Kanak Ram Vs State of Chhattisgarh

1. This criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 06.03.2002, passed by the Additional Sessions Judge, Janjgir, Session Division Bilaspur (C.G.), in Sessions Trial No.35 of 2001, whereby the appellantaccused has been convicted and sentenced as under :-

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Conviction	Sentence
Under Section 304	Rigorous imprisonment for 7 years and
Part II of Indian	to pay fine of Rs.100/-, in default of
Penal Code, 1860	payment of fine, additional rigorous imprisonment for 1 month.

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Under Section 201 Rigorous imprisonment for 2 years and of Indian Penal to pay fine of Rs.100/-, in default of Code, 1860 payment of fine, additional rigorous imprisonment for 1 month. Both the sentences were directed to run concurrently.

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2. As per prosecution case, on 10.10.2000, at village Pendri, appellant Kanakram was assaulted his wife Durpatibai with an intention to kill her, by which, she suffered fatal injuries and died and further, to save himself from lawful punishment, he gave false information to the effect that Durpatibai died due to epilepsy.

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3. Brief facts of the case, are that, on 10.10.2000, appellant Kanakram went to village Dhanpuri with his companion Jidhanlal (PW-1). After returning, both of them sat in the house of appellant located at village Pendri within the ambit of Police Station Pamgarh and drank alcohol. Thereafter, at about 04.00 PM, Appellant confronted his wife Durpatibai in front of his family members and Jidhanlal (PW-1) with regard to cooking meal. He assaulted his wife by means of hands, punches, kicks as well as by broom. The said incident was witnessed by Sunibai (PW-2) and Geetabai (PW-3). After the death of Durpatibai, appellant Kanakaram had stated to his neighbour Saheblal (PW-5), who came to the spot that he killed his wife Durpatibai and he should save her. Thereafter, Dehati Nalishi was registered by the police

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vide Ex.P/10. Merg intimation was registered and dead body was sent for postmortem examination, which was conducted by Dr. D.C. Chaudhary (PW-22) and as per postmortem report (Ex.P/24), it was opined that death of Durpatibai could be homicidal or accidental due to head injury. Statements of witnesses were recorded by the police. Memorandum statement of appellant was recorded vide Ex.P/4, pursuant to which, a broom used in the incident was seized vide Ex.P/5, which was sent for its chemical examination to Forensic Science Laboratory and in FSL report (Ex.P/20), human blood stains were found on the said broom. After completion of the investigation, chagesheet was filed against the appellant.

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4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 24 witnesses and exhibited 31 documents. In defence, appellant has not examined any witness. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded that he is innocent and when he asked Durpatibai to cook meal, she went outside to get wood and dung cake, then suddenly she hit on wooden frame and started wriggling. He further pleaded that Durpatibai suffered with an epileptic fit, as such, it is assumed that she had an epileptic fit. His wife Durpatibai got injured due to hitting on the wooden

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frame and he did not assault her.

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5. After conclusion of the trial, the trial Court, by impugned judgment dated 06.03.2002, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offence punishable under Sections 304 Part II & 201 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him as mentioned herein-above, against which, the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence.

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6. Learned counsel for the appellant submits that witnesses of the incident are not reliable. He further submits that Chhind broom was a household item, on which, human blood was found to be of no special significance because it is undisputed that Durpatibai got bruises and bleeding from hitting on wooden frame. He also submits that a case of culpable homicide is not made out against the appellant. It is contended that conclusion of the trial Court is not based on material available on record, hence, appellant be acquitted of the charges levelled against him. It is argued that Dr. D.C. Chaudhary (PW-22), who conducted postmortem, has not given a clear opinion that death of Durpatibai was a homicide but also given an opinion that it was an accident. In such a situation, if infliction of injuries by the appellant is proved, then at the most, a case under Section 325

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of IPC is made out. It is lastly argued that appellant has remained in custody for about 2 years and 1 month, as such, he be sentenced for the period already undergone by him.

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7. On the other hand, learned counsel for the respondent/State has supported the decision in question by saying that the conclusion of the trial court is based on valid and reliable evidence which does not require any interference. Therefore the appeal should be dismissed.

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8. I have heard learned counsel appearing for the parties and perused the record of the case with utmost circumspection.

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9. Dr. D.C. Chaudhary (PW-22) conducted the postmortem of deceased Durpatibai on 11.10.2000 and gave report vide Ex.P/24, according to which, there was blood on her body and clothes; both eyes were closed; eyelids were swollen and turned black; pupils were dilated; face was swollen; swelling on forehead and while pressing, there would be depressions; blood was present near both the nostrils and stomach was bloated. He found following injuries over the body of deceased :-

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“(i) Abrasion over right frontal region of 2 x 1 cm.

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(ii) Whole right ear was swollen.

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(iii) Lacerated wound over back side of right ear of ½ x ½ cm.

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(iv) Both eyes turned black.

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(v) Lacerated wound over mustard region of

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1 x ½ cm.

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(vi) Swelling over back side of head and ear.

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(vii) Abrasion over right maxillary area 1 x ½ cm.

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(viii) Swelling on face surrounded with blood”

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10. Dr. D.C. Chaudhary (PW-22) has opined that death of deceased

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was due to head injury, which could have been homicidal or accidental. As such, it is clear from the evidence of doctor that death of Durpatibai has been caused due to head injury.

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11. Now it has to be seen whether the said injury was caused voluntarily by the appellant ?

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12. The case of the prosecution against the appellant is based on two types of evidence. Jidhanlal (PW-1), Sunibai (PW-2) and Geetabai (PW-3) are eyewitnesses, whereas Saheblal (PW-5), Ratiram (PW-7), Rupesh Kumar Kashyap (PW-8) and Madhuram (PW-9) are the witnesses, who saw the appellant coming out from his own house and stated that he killed his wife Durpatibai. In Court statement, eyewitness Jidhanlal (PW-1) has clearly deposed that firstly appellant has slapped his wife Durpatibai 3-4 times and when Sunibai (PW-2) reached there and intervened into quarrel, appellant has assaulted Durpatibai by means of hands and fists over her chest and head. Similarly, Sunibai (PW-2) has deposed that when she reached, she saw a fight taking place between appellant and Durpatibai and

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appellant has assaulted Durpatibai by means of a broom. He assaulted her inside and outside the house as also kicked her. Geetabai (PW-3) has deposed that she saw a fight taking place, Durpatibai was lying unconscious and was hiccuping. The appellant had kicked Durpatibai three times and she folded her arms and legs and told him not to assault her, upon which, he stated that she was throwing a tantrum. All these three witnesses remained consistent in their statements during their crossexamination.

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13. Other witnesses Saheblal (PW-5), Ratiram (PW-7), Rupesh Kumar Kashyap (PW-8) and Madhuram (PW-9) have corroborated the fact of prosecution case that appellant was stated that he has killed his wife, please save her. Thus, statements of all these witnesses corroborated with statements of the witnesses who present on the spot and thereby establishes the fact that it was the appellant who caused injuries to his wife Durpatibai by assaulting her by means of hands, punches, kicks and broom, which resulted into her death.

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14. The argument of learned counsel for the appellant that Durpatibai got injured by hitting on wooden frame of her house while going to collect wood or dung cake is not found acceptable because it would be natural to get only one injury after colliding with a wooden frame, but more than one wound has been found over her head. In such a situation, when a bloodstained broom

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has also been recovered at the instance of appellant and all these witnesses have stated that appellant has assaulted his wife by means of broom, then this fact has been proved beyond doubt that it was the appellant who had assaulted Durpatibai, due to which, she suffered injuries and died.

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15. The second important question is whether the case of appellant falls within the category of culpable homicide or at the most, it constitutes an offence under Section 325 of IPC ?

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16. In support of its argument, learned counsel for the appellant has placed reliance in the matter of Gulab Verma v. State of Chhattisgarh passed in Criminal Appeal No.224 of 2011 on 15.07.2019. In the said case, the fight happened suddenly, that too there was an assault with hands and fists and as a result of which, deceased suffered ribs fracture and heart was also ruptured, which resulted into her death. In that case, instead of finding the case under section 302 of IPC, it was determined that the appellant did not have any intention or knowledge to cause the death of deceased, then, case of appellant was found under section 325 of IPC. Paragraph 9 of which, is as follows :-

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“9. Having seen the eye witnesses account rendered by PW-1 Amrit Gendra and PW-3 Ku. Anusuiya and reading the same in juxtaposition to the medical evidence of PW-11 Dr. A.K. Mishra and the postmortem report (Ex.-P/17), we are of the considered view that the act

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committed by the appellant would fall under Section 325 IPC and not under Section 302 IPC for the reason that the incident happened all of a sudden without premeditation of mind. The appellant was not armed and also had not reached the spot with preparedness for causing such injuries to the deceased with intention and knowledge to commit murder. His act of giving hands and fists blows to the deceased developed on the spot due to the circumstances where an altercation and manhandling between members of two families was going on. The appellant has not acted in a cruel or unusual manner by continuing the assault on the deceased even after she fell down. Such being the evidence on record, there is no material to hold that the appellant had intention or knowledge to cause such bodily injuries which would have resulted in death of the deceased. His intention was only to cause grievous injuries which is punishable under Section 325 IPC.”

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17. In the case at hand, appellant had a small domestic dispute with his wife Durpatibai with regard to cooking meal. The Appellant has not used any deadly weapon in the incident, which would indicate his intention to cause death of Durpatibai. Chhind broom is a common household item. The Appellant has assaulted his wife with hands, punches, kicks and broom. The medical opinion was also not to the effect that nature of death was that of homicide, but according to the evidence, it is proved that

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Durpatibai died due to the head injuries caused by the appellant.

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18. Looking to the entire facts and evidence available on record, it does not appear that at the time of assault, appellant had any intention to cause death of Durpatibai or he had a knowledge that the blows inflicted by him were likely to cause death of his wife. In such a situation, in the light of above judicial precedent, this Court is of the considered opinion that the act of the appellant herein would fall within the purview of Section 325 of IPC and, consequently, conviction of the appellant under Section 304 Part II of IPC can be altered/converted into Section 325 of IPC for causing grievous hurt to Durpatibai.

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19. Insofar as conviction and sentence of appellant under Section 201 of IPC is concerned, it is clear from the evidence that appellant was aware that due to the injuries caused by him to Durpatibai, she died, yet he gave false information to the police to save himself from punishment that Durpatibai suffered an epileptic fit and fell down after hitting with a wooden door frame and then died. Therefore, conviction of the appellant under Section 201 Part I of IPC is converted into Section 201 Part III of IPC and he is sentenced rigorous imprisonment for 1 year under Section 201 Part III of IPC.

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20. In view of the aforesaid discussions as well as considering the facts and circumstances of the case, particularly the fact that incident

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happened about 23 years ago; age of the appellant appears to be about 58 years as per memo of appeal, in such a situation, there is no need to send him to jail again. Therefore, considering the fact that the appellant has remained in jail for about 2 years and 1 month, he is sentenced to the period already undergone by him for the offence under Section 325 of IPC. So far as sentence of 1 year rigorous imprisonment under Section 201 Part III of IPC is concerned, the appellant has already served jail sentence of 2 years and 1 month so that imprisonment also undergone. However, the fine imposed by the learned trial Court shall remain intact for both the offences.

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21. The appellant has been stated to be on bail, he need not surrender before the trial Court. However, bail bonds of the appellant shall remain in force for a period of six months in view of the provisions contained in Section 437-A of Cr.P.C. If there is no need to appear in the superior Court, appellant will be deemed free from bail bonds.

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22. The criminal appeal is allowed in part to the extent indicated herein-above.

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23. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.

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Sd/- (Sanjay Kumar Jaiswal) Judge

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Yogesh

Kanak Ram v. State of Chhattisgarh

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Kanak Ram v. State of Chhattisgarh

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