferred this criminal appeal calling in question the impugned judgment of conviction and order of sentence dated 24.12.2012 delivered by the Additional Sessions Judge, Jashpur, District Jashpur (CG) in ST No.62/2012, by which, the appellant has been convicted and sentenced as under :

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Conviction	Sentence
Section 302 of the IPC	Life imprisonment with fine of Rs.500/-, in default of payment of fine, one month additional RI
Section 450 of the IPC	RI for 5 years and fine of Rs.500/-, in default of payment of fine, one month additional RI.

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Case of the prosecution, in brief, is that on 5.3.2012, at about 3-4 p.m., deceased Dashairam, after having food, was sitting in the courtyard and washing his hands. At that juncture, Devsai, son of uncle of the decreased, trespassed the house of the deceased and caused stab injuries to him with a Churri (knife) on his neck, head and in his stomach, which was witnessed by Dasharth (PW-2), Sukhwanti (PW-3) and Ku. Ratmuni (PW-9). Thereafter, the deceased was taken to the Mission Hospital, Ambikapur, where Dr. Rachana Aathar (PW-5) operated upon the injury and stitched it. Meanwhile, on the information received from the hospital, Dehati Nalisi -Ex.P/2 was registered and thereafter, on the basis of Dehati Nalisi , FIR-Ex.-P/16 & 17 was lodged and an offence under Sections 450 & 307 of the IPC was registered and the concerned Magistrate was informed. During the course of investigation, blood stained shawl was seized vide Ex.-P/11 and on the memorandum statement of the appellant -Ex.P/7, a blood stained knife was seized vide Ex.-P/8. The query report was obtained vide Ex.-P/3 and the seized articles along with other articles were sent for forensic examination. In the FSL

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report vide Ex.-P/23, on Articles A (Mitti), C (Shawl) & D (knife), blood was found, but the blood group could not be ascertained. Meanwhile, on 15.3.2012, deceased Dashairam was discharged from the hospital, which has been duly proved, but suddenly thereafter, on 21.3.2012, the deceased died. In pursuance thereof, an offence under Section 302 of the IPC was registered against him.

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After due investigation, the appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions from where the Additional Sessions Judge, Jashpur, District Jashpur (CG) received the case on transfer for hearing and disposal in accordance with law.

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The accused/appellant abjured the guilt and entered into witness box. The appellant in his defence brought on record Ex.D/1 & Ex.-D/2. However, in order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 23 documents.

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The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Sections 302 & 450 of the IPC as mentioned above against which the instant appeal has been preferred.

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Mr. Ratnesh Kumar Agrawal, learned counsel for the appellant would submit that the deceased was discharged from

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the hospital vide Ex.-P/2 on 15.3.2012 after surgery and full recovery, which is apparent from the statement of Dr. Rachna Aathar (PW-5) The Dehati Nalisi was made by the deceased vide Ex.P/2, which was proved by Dasharth (PW-2), but thereafter he died on 21.3.2012. He further submits that the death appears to be on account of Septicaemia as infection had developed in the injury sustained in his stomach and it could not be proved that the subsequent death of the deceased was on account of the injury inflicted by the appellant herein. Therefore, it could not be established that the death of the deceased was homicidal in nature, which was required to be proved by the prosecution in order to convict the appellant under Section 302 of the IPC in light of the decisions of the Supreme Court rendered in the matters of Madho Singh Vs. State of Rajasthan1, and Chandrapal Vs. State of Chhattisgarh2 . He also submits that since the prosecution could not prove the death to be homicidal in nature as he died on account of the Septicaemia, it could not be established that the death of the deceased was homicidal in nature. At the best, the appellant could have been convicted for the offence under Section 307 of the IPC, for which, he was earlier charged while lodging the FIR-Ex.-P/16 & 17. In that view of the matter, the death of the deceased was not homicidal in nature and his conviction under Section 302 of the IPC deserves to be set-aside. He would submit that since the appellant is in jail

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1 2015 3 SCC 588

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2022 SCC Online SC 705

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since 7.3.2012, he be sentenced to the period already undergone.

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Per contra, Mr. Ashish Tiwari, learned Government Advocate for the State would submit that since grievous injury was caused by the appellant and on account of which, he had also undergone surgery though he may have been discharged from the hospital, but it is only on account of the injury inflicted by the appellant, the deceased has subsequently died after discharge from the hospital Therefore, the trial Court has rightly convicted the appellant for the offence under Section 302 of the IPC.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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In order to convict an accused under Section 302 of the IPC, the prosecution is required to prove the death to be homicidal in nature and if the evidence on record brought out by the prosecution falls short of proof of homicidal death, the conviction under Section 302 of the IPC cannot be maintained. ( See : Madho Singh (supra) & Chandrapal (supra) ).

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In the matter of Rupinder Singh Sandhu Vs. State of Punjab and others.3 , the Supreme Court has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death.

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(2018) 16 SCC 475

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In the matter of M.B. Suresh Vs. State of Karnataka4 , the Supreme Court has held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. The Supreme Court further held that though the deceased died of shock but there is no evidence to show that the shock was on account of the injuries inflicted by the accused. Relying on the judgment of of the Supreme Court in the matter of Bhupendra Singh Vs. State of U.P.⁵ , their Lordships altered the conviction of the appellant from Section 302 of IPC to Section 307 of IPC.

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In Bhupendra Singh (supra) , the following was held vide para 9 & 10:

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“ 9 .………The evidence only established that the first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot caused the death. Even in the case of shooting by a rifle unless the evidence shows the particular injury caused by the same and that injury is sufÏcient to cause death, the offence under Section 302 IPC could not be said to have been made out. In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under Section 302 IPC of causing the death of Gajendra Singh. However, we are of the view that while the first appellant shot at the

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(2014) 4 SCC 31,

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5.(1991) 2 SCC 750

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deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.

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10. All the witnesses also say that the shot by A 1 brought down the deceased to the ground. There could, therefore, be no doubt that the shot had caused some hurt or injury though we could not predicate what was the nature of the injury and whether that injury could have caused the death. In the circumstances we consider that the offence would come under the second limb or second part of Section 307, IPC. Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment. Accordingly we alter the conviction under Section 302, IPC as one under Section 307 IPC and sentence him to a term of 10 years rigorous imprisonment.” Accordingly, we alter the conviction of the appellant M.B. Suresh from Section 302 to Section 307 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for ten years.

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Reverting back to the facts of the present case, it is an admitted position on record and it is sufÏciently clear that the appellant caused the stab injuries to the deceased which has been witnessed by the three eye witnesses i.e. PW-2 Dasharth, PW-3 Sukhwanti and PW-9 Ku. Ratmani. The deceased suffered number of injuries on the body and he was taken to the Mission Hospital, Ambikapur, where he was treated by Dr. Rachna Aathar ( PW-5) and she found 7 injuries on the body of the deceased. The

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deceased was operated upon, finding the injuries to be grievous in nature. Thereafter, he was discharged on 15.3.2012 vide -Ex.P/2, which has been proved by the said Doctor. In para 3 of her evidence, Dr. Rachna Aathar ( PW-5), has clearly stated that the operation was undertaken as there was a hole in the large intestine of the deceased ad measuring 5cm x 5cm, which was stitched. The omentam membrane in the stomach was also subjected to stitching. In the cross-examination of this witness, she has clearly stated that on 15.3.2012, the deceased has been discharged after full recovery. She further stated that there is a possibility of infection on the stitched wounds, if medical hygiene is not followed and maintained properly. However, subsequently, the deceased developed infection on the wounds and pus was formed. Consequently, on account of septicemic shock, the deceased died on 21.3.2012.

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The postmortem of the deceased was conducted by Dr. C.D. Bakhala (PW-1), who prepared the Postmortem Report vide Ex.-P/1. He opined that the cause of death was septicemic shock due to pus collected on the old operated injury. Dr. C.D. Bakhala has been examined as PW-1. On postmortem examination, he found the following injuries :

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^^01@--------ckg~; ijh{k.k%& 'kjhj e`r ,oa B.Mk vkSa/kk iM+k gqvk Fkk] flj ck;h vkSj yq<+dk gqvk FkkA vk[ksa can] iqrfy;ka Qsyh gqbZ FkhA ey ckgj fudyk gqvk Fkk] isV ds ck;sa vksj gkbiks dksUMhj;e Hkkx ij eokn jhl dj Qsyk gqvk FkkA iwjs 'kjhj esa vdM+u ekStwn FkkA

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pksaVsa%& ¿1À ,d bulkbZTM Å.M ¿dVk gqvk ?kkoÀ ck;sa gkbZiks dksukfMfj;e ij mij ls uhps frjNk fy;s gq;s ckgj ls vanj dh vksj Fkk] ftldk vkdkj lk<+s 5 x Ms<+ x lk<+s 4 ls-eh- Fkk tks ukfHk ds ck;ha vksj FkkA ftlesa VwVs gq;s pkj Vkds ds /kkxs yxs gq;s FksA pksaV dks nckus ij eokn ckgj fjl jgk FkkA bl pksaV ds mij 6 Vkads ds /kkxs mij dh vksj ekStwn yxs gq;s Fks rFkk pksaV ls uhps dh vksj ,d Vkads ds /kkxs yxs gq;s FksA

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pksaV dz- ¿2À ,d iqjkuk ?kko ck;sa xys ds frdksus Hkkx ij mij ls uhps frjNk fy;s gq;s Fkk] ftlesa nks Vkads ds /kkxs yxs gq;s FksA

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02@ vkarfjd ijh{k.k%& o{k ds lHkh vax isy Fks] g`n; dk cka;k Hkkx [kkyh Fkk rFkk nk;sa Hkkx esa dqN xk<+k jDr FkkA

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mnj%& mnj ds lHkh vax isy Fks] vk/kk yhVj eokn mnj ds vanj FkkA isV [kkyh Fkk] NksVh vkar esa ipk gqvk [kkn; inkFkZ] cM+h vkar esa ey;qDr inkFkZ FkkA 03@ iqjkuk il ;qDr ?kko e`R;q iwoZ ds fdlh Hkkjh /kkjnkj oLrq ls 15 fnu ls iwoZ igqapk;k tkuk izrhr gks jgk FkkA

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vfHker%& esjh jk; esa erd nlbZ jke dk eR;q dk dkj.k isV esa igqapk;s x;s il;qDr ?kko ds dkj.k lsIVhlsfed 'kkd dk gksuk izrhr gks jgk Fkk tks fd gR;kRed izdfr dh Fkh tks fd eR;q dk le; ijh{k.k ds 24 ?kaVs vanj dk FkkA esjk ijh{k.k izfrosnu iz-ih-1 gS] ftlds , ls , Hkkxksa ij esjs gLrk{kj gSA**

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A careful perusal of the evidence of Dr. C.D. Bakhala (PW-1) would show that on examination of the deceased, he found that in the stomach of the deceased, hypochondriam region was filled with pus. Further, pursuant to the operation, stitches done on the wound had opened and the pus was oozing from the stitches. He found half litre of pus in the stomach. Further, the Doctor stated that the pus present in his stomach was on account of Septicaemia. However, the Doctor further stated in para 4 of his evidence that the stitches were present on the body of the deceased pursuant to his operation. He stated that if infection develops on the stitches post operation, then, pus formation

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occurs.

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It is an admitted position on record that after due treatment and operation, the deceased was discharged from the hospital on 15.3.2012, but thereafter, the prosecution has failed to bring on record that the deceased has suffered Septicaemia as infection had developed on the stitches on account of injury sustained by the deceased in his stomach after the surgery. No legal evidence has been brought on record as to why the stitches suffered infection. The prosecution has not led any evidence to show that the deceased had died on account of the injury inflicted by the appellant since he had recovered fully after the incident and discharged from hospital, as proved by Dr. Rachana Aathar (PW-5) and further, the prosecution failed to prove that the injury originally inflicted by the appellant was sufÏcient to cause death.

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If deceased Dashairam was not given proper medical care subsequent to his discharge from the hospital and he developed Septicaemia on account of the infection developed on the stitches of his injury post operation and as a result, pus was also formed, the appellant cannot be held responsible for the same. The deceased was required to take proper medical precaution as a safety measure to keep the wound clean and healthy but he failed to do so. Had the stitches on the wounds been kept clean, the deceased would not have developed Septicaemia. Thus,

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prosecution could not prove that the deceased died on account of the injury inflicted by the appellant and the injury caused to the deceased by the appellant was sufÏcient to cause death.

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In that view of the matter, conviction and sentence imposed on the appellant under Sections 302 & 450 of the IPC are set aside. Instead, the appellant is convicted under Section 307 of the IPC. The appellant is in jail since 7.3.2012. Therefore, the ends of justice would be served if the appellant is sentenced to the period already undergone by him. Ordered accordingly. He be released forthwith if not required to be detained under any other process of law. The fine amount imposed on the appellant by the trial Court shall remain intact.

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19. The appeal is allowed in part.

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Sd/- Sd/-

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(Sanjay K. Agrawal) ( Deepak Kumar Tiwari) Judge Judge

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Shyna

Devsai v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Devsai v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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