Dismissed

Ishahak @ Ishak @ Lomadi v. State of Chhattisgarh

Chhattisgarh HC25 Jul 2024CRA/1148/2018

Case brief

AI extract

What is this about?

Divl Bench dismissed the criminal appeal filed by the appellant convicted for murder and assault. The High Court affirmed the trial Court's finding that the appellant committed murder by axe and caused grievous injury to another individual, upholding the conviction and sentence based on corroborated eye witness testimony and medical evidence.

What did the court decide?

Criminal Appeal dismissed; conviction under Sections 302, 450 and 326 IPC and concurrent sentences affirmed.

Ishahak @ Ishak @ Lomadi Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1148 of 2018

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(Arising out of judgment dated 18.04.2018 passed in Sessions Trial No.55/2016 by learned Additional Sessions Judge, Kunkuri, District Jashpur, CG)

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Ishahak @ Ishak @ Lomadi S/o Filip Kujur, Aged About 30 Years, R/o Village Basantala, Beltoli, PS Narayanpur, District- Jashpur, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Station Narayanpur, DistrictJashpur, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Arun Kumar Shukla, Advocate For Respondent : Mr. Ashish Shukla, Addl. A.G. along with Mr. Amit Buxy, Panel Lawyer

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(Division Bench)

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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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(26.07.202 4)

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Sanjay K. Agrawal, J.

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1. This criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 18.04.2018, passed

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by the learned Additional Sessions Judge, Kunkuri, District Jashpur, Chhattisgarh, in Sessions Trial No. 55/2016, by which, the appellant herein has been convicted for offence punishable under Sections 302, 450 & 326 of Indian Penal Code and sentenced as under:

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Conviction	Sentence
u/s 302 of the IPC	Life imprisonment and fine of Rs.1,000/-, in default of payment of fine one year additional rigorous imprisonment.
u/s 450 of the IPC	R.I. for 5 years and fine of Rs.500/-, in default of payment of fine 6 months additional rigorous imprisonment.
u/s 326 of the IPC	R.I. for 5 years and fine of Rs.500/-, in default of payment of fine 6 months additional rigorous imprisonment.

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All the sentences were directed to run concurrently.

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2. The case of prosecution, in short, is that on 16.08.2016 at about 7:00 p.m., in village Basantala Beltoli, Police Station Narayanpur, District Jashpur, the appellant herein trespassed the house of Smt. Seeta Bai and first assaulted her by axe, as a result of which, she suffered grievous injuries on her head and became unconscious, thereafter, assaulted her husband Laxman Ram (now deceased) by axe, due to which, he suffered grievous injured and died on the spot and thereby committed the aforesaid offence. The matter was reported to Police Station, Narayanpur by eye witness Subedar Bhagat (PW-1) pursuant to which Merg Intimation (Ex. P-1) was recorded and FIR (Ex. P-2) was registered. Spot map was prepared vide Ex. P-11 & 12.

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Inquest proceedings were conducted vide Ex.P-4 and the dead body of deceased was subjected to postmortem. As per postmortem report (Ex.P/14), proved by Dr. Smt. K. Kujur (PW-6), cause of death was Haemorrhagic shock due to head injury and fracture of left temporal bone and left mendible bone and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/8), weapon of offence i.e. axe was seized from his possession vide Ex.P-/9 which was sent along with other articles for chemical examination to FSL. In FSL report (Ex.P/31), no blood was found on axe but blood was found on the clothes of appellant. Injured Seeta Bai was also subjected to medical examination conducted by Dr. S. Toppo (PW-14) who found 7 injuries in her body and fractures of radius bone of left wrist and 2^nd & 3^rd proximal phalonx bones of left hand fingers vide report Exs. P-22 & P-23.

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3. After completion of investigation, appellant herein was charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence stating that he has not committed any offence and he has falsely been implicated in crime in question.

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4. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 32 documents and Articles A1 to A6 and the appellant-accused in support of his defence has not examined any witness but exhibited 2 documents.

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5. 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 questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Arun Kumar Shukla , learned counsel for the appellant, would submit that prosecution witnesses Subedar Bhagat(PW-1), Smt. Seeta Bai (PW-3), Ku. Sarita Bai (PW-5) & Shravan Ram (PW-7) are not reliable as they are interested witnesses, therefore, their testimony could not be made basis for conviction of the appellant under section 302 of IPC. He submits that as per FSL report (Ex. P-31), blood has not been found on the weapon of offence i.e. axe and the Serological report Ex.P-32 is also negative, therefore, the appellant is entitle for the acquittal on the basis of benefit of doubt.

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7. On the other hand, Mr. Ashish Shukla and Mr. Amit Buxy, learned State counsel, would support the impugned judgment and submit that there are eye witnesses to the incident who have fully supported the case of prosecution. He would further submit that the 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 therefore, the instant appeal deserves to be dismissed.

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

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9. The appellant has been convicted for offence under Sections 450 and 326 of IPC for house trespassing and assaulting Seeta Bai (PW-3) by dangerous weapon causing multiple injuries including fractures. The appellant has also been convicted for offence punishable under Section 302 of IPC for committing murder of Laxman Ram i.e. the husband of Smt. Seeta Bai (PW-3). We will first decide the offence under Sections 450 and 326 of IPC.

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Sections 450 & 326 of IPC

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10. Sita Bai has been examined by prosecution as PW-3. She has clearly stated before the Court that in the evening of the date of offence she was sitting on a chair a t home along with her daughter Ku. Sarita Bai (PW-5) and son Shravan (PW-7). At that time her other son Pawan was not at home. All of sudden, the appellant came and assaulted her by axe, due to which, she suffered grievous injuries on her head and writ and became unconscious. Her son and daughter i.e. PW-7 and PW-5 were crying and saying not to assault their mother. Seeta Bai (PW-3) was medically examined by Dr. S. Toppo (PW-14) who found multiple injuries on her body including fractures of radius bone of left wrist and 2^nd & 3^rd proximal phalonx bones of left hand fingers vide report Ex. P-22 & CT Scan Ex. P-23. Furthermore, her son Shravan (PW-7) and daughter Ku. Sarita Bai (PW-5) who were present at the place of incident have duly supported the case of the prosecution. They have been subjected to cross examination and except minor omissions and contradictions, nothing could be extracted to hold that they have not seen the appellant assaulting

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their mother Seeta Bai (PW-3). Though as per FSL report Ex. P-31 blood has not been found on the axe which was seized from the possession of appellant on his memorandum statement but the statements of the injured witness Smt. Seeta Bai (PW-3) and her son Shravan (PW-7) and daughter Ku. Sarita Bai (PW-5) who were present at the time of incident stand duly corroborated by medical evidence of Dr. S. Toppo (PW-14) who found 7 injuries over the body of Seeta Bai (PW-3) including fractures of radius bone of left wrist and 2^nd & 3^rd proximal phalonx bones of finger s vide MLC report Ex.P-22 and CT Scan Ex.P-23. Considering the statements of the eye witnesses Smt. Seeta Bai (PW-3), Ku. Sarita Bai (PW-5) & Shravan Ram (PW-7) we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who trespassed the house of Smt. Seeta Bai (PW-3) and assaulted her by axe, due to which, she suffered grievous injuries and multiple fractures, 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. Hence, the conviction of the appellant under sections 450 and 326 of IPC is well merite d and is accordingly affirmed.

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Section 302 of IPC

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11. So far as the conviction of the appellant for offence under Section 302 of IPC for committing murder of Laxman Ram is concerned, it is the case of prosecution that immediately after assault to Seeta Bai (PW-3), her daughter Ku. Sarita Bai (PW-5) and son Shravan (PW-7) went to the house of Sarpanch Subedar Singh (PW-1), however, they met him at

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Panchayat Bhawan and informed him about the incident. Tuleshwar (PW-8) and Baseer Ansari (PW-15) were also present along with Sarpanch Subedar Singh at Panchayat Bhawan. While all of them were going to the house of Seeta Bai (PW-3), on the way, they saw the appellant assaulting Laxman Ram by axe due to which he suffered grievous injuries and died on the spot. Eye witness Subedar Bhagat (PW-1) in his statement before the Court has clearly stated that while he was returning from Panchayat Bhawan to his house along with Tuleshwar (PW-8) and Sudhir Bek (PW12), near village Church, Ku. Sarita Bai (PW-5) & Shravan (PW-7) met them and informed about the incident. When they were proceeding to the house of Laxman and Seeta Bai, on the way near the house of Beersai, they saw the appellant assaulting Laxman Ram by axe and he immediately absconded from the spot. This witness has also been subjected to some extent of cross-examination, but nothing has been extracted to hold that he had not seen the incident. The statement of Subedar Bhagat (PW1) has been duly supported by eye witness Ku. Sarita Bai (PW-5) & Shrawan (PW-7) and also by witness Tuleshwar (PW-8) and Sudhir Bek (PW-12) and Baseer Ansari (PW-15) who are also said to have witnessed the incident. There is no reason found to disbelieve the statement of these witnesses and to hold that they have not seen the incident and that they are making a false statement.

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12. As regards motive, as per the statement of Seeta Bai (PW3), the appellant had taken the mobile phone of her children and sold it somewhere. When they demanded the Mobile phone, the appellant had beaten Seeta Bai (PW-3)

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by stick for which she had reported in the police station. Therefore, on the date of offence, the appellant assaulted her and her husband. As such, the motive of the offence is also established. Considering all these facts, we are of the considered opinion that the finding recorded by the trial Court that it is the appellant who, on the date of offence, after assaulting Seeta Bai (PW-3), also assaulted her husband Laxman Ram by an axe, due to which, he suffered grievous injuries and died, which is also supported by the evidence of Dr. Smt. K. Kujur (PW-6), who, in her query report (Ex. P-15), has opined that the said injuries could be caused by the weapon of assault i.e. the axe, is the finding of fact based on the evidence available on record and, as such, we hereby affirm the said finding. Hence, the conviction of the appellant for the offence punishable under Section 302 IPC is also affirmed and well maintained.

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13. In that view of the matter, we are of the opinion that the trial Court is fully justified in convicting and sentencing the appellant for the offence punishable under Sections 302, 450 and 326 of IPC and we do not find any good ground to interfere with the same.

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14. Resultantly, the present criminal appeal deserves to be and is accordingly dismissed.

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

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Khatai

Ishahak @ Ishak @ Lomadi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ishahak @ Ishak @ Lomadi v. State of Chhattisgarh

Case brief

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