Baansdev @ Anil Vs State Of Chhattisgarh

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(Cr.A. No. 1136 of 2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 1136 OF 2017

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(Arising out of judgment dated 19.04.2017 passed in Sessions Trial No. R-64/2016 by the 2^nd Additional Judge of Additional Session Judge, Ramanujgang, District:Sarguja)

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Baansdev @ Anil S/o Devlal, Aged About 28 Years R/o Village Koti, Nagpanipara, Police Station Raghunathnagar, District- Balrampur- Ramanujganj, Chhattisgarh., Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through Police Station Raghunathnagar, District Balrampur- Ramanujganj, Chhattisgarh., Chhattisgarh

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---- Respondent

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For Appellant : - Mr. Utkal Pradhan, Advocate / Panel Lawyer appointed by C.G.High Court Legal Services Committee. For Respondent : - Mr. Rahul Tamaskar, G.A .

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(Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (07.03.2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 19.04.2017 passed in Sessions Trial No. R-64/2016 by the 2^nd Additional Judge of Additional Session Judge, Ramanujganj,

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(Cr.A. No. 1136 of 2017)

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District: Sarguja (C.G.), by which, the appellant herein has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.20,000/- and in default of payment of fine, to undergo additional rigorous imprisonment for 1 year.

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Case of the prosecution, in brief, is that on 18.04.2016 at about 3:00 p.m., in village Koti, Nagpanipara, Police Chowki-Wadrafnagar, under Police Station: Raghunathnagar, District:Balrampur-Ramanujnagar (C.G.), appellant herein assaulted his wife-Sunita (now deceased) by hand & fist, by which, she suffered grievous injuries on her face, thereafter, she was taken to the hospital, Wadrafnagar, during the treatment she died, thereby committed the aforesaid offence.

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Further case of the prosecution is that the complainantDevlal Khairwar (PW-01) informed to Police Chowki:Wadrafnagar, that his son-Baansdev(appellant) and his wife-Sunita(deceased) with his son were living separately nearby his house. About 15 days ago, there was dispute occurred between the appellant and his wife-Sunita (deceased). Thereafter, Sunita(deceased) said to the complaint-Devlal (PW-01) that his husbandappellant used to go to the house of his elder brother’s

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son and there he consume liquor with the wife of his son and also made a relationship with her. On date of incident i.e. 18-04-2016, at about 3 p.m., the appellant herein assaulted his wife-Sunita(deceased) by hand & fist regarding the aforesaid issue. Then, Devlal (PW-1), father of the appellant herein, Uncle-Bandhu (PW-2), cousin-Ramkesh (PW-3), Manmati(PW-6), mother-in-law of deceased reached to the spot, where they saw that the the appellant was assaulting his wife Sunita(deceased), thereafter, they intervened the matter. Subsequently, the appellant again started to assault the deceased, due to which, she suffered injuries and she was taken to the hospital, Wadrafnager and during the treatment at about 11-12 p.m. at night she died. Thereafter, on the basis of information, the police registered merg intimation vide Ex.P-01. Spot map and Panchnama were prepared vide Ex.P-07 and Ex.P-08 respectively. Thereafter, FIR (Ex.P-02) was registered against the present appellant on 19-04-2016 at Police Chowki:Wadrafnagar at zero under Section 302 of the Indian Penal Code and on the same day, FIR vide Ex.P-17 was registered against the appellant at Police Station Raghunathnagar, District: Balrampur in crime No.17/16 for the offence under Section 302 of the IPC.

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Inquest proceedings (Ex.P/04) was conducted and the dead body of deceased was sent for postmortem. As per postmortem report (Ex.P/13-A), proved by Dr. Vinod Singh (PW-11), cause of death was cardio respiratory failure, as a result, clavicle bone fractured, 1^st ribs fractured(left side) and Trachea filled with clotted blood. On the basis of memorandum statement vide Ex.P-14, wooden stick was seized. Seizure of articles (Exs.P/15 & 22) were made. After completing the investigation, the final report was prepared.

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After completion of the investigation, the appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant/accused person abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 22 documents. Statement of the appellant under Section 313 of Cr.P.C. was recorded wherein he denied guilt, however, he has not examined any witness nor exhibited any document.

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After conclusion of the trial, the trial Court, by impugned judgment dated 19.04.2017, on appreciation

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of oral and documentary evidence available on record, convicted the appellant 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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Learned counsel for the appellant submits that the injuries caused by the appellant to his wife Sunita(deceased) on her shoulder, on account of which, ribs were found fractured, due to which she died, were not on the vital part of the body and were not sufficient to cause death in the ordinary course of nature and therefore, the case of the appellant would not fall under Section 300-Thirdly of IPC but it would fall under Section 304 Part-I or Part-II of IPC, in view of the decision of the Supreme Court in the matter of

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Nankaunoo v. State of Uttar Pradesh 1. Therefore, the conviction of the appellant under Section 302 of IPC be converted to Section 304 Part-II of IPC.

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Learned State counsel would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for the offence punishable under Section 302 of IPC and it is not a case where the

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1 (2016) 3 SCC 317

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conviction of the appellant can be converted and the appeal, therefore, deserves to be dismissed.

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

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10. The first question, as to whether the death of deceasedSunita was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. Vinod Singh (PW-11) who has conducted and proved the postmortem report (Ex.P-13/A) in which the cause of death of deceased-Sunita was cardio respiratory failure, as a result, clavicle bone fractured, 1^st ribs fractured(left side) and Trachea filled with clotted blood and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the trial Court holding that the death of Sunita (deceased) was homicidal in nature.

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11. Now, the next question is as to whether the appellant has assaulted the deceased?

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12. In the instant case, the appellant and his wifeSunita(deceased) were in the same house on the date and time of offence. Considering the statement of complainant-Devlal (PW-01), father of the appellant, that on the date of incident i.e. 18-04-2016, when he was working at his home, then he heard voice of quarreling between the appellant and Sunita(deceased). Then, he reached the spot along with his wife and they saw that the appellant was assaulting Sunita(deceased) by hand & fist and by wooden stick, thereafter, the deceased was taken to the hospital, Wadrafnagar, where during the treatment, she died. Moreover, on the basis of memorandum statement of the appellant, weapon i.e. wooden stick has been seized vide Ex.P-15. As such, the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased is based on evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

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13. It is the contention on behalf of the appellant that the injuries which was noticed by Dr. Vinod Singh (PW-11) on the body of the deceased were not sufficient to cause death of the deceased. As per statement of Dr. Vinod

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Singh (PW-11) cause of death was cardio respiratory failure, as a result, clavicle bone fractured, 1^st ribs fractured(left side) and Trachea filled with clotting of blood, therefore, the case 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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14. The Supreme Court in the matter of Nankaunoo (supra),

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in paragraph 12 & 13, has held 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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13. 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

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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 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-1 of IPC.

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15. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matter of Nankaunoo (supra), it is quite vivid that as per the postmortem report (Ex.P-13/A) conducted by Dr. Vinod Singh (PW-

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11), according to him, the deceased suffered injuries on her shoulder, due to which, clavicle bone and ribs were found fractured and also Trachea was ruptured with clotting of blood. In the light of the law laid down by their Lordships of the Supreme Court in the matter of B. N. Srikantiah & Others Vs The State Of Mysore (AIR 1958 672), that injury on the head or neck are of the vital part of the body while injury on the shoulder are not on vital part of the body. Since, the injuries caused by the appellant to the deceased on shoulder, by which, 1^st ribs was fractured, due to which, death has occurred. However, it has not been stated by the Dr. Vinod Singh (PW-11) that the injuries suffered by the deceased were ordinary course of nature to cause death of Sunita (deceased). As such, considering the situs and nature of injuries and in absence of evidence elicited from the doctor that the sustained injuries was sufficient in the ordinary course of nature to cause death, we are of the considered view that it is a fit case where the conviction of the appellant under Section 302 of the IPC should be under Section 304 Part-II of the IPC and the prosecution has failed to establish that the nature of injuries suffered by Sunita(deceased) were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC.

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16. Accordingly, the conviction and sentence of the appellant for the offence punishable under Section 302 of IPC is set aside/quashed and his conviction is hereby altered to Section 304 Part-II of IPC. The appellant is reported to be in jail since 20.04.2016 i.e. more than 7 years and 11 months, taking into consideration the period he has already undergone, we award him sentence already undergone by him, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other case.

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17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

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18. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court and the concerned Superintendent of Jail be also supplied with the certified copy of this judgment for information and necessary action, if any, at the earliest.

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SD/SD/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Amardeep

Baansdev @ Anil v. State Of Chhattisgarh

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Baansdev @ Anil v. State Of Chhattisgarh

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