Partly allowed

Bisheshar Kamar v. State of Chhattisgarh

Chhattisgarh HC14 Jul 2024CRA/1102/2018

Case brief

AI extract

What is this about?

Appeal against life sentence for murdering the appellant's wife by wooden stick. The High Court affirmed conviction for causing death but, as the doctor did not state injuries sufficient to cause death in the ordinary course of nature, altered the conviction from Section 302 IPC to Section 304 Part-II IPC and sentenced him to ten years' rigorous imprisonment.

What did the court decide?

Conviction altered from Section 302 IPC to Section 304 Part-II IPC; sentenced to 10 years' RI; trial court's fine maintained; life imprisonment set aside.

Bisheshar Kamar Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 1102 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1102 of 2018

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(Arising out of judgment dated 09.05.2018 passed in Sessions Trial No.63/2017 by the Sessions Judge, Dhamtari, C.G.)

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Bisheshar Kamar S/o Sarju Ram Kamar, aged about 30 years, R/o Village Geetkarmuda, Police Station Nagri, District Dhamtari, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through Aarakshi Kendra Nagri, District Dhamtari, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Barun Kumar Chakrabarty, Advocate / Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Sharad Mishra, Panel Lawyer.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(15.07.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 09.05.2018 passed by the Sessions Judge, Dhamtari, Chhattisgarh in Sessions Trial No. 63/2017 by which

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CRA No. 1102 of 2018

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appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of ₹ 1,00/-; in default of payment of fine additional rigorous imprisonment for 1 month.

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Case of the prosecution in, nutshell, is that on 03.09.2017 at about 8:00 pm at village Geetkarmuda, Police Station Nagri, District Dhamtari, Chhattisgarh, the appellant assaulted his wife Shivbati (now deceased) by wooden stick by which she suffered grievous injuries and died. The matter was reported to the police by Sonu Ram Kamar (PW-2), elder brother of the appellant, pursuant to which merg intimation & FIR were registered vide Exs.P/2 & P/3, respectively. Nazari naksha was prepared vide Ex.P/12. Inquest proceedings (Ex.P/7) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/15), proved by Dr. A.K. Gaur (PW-6), cause of death was excessive bleeding due to hard and blunt object and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/8), wooden stick has been seized vide Ex.P/9.

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After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the

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CRA No. 1102 of 2018

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Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 7 witnesses and exhibited 25 documents and defence in support of its case has neither examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Barun Kumar Chakrabarty, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that the deceased died on account of rupture of lungs and Dr. A.K. Gaur (PW-7) who conducted the postmortem, has nowhere

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CRA No. 1102 of 2018

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stated that the said injuries are sufficient to cause death. He further submits that taking the case of the prosecution as it is, at best, the conviction for offence under Section 304 Part II would be made out and the appellant is in jail since 06.09.2017, almost 7 years have been completed, and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC. He relies upon the decision rendered by their Lordships of the Supreme Court in the matter of Nankaunoo v. State of Uttar Pradesh1 to bolster his submission. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Sharad Mishra, learned State counsel, supports the impugned judgment and submits that the injuries caused by the appellant over the body of the deceased in ordinary course of nature are sufficient to cause death of the deceased. He further submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the

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1 (2016) 3 SCC 317

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conviction of the appellant can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed.

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

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/15) proved by Dr. A.K. Gaur (PW-7), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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Considering the statement of eye witness Devidas Kamar (PW-1), son of the appellant and the deceased, who has clearly implicated the appellant in crime in question by stating that the appellant had assaulted the deceased by wooden stick, due to which, his mother (deceased) suffered grievous injuries and

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died. Further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/8), weapon of offence i.e. wooden stick was seized vide Ex.P/9, the trial Court has rightly held that it is the appellant who caused the death of the deceased, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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It is the contention on behalf of the appellant that the injuries caused by the appellant is not sufficient to cause her death, therefore, the case of the appellant would not fall under Section 300 Thirdly of the IPC and it would fall under Section 304 Part-II of the IPC.

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Now, the question is whether the appellant’s case deserves to be converted under Section 304 Part-II of I.P.C. as contended by the learned counsel for the appellant ?

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A careful perusal of the statement of the Dr. A.K. Gaur (PW-7) who has proved the postmortem report (Ex.P/15) would show that most of the injuries suffered by the deceased were abrasions, lacerated and contusion wounds, but Dr. A.K. Gaur (PW-7) has nowhere stated that the said injuries were sufficient to cause death in the ordinary course of nature in order to attract clause Thirdly of Section 300 of I.P.C.

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CRA No. 1102 of 2018

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Their Lordships of the Supreme Court in the matter of

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Nankaunoo (supra) ingredients of Section 300 Thirdly have been laid down by their Lordships of the Supreme Court and

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followed in Kariman v. State of Chhattisgarh2 in paragraphs

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12 & 13 as under:-

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“12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.

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Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1½” x 1½” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause the death. We find substance in the contention of the learned counsel for the appellant the injury was on the inner part of left thigh, which is the

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2 2024 SCC Online 607

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CRA No. 1102 of 2018

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non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part I IPC.”

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Returning to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgment, it is quite vivid from the statement of Dr. A.K. Gaur (PW-7) , who conducted the postmortem, death occurred on account of excessive bleeding and most of the injuries suffered by the deceased were abrasions, lacerated and contusion and the rupture of lungs , but he (PW-11) did not state that the said injuries were sufficient in ordinary course of nature to cause death and further keeping in view the situs and nature of injury and in absence of evidence elicited from the doctor that the injuries were sufficient in the ordinary course of nature to cause death, we are of the considered view that it is fit case where the conviction of the appellant under Section 302 of the IPC

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should be converted / altered under Section 304 Part-II of the IPC.

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Accordingly, the conviction of the appellant for offence punishable under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside and he is convicted for offence punishable under Section 304 Part-II of IPC and he is sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount with stipulations imposed by the learned trial Court is hereby maintained.

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This criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ankit

Bisheshar Kamar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bisheshar Kamar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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