Partly allowed

Mahendra Sindram v. State Of Chhattisgarh

Chhattisgarh HC13 Feb 2024CRA/427/2017

Case brief

AI extract

What is this about?

In a criminal appeal under Section 374 CrPC, the High Court of Chhattisgarh examined whether injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. Applying Nankaunoo v. State of UP, the Court found the injuries insufficient for murder and altered conviction to culpable homicide not amounting to murder, resulting in release from jail.

What did the court decide?

Conviction under Section 302/34 IPC set aside and altered to Section 304 Part-II IPC. Appellants sentenced to period already undergone in jail. Released from jail forthwith.

Mahendra Sindram Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr.A. No. 427 of 2017)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 427 OF 2017

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(Arising out of judgment dated 25.10.2016 passed in Sessions Trial No. H-53/2015 by the Sessions Judge, Mungeli)

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1 - Mahendra Sindram S/o Dallu Sindram, Aged About 25 Years R/o Kotri, Police Station Karanjiya, District Dindori, Madhya Pradesh.

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2 - Surendra Sindram S/o Mahajan Sindram, Aged About 23 Years R/o Saiejana, Police Station Karanjiya, District Dindori, Madhya Pradesh.

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... Appellants (In Jail)

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Versus

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State of Chhattisgarh, Through Station House Officer, Police of Police Station – Lormi, District – Mungeli, Chhattisgarh.

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... Respondent

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For Appellants :- Mr. G.V.K. Rao , Advocate/Panel Lawyer appointed by the Chhattisgarh High Court Legal Services Committee. For Respondent :- Mr. Ankur Kashyap, Deputy Government Advocate.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (14.02.2024)

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Sanjay K. Agrawal, J.

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1 . This criminal appeal preferred by the appellants under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 25.10.2016 passed in

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(Cr.A. No. 427 of 2017)

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Sessions Trial No. H-53/2015 by the Additional Sessions Judge, Mungeli, District- Mungeli (C.G.) by which, the appellants herein has been convicted for the offence punishable under Section 302/34 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.500/- and in default of payment of fine, to undergo additional rigorous imprisonment for three months.

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2 . Case of the prosecution, in brief, is that on 08.09.2015 at about 6:00 p.m., in village Anwarapani, Chowki Khudiya, Police Station – Lormi, District Mungeli, appellants herein namely Mahendra Sindram (A-1) & Surendra Sindram (A-2) in furtherance of their common intention, assaulted Dinesh Yadav (now deceased) by blunt side of axe (Qjlk), by which he suffered grievous injuries on his hand, leg and back portion of the body and died, thereby committed the aforesaid offence. This incident was witnessed by Sukhchain (PW-7), father of the deceased and the matter was reported to the police, on the basis of which, Merg Intimation was recorded vide Ex.P-13. FIR was registered vide Ex.P-09. Spot Map was prepared vide Ex.P-07. Inquest proceeding was conducted vide Ex.P-02 and the deadbody of deceased was subjected to postmortem which was conducted by Dr. Ajay Pathak (PW-11) vide Ex.P-14A, cause of death

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(Cr.A. No. 427 of 2017)

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was shock due to excessive bleeding and the nature of death was homicidal. The appellants were arrested vide Exs. P-19 & P-20. Memorandum statement of the appellants were recorded vide Exs. P-15 & P-16. Pursuant to memorandum statement of A-1, blood stained axe was recovered vide Ex.P-17 and sent for chemical examination to FSL. In FSL report (Ex.P-28) blood was not found on axe (Qjlk) (article-A).

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3 . After completion of the investigation, the appellants were 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 appellants/accused persons abjured their guilt and entered into defence.

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4 . During the course of trial, in order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 28 documents. Statement of the appellants under Section 313 of CrPC were recorded wherein they denied guilt, however, they have not examined any witness nor exhibited any document.

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5 . After conclusion of the trial, the trial Court, by impugned judgment dated 25.10.2016, on appreciation of oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in

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(Cr.A. No. 427 of 2017)

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the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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6 . Learned counsel for the appellants submits that taking the case of the prosecution as it is, since the injuries sustained by the deceased were not on the vital part of the body and the injuries were sustained on the leg, hand and back portion of the body of the deceased, the injuries caused by the appellants 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 appellants under Section 302/34 of IPC be converted to Section 304 Part-II read with Section 34 of IPC and the appellants be sentenced for the period already undergone, as they are in jail since 11.09.2015.

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7 . 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 appellants herein for the offence

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1 (2016) 3 SCC 317

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(Cr.A. No. 427 of 2017)

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punishable under Section 302/34 of IPC and it is not a case where the conviction of the appellants can be converted and the appeal, therefore, 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 also gone through the records with utmost circumspection.

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9 . The first question, as to whether the death of deceased Dinesh Yadav was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. Ajay Pathak (PW-11) who has conducted and proved the postmortem report (Ex.P-14A) in which the cause of death of deceased Dinesh Yadav has been opined to be shock due to excessive bleeding 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 deceased Dinesh Yadav was homicidal in nature.

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10. Now, the next question is as to whether the appellants have assaulted the deceased?

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(Cr.A. No. 427 of 2017)

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11. Considering the statement of Sukhchain (PW-7) father of the deceased, who witnessed the incident on which rightly relied upon by the prosecution to hold that the injuries were caused by both the appellants by blunt side of axe (Qjlk) which was seized (Ex.P-17) pursuant to the memorandum statement of A-1, the trial Court, in our considered opinion, has rightly recorded finding that the injuries caused by A-1 in furtherance of common intention by A-2 and we hereby also affirm the said finding of the trial Court.

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12. It is the contention on behalf of the appellants that the injuries which was noticed by Dr. Ajay Pathak (PW-11) on the leg, hand and back portion of the body of the deceased were not sufficient to cause death of the deceased. As per statement of Dr. Ajay Pathak (PW-11) cause of death was shock due to excessive bleeding, 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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13. The Supreme Court in the matter of Nankaunoo (supra), 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,

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(Cr.A. No. 427 of 2017)

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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 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

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(Cr.A. No. 427 of 2017)

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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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14. 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-14A) conducted by Dr. Ajay Pathak (PW-11) the two injuries were on the left leg below knee and one on the right leg knee, scratch mark on the right hand and one injury of 5x1 cm on the back portion of the body of the deceased, except this there was no external injury was found on the body of the 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 appellants under Section 302/34 of the IPC should be under Section 304 Part-II read with Section 34 of the IPC and

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(Cr.A. No. 427 of 2017)

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the prosecution has failed to establish that the nature of injuries suffered by deceased Dinesh Yadav were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC.

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15. Accordingly, the conviction and sentence of the appellants (A-1 & A-2) herein for the offence punishable under Section 302/34 of IPC is set aside/quashed and their conviction is hereby altered to Section 304 Part-II read with Section 34 of IPC and they are sentenced to the period already undergone, as they are in jail since 11.09.2015, more than 8 years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellants be released from jail forthwith, if not required in any other matter.

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

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H.L. Sahu

Mahendra Sindram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Mahendra Sindram v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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