Baban Singh Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1343 of 2018

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(Arising out of judgment dated 03.08.2018 passed in Sessions Trial No. 101/2017 by the Court of learned Additional Sessions Judge, (Fast Track Court), Baikunthpur, District-Koriya Chhattisgarh)

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Baban Singh S/o Shri Chatrapal Singh, Aged about 40 years, R/o Madanpur, Thana Baikunthpur, District-Koriya, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through Police Station Baikunthpur, District-Koriya, Chhattisgarh.

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---Respondent

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For Appellant : Mr. Alok Kumar Dewangan, Advocate/Panel Lawyer appointed by C.G. High Court Legal Services Committee.

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For Respondent : Mr. Rahul Tamaskar, Government Advocate.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(11.07.2024 )

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Sanjay K. Agrawal, J.

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1. Invoking criminal appellate jurisdiction of this Court,

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the present criminal appeal under Section 374 (2) of Cr.P.C. has been filed by the appellant herein calling

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in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 03.08.2018, passed by the Court of learned Additional Sessions Judge (Fast Track Court), Baikunthpur, District- Koriya, Chhattisgarh, in Sessions Trial No. 101/2017, by which, the appellant herein has been convicted as under:-

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Conviction		Sentence
U/s 302 of Code	Indian	Penal Imprisonment for life with fine of Rs. 200/- and, in default of payment of fine amount, additional R.I. for six months.
U/s 325 of Code	Indian	Penal Rigorous imprisonment for 5 years with fine of Rs. 200/- and, in default of payment of fine amount, additional R.I. for three months.
U/s 506 of Code	Indian	Penal Rigorous imprisonment for 3 years with fine of Rs. 200/- and, in default of payment of fine amount, additional R.I. for three months.

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All the sentences shall run concurrently.

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2. Case of the prosecution, in nutshell, is that on 13.08.2017 at about 12:30 p.m. at Village-Madanpur under P.S.- Baikunthpur, the appellant assaulted Nandlal (now deceased) by means of wooden stick by which he suffered grievous injuries and died, thereby, committed the aforesaid offence.

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3. The case of the prosecution, in brief, is that on 13.08.2017 at about 12:30 p.m. Vinod Kumar S/o Nandlal, R/o Madanpur stated that when his parents was working on the field, the appellant assaulted his father Nandlal by means of wooden stick, by which he suffered grievous injuries and died. Vinod Kumar (PW-5) reported the matter to the police, pursuant to which, merg intimation (Ex. P-09) and FIR (Ex. P-10) were registered. Inquest proceedings (Ex. P-06) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/13), proved by Dr. Mukesh Kumar Hela (PW-8) cause of death of the deceased was hemorrhagic shock caused by rupture of left lungs. Thereafter, appellant-accused was arrested (Ex.P/04) and his memorandum statement was recorded (Ex.P/02) pursuant to which, weapon of the offence, i.e. wooden stick has been seized from the possession of the appellant vide Ex.P/03. Further, from the spot, one met (chatai) along with plain soil and blood-stained soil were also seized vide Ex.P/12. Thereafter, the aforesaid seized articles were sent for chemical examination to FSL and, as per FSL report Ex.P/28, stains of human blood were

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found on the wooden stick seized pursuant to the memorandum statement fo the appellant.

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4. After completion of investigation, appellant was charge-sheeted for the aforesaid offence before the jurisdictional Criminal Court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he has not committed any offence and he has been falsely implicated.

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5. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 35 documents. In defence, though no witness has been examined but the statement of Vinod Kumar (PW-5) has been exhibited as Ex. D/1.

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6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences 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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7. Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant herein for the aforesaid offences, as the prosecution has not been able to prove the same beyond reasonable doubt. He further submits that since the death of the deceased is on account of rupture of left lungs and no injuries were found on any vital parts of the body of the deceased, and, as such, the injuries found on the body of the deceased were not sufficient in ordinary course to cause his death, therefore, the case of the appellant would not fall within the purview of Section 300 Thirdly of IPC, as his act is culpable homicidal not amounting to murder. As such, in light of the decision of the Supreme Court in the matter of Nankaunoo v.

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State of Uttar Pradesh 1, the conviction of the appellant can be altered/converted to an offence under Section 304 (Part-I of Part-II) of IPC and since the appellant is in jail from 14.08.2017 i.e. more than 6 years, he be sentenced for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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1 (2016) 3 SCC 317

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8. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and considering the nature of offence, the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. He further submits that, it is not a case wherein the offence can be converted to Section 304 Part-I or II of I.P.C. and, as such, the appeal deserves to be dismissed.

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9. 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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10. The first question for consideration is as to whether the death of deceased Nandlal was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the post-mortem report Ex. P-13 proved by Dr. Mukesh Kumar Hela (PW-8), according to which, cause of death has been stated to be hemorrhagic shock caused by rupture of left lungs, which in our considered opinion is a correct finding of fact based on evidence available on record and it is

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neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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11. Now the question for consideration is as to whether the appellant has assaulted the deceased or not, which the learned trial Court has recorded in affirmative by relying upon the statement of Basanti (PW-1), who is injured eye-witness to the incident and in her statement before the Court she has clearly stated that on the date and time of the offence while she alongwith her husband (deceased) were working in the fields, at that juncture, the accused-appellant herein came to the spot and assaulted the deceased by means of wooden stick, due to which, he suffered injuries and died. Basanti (PW-01) was subjected to lengthy cross-examination by the prosecution, but nothing could be extracted from her to hold that she has not seen the incident or telling lie before the Court in order to falsely implicate the appellant herein. As such, her testimony inspires confidence and can be relied upon. Furthermore, pursuant to the memorandum statement of the appellant recorded vide Ex.P/02, weapon of the offence i.e. wooden stick has been seized vide Ex.P/03, in which, as per FSL

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report (Ex.P/28) stains of human blood were found. As such, on the basis of aforesaid evidence available on record, it is quite clear that it is the appellant herein who assaulted the deceased, due to which, he suffered grievous injuries and died. Thus, the trial Court, in our considered opinion, has rightly recorded the finding that it is the appellant who on the date and time of the offence has assaulted the deceased, due to which, he suffered grievous injuries and died. We hereby affirmed the said finding.

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12. The aforesaid finding brings us to the next question for consideration, which is, whether the act of the appellant is culpable homicide not amounting to murder and would not attract Section 300 Thirdly of IPC and, therefore, his conviction can be converted to Section 304 (Part-I or Part-II) of IPC, as contended by learned counsel for the appellant?

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13. At this stage, it would be profitable here to notice the decision of the Supreme Court in the matter of Nankaunoo (supra), wherein it has been held in paragraphs 12 & 13 as under :

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The emphasis in clause three of Section 300 IPC is on the sufficiency of the

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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

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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 IPC.

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14. Reverting to the facts of the present case in light of

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the above-stated 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 PM report (Ex./13) though cause of death of the deceased is opined to be homicidal in nature, but as per the statement of Dr. Mukesh Kumar Hela (PW-8), no internal injury was found on the head of the deceased; deceased’s brain, heart and backbone were normal; fourth and fifth chest bones of the deceased

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were found broken, his neck bone was intact. The right lung was white and has no blood clot in it and the left lung was found puntured and its outer ribs were dislocated/fractured. However, Dr. Mukesh Kumar Hela (PW-8) has not stated at any point of time that the said injuries were sufficient in the ordinary course of nature to cause death of the deceased. Therefore, keeping in view the situs and nature of injury, in absence of evidence given by the doctor that the said injuries were sufficient to cause death, we are of the considered opinion that the principles of law laid down in Nankaunoo (supra) will squarely apply to the facts of the present case. As such, we are of the considered opinion that the act of the appellant herein is culpable homicide not amounting to murder and would not fall within the purview of Section 300 Thirdly of IPC. However, looking to the injuries sustained by the deceased, the appellant must have had intention as well as knowledge that such injuries inflicted by him on the body of the deceased would likely to cause his death and, therefore, the conviction of the appellant for offence under Section 302 of IPC

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can be altered/converted to Section 304 (Part-I) of IPC.

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15. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-I of IPC, for which, he is sentenced to undergo rigorous imprisonment for 10 years. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Consequently, the appellant be released from jail forthwith, if not required in any other matter/crime.

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

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17. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial

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Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, 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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Raghu Jat

Baban Singh v. State of Chhattisgarh

Case brief

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Baban Singh v. State of Chhattisgarh

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