Madhusudan Gond Vs State of Chhattisgarh

1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant-accused, is to the legality, validity and correctness of the judgment dated 26.02.2019 passed by the Sessions Judge, Mahasamund, District - Mahasamund, Chhattisgarh, in Sessions Trial No.03/2018 by which the sole appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life with fine of ₹1,000/- and in default of

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payment of fine amount to undergo additional rigorous imprisonment for six months.

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2. Case of the prosecution, in short, is that on 16.09.2017 at about 3:00 PM, at village Bemcha Jelpara, Police Station Mahasamund, District Mahasamund, Chhattisgarh, the appellant and other three co-accused persons assaulted Arjun Satnami (now deceased) with hand, fists and stone by which he suffered grievous injuries and died. The other three accused persons, namely, Smt. Rukmani Gond, Smt. Santoshi Gond and Smt. Sadhvi Gond have already been acquitted by the trial Court. The said incident was reported by Smt. Bisni Bai (PW-7), wife of the deceased, pursuant to which Dehati Nalishi, Dehati Merg and FIR were registered vide Exs.P/25, P-26 & P/31, respectively. Spot map was prepared vide Ex.P/23. Inquest proceedings (Ex.P/28) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/3) proved by Dr. Arvind Gupta (PW-5), cause of death is cardio-respiratory arrest because of hypovolumic shock due to rupture of spleen caused by injury over abdomen and nature of death of deceased was homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/14), stone was seized vide Ex.P/16. As per query report (Ex.P/4) proved by Dr.Arvind Gupta (PW-5), injuries which were found over the body of the deceased could be caused by the stones, which was seized pursuant to memorandum statement of the appellant. Further, as per the FSL report (Ex.P/36), human blood was found on the lungi, jeans, underwear and vest of the appellant.

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3. After due 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.

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4. In order to bring home the offence, prosecution has examined as many as 15 witnesses and exhibited 37 documents, whereas, defence, in support of its case, has examined one witness and exhibited three documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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5. The learned trial Court after appreciating the oral and documentary evidence available on record, acquitted the three co-accused persons but 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 herein questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Siddharth Rathod, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that the deceased died on account of rupture of the spleen and at the most offence under Section 304-II of the IPC is made out in the light of decision of Hon’ble the Supreme Court in the matter of Kariman Vs. State of Chhattisgarh¹ . He further submits that the appellant is in jail since 17.09.2017 i.e. more than 7

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1 2024 SCC Online SC 607

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years have been completed, thus, the present appeal deserves to be allowed in full or in part.

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7. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt, further, Bisni Bai (PW-7) is the eye-witness to the incident and, therefore, it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, the appellant has rightly been convicted for the offence in question. Thus, 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 perused the records minutely.

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9. The first question, as to 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/3) proved by Dr. Arvind Gupta (PW-5), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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10. Now, the question for consideration would be whether the appellant is the author of the crime in question?

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11. Considering the statement of Bisni Bai (PW-7) eye-witness, in which she has clearly stated that she had seen the appellant assaulting the deceased with stone and further considering the fact that as per the

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FSL report (Ex.P/36), human blood has been found on the lungi, jeans, underwear and vest of the appellant, the trial Court in our considered opinion has rightly recorded finding that it is the appellant who caused death of the deceased Arjun Satnami on account of land dispute between them and we hereby also affirm the said finding of the trial Court.

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12. Now, the question is, whether the case of the appellant would fall under Section 304 Part - II of IPC?

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13. In this regard, the Hon’ble Supreme Court in the matter of Kariman (supra) has noticed that the deceased died on account of fracture of rib caused by laceration of the spleen and their Lordships held that the offence would fall under Section 304 Part - II of the IPC which is reproduced in paragraph Nos.17 to 22 which read as under:-

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“ 17. Dr. R.K. Tripathi, Medical Jurist(PW-11) proved the post mortem report(Exhibit P-24) taking note of the presence of one bruise admeasuring 10 cm x 8 cm on the left side of the body of the deceased resulting into the fracture of one rib. The said fractured rib caused laceration of the spleen. The cause of death was opined as shock due to internal bleeding. Thus, by no stretch of imagination, can be it accepted that the accused had the intention to cause injury/injuries to the victim with the intention or knowledge that the same would result into her death.

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18. The act of the accused is not covered by any of the four clauses contained in Section 300 IPC which are reproduced hereinbelow for the sake of ready reference:-

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"300. Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

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2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

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3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

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4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

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19. The accused can at best be attributed with the knowledge that the injury of the nature which he inflicted upon Dasmet Bai(deceased) was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Thus, the act of the accused is covered under Part II of Section 304 IPC which is extracted hereinbelow for ready reference:-

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“304. Punishment for culpable homicide not amounting to murder.-

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.....or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

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(emphasis supplied)

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20. It may also be noted that Dr. R.K. Tripathi, Medical Jurist(PW- 11) did not express opinion that the single injury caused to the deceased was sufficient to cause death in the ordinary course of nature.

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21. Hence, we are of the opinion that the conviction of the accused as recorded by the trial Court and affirmed by the High Court for offence under Section 302 IPC is unsustainable in facts as well as in law.

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22. Thus, the conviction of appellant herein for the offence punishable under Section 302 IPC is modified and altered to that under Part II of Section 304 IPC. The appellant is directed to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304, Part II of IPC.”

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14. Reverting to the facts of the present case in the light of the decision of Hon’ble the Supreme Court in the matter of Kariman (supra), examination of facts of the case and considering the statement of Dr. Arvind Gupta (PW-5) who conducted the postmortem over the body of the deceased who found that 3^rd , 4^th , 5^th and 6^th ribs of left side were fractured and he also found that on account of rupture of the spleen the blood circulation reduced by which the appellant suffered cardiorespiratory arrest because of hypovolumic shock. Furthermore, the Dr. Arvind Gupta also opined that in case of enlargement of spleen, the spleen comes under the ribs and on account of injuries, rupture of spleen may occur. As such, considering the statement of Dr. Arvind Gupta (PW-5) that the cause of death of the deceased is due to rupture of spleen on account of injury on his abdomen and in the light of decision of Hon’ble Supreme Court cited above, we are of the considered view that it is a fit case where the conviction of the appellant under Section 302 of the IPC should be converted / altered under Section 304 Part – II of the IPC.

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15. Accordingly, the conviction of the appellant for the offence punishable 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 and he is convicted for offence punishable under Section 304 Part – II of the IPC and he is sentenced to the period already undergone by him, as he is in jail since 17.09.2017, for more than 7 years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, the appellant be released from jail forthwith, if not required in any other matter.

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16. As a consequence, 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 to the trial Court concerned and to the Superintendent of Jail where the appellant is presently lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Prakash

Madhusudan Gond v. State of Chhattisgarh

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Madhusudan Gond v. State of Chhattisgarh

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