Partly allowed

Lal Sai @ Konda v. State of Chhattisgarh

Chhattisgarh HC4 Sept 2024CRA/264/2019

Case brief

AI extract

What is this about?

In a criminal appeal against conviction and life sentence for murder, the Division Bench held that the evidence did not establish that injuries were sufficient in the ordinary course of nature to cause death. Relying on Supreme Court precedents, the Court set aside the murder conviction and reconvicted the appellant under Section 304 Part-I IPC.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant convicted under Section 304 Part-I IPC and sentenced to ten years rigorous imprisonment with fine.

Lal Sai @ Konda Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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Page 1 of 8

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(Cr.A.No.264/2019)

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Digitally signed by SISTA 2024:CGHC:34579-DB SISTA SOMAYAJULU SOMAYAJULU Date: 2024.09.06 17:37:26 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR

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2024:CGHC:34579-DB

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NAFR

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CRA No. 264 of 2019

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(Arising out of judgment dated 6-12-2018 passed by the 2^nd Additional Judge to the Court of Additional Sessions Judge, Ramanujganj in Sessions Trial No.R 60/2016)

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Lal Sai @ Konda, S/o Ram Prasad, Aged about 31 years, R/o Village Pendardih (Lamtipara), PS Shankargarh, District Balrampur-Ramanujganj, Chhattisgarh.

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... Appellant

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Versus

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State of Chhattisgarh, Through PS Shankargarh, District BalrampurRamanujganj, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Aman Kesharwani, Advocate. For Respondent/State : Mr. H.A.P.S. Bhatia, Advocate.

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Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Amitendra Kishore Prasad, JJ.

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Judgment on Board (05/09/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Additional Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay fine of ₹ 5,000/-, in default of

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(Cr.A.No.264/2019)

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payment of fine to further undergo additional rigorous imprisonment for one year.

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Case of the prosecution, in short, is that on 5-4-2016 at about 11:00 p.m., at Village Pendardih (Lamtipara), Police Station Shankargarh, District Balrampur-Ramanujganj, the appellant assaulted his wife Smt. Kaleshwari Bai by bamboo stick by which she suffered grievous injuries and died, which was witnessed by Ganeshwari (PW-3), Binita (PW-4) & Nandkeshwar (PW-6). Ramdhani Kali (PW-1) reported the matter to the police pursuant to which marg intimation Ex.P-1 was lodged and FIR was registered vide Ex.P-2. Spot map in shape of crime details form was prepared by the investigating officer vide Ex.P-3. Patwari prepared spot map vide Ex.P-4 and wheels of investigation started running. Inquest on the dead body of the deceased was conducted vide Ex.P-6. On the recommendation of panchas, the dead body was subjected to postmortem which was conducted by Dr. Shashikala Toppo (PW-13) vide postmortem report Ex.P-13A in which cause of death was stated to be shock due to excessive bleeding as a result of fracture of left femur bone and nature of death to be homicidal. Pursuant to the memorandum statement of the appellant recorded vide Ex.P-7, bamboo stick was seized from his possession vide Ex.P-8. Seized articles were sent for chemical examination to the Regional FSL, Ambikapur, from where report Ex.P-18 was received according to which blood was found on the bamboo stick Article A.

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(Cr.A.No.264/2019)

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Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused / appellant was chargesheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Balrampur-Ramanujganj, from where the learned 2^nd Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, received the case on transfer for conducting trial and hearing and disposal in accordance with law.

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The accused / appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as fourteen witnesses and exhibited 18 documents. The defence has not examined any witness, but exhibited one document Ex.D-1 – statement of Smt. Dewanti Bai recorded under Section 161 of the CrPC, in support of its case.

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The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

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Mr. Aman Kesharwani, learned counsel appearing for the appellant, would submit that as per the statement of Dr. Shashikala Toppo (PW-13), the doctor who conducted postmortem, and according to the postmortem report Ex.P-13A, cause of death is excessive bleeding due to fracture of left femur bone and she did not state that injuries found on the body of

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(Cr.A.No.264/2019)

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the deceased were sufficient in the ordinary course of nature to cause death, therefore, offence under Section 304 Part-II of the IPC would be made out against the appellant in light of the decisions of the Supreme Court in the matters of Sanjay v. State of Uttar Pradesh 1 and Nankaunoo v. State of Uttar Pradesh 2 and as such it is a fit case where conviction of the appellant can be converted/altered to an offence either under Section 304 Part-I or 304 Part-II of the IPC. Therefore, taking into consideration the period already undergone by the appellant, the appellant be released from jail forthwith by partly allowing the appeal.

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Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State / respondent, would support the impugned judgment and oppose the appeal and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted the appellant and it is not the case which should be converted to Section 304 Part-I or Part-II 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 record with utmost circumspection.

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The first question, 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-13A proved by Dr. Shashikala Toppo (PW13), which is a finding of fact based on the evidence available on record,

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1 (2016) 3 SCC 62

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2 (2016) 3 SCC 317

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Page 5 of 8

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(Cr.A.No.264/2019)

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it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the next question is whether the appellant is the author of the crime in question, which has been answered by the trial Court in affirmative. Considering the statements of Ganeshwari (PW-3), Binita (PW-4) & Nandkeshwar (PW-6), who had seen the appellant assaulting the deceased by which the deceased succumbed to injuries sustained by him and died and further considering that they have been subjected to some extent of cross-examination, but nothing has been extracted from them to hold that they are telling lie and they have not seen the incident, it is established that the appellant has caused injuries to the deceased and as such, we are of the considered opinion that the trial Court has rightly held that it is the appellant who has caused injuries to the deceased. We do not find any perversity in the said finding of the trial Court and we affirm the finding that the appellant is the author of the crime.

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The aforesaid finding brings us to the next question for consideration, whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and, thus, his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant?

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It has been contended on behalf of the appellant that the doctor who conducted postmortem on the body of the deceased did not say that the

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(Cr.A.No.264/2019)

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injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death, therefore, in light of the decision of the Supreme Court in Nankaunoo (supra), conviction of the appellant deserves to be converted to Section 304 Part-I or Part-II of the IPC.

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The ingredients which are to be established under Section 300 Thirdly of the IPC have been laid down by their Lordships of the Supreme Court in Nankaunoo (supra), in which it has been 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″ × 1½″ on the back and inner part of left thigh, six gunshot wounds of exit each ⅓″ × ⅓″ 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 death.

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(Cr.A.No.264/2019)

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We find substance in the contention of the learned counsel for the appellant that the injury was on the inner part of left thigh, which is a 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 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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Reverting to the facts of the present case in light of the above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that admittedly and apparently, the deceased died on account of shock due to excessive bleeding as a result of fracture of left femur bone and the doctor who conduced postmortem namely, Dr. Shashikala Toppo (PW-13) has only stated that the deceased died on account of fracture of left femur bone and other injuries were not sufficient to cause death, even she did not say that the injuries caused by the appellant on the body of the deceased were sufficient in the ordinary course of nature to cause death. Considering the nature of injuries and further considering that the doctor who conducted postmortem did not say that injuries caused to the deceased were sufficient in the ordinary course of nature to cause death, we are of the considered opinion that it is a fit case where conviction of the appellant under Section 302 of the IPC should be converted to

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(Cr.A.No.264/2019)

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Section 304 Part-I of the IPC in light of the decision of the Supreme Court in Nankaunoo (supra).

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In view of the aforesaid discussion, conviction of the appellant 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. The appellant is hereby convicted for offence punishable under Section 304 Part-I of the IPC and sentenced to rigorous imprisonment for ten years with fine and default stipulation as awarded by the trial Court.

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The criminal appeal is partly allowed to the extent indicated hereinabove.

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

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Sd/Sd/(Sanjay K. Agrawal) (Amitendra Kishore Prasad) JUDGE JUDGE

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Soma

Lal Sai @ Konda v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Lal Sai @ Konda v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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