Partly allowed

Suresh Tulavi v. State of Chhattisgarh

Chhattisgarh HC11 Nov 2024CRA/669/2019

Case brief

AI extract

What is this about?

The Division Bench considered an appeal challenging conviction and sentence for murder. Applying Nankaunoo, the court held that since the postmortem did not establish injuries were sufficient in the ordinary course of nature to cause death, the conviction from Section 302 IPC was altered to Section 304 Part-II IPC with a 10-year sentence.

What did the court decide?

Conviction altered from Section 302 IPC to Section 304 Part-II IPC; sentence of rigorous imprisonment for 10 years awarded.

Suresh Tulavi Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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CRA No. 669 of 2019

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Digitally ANKIT signed byANKITKUMAR KUMAR SINGH SINGH Date:2024.11.13 14:52:57 +0530

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2024:CGHC:43884-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 669 of 2019

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(Arising out of judgment dated 25.02.2019 passed in Sessions Trial No.30/2017 by the Sessions Judge, Rajnandgaon, Chhattisgarh.)

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Suresh Tulavi S/o Bisru Ram Tulavi, aged about 22 years, R/o Village Tohe, P.S.- Manpur ( wrongly typed as Manpurpur in the memo of appeal) District- Rajnandgaon, Chhattisgarh.

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...Appellant

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versus

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State of Chhattisgarh through - Police Station P.S.- Manpur District - Rajnandgaon, Chhattisgarh.

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...Respondent

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For Appellant :- Ms. Bulbul Agrawal, Advocate/Panel Lawyer, appointed by Chhattisgarh High Court Legal Services Committee.

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For State-Respondent :- Mr. Amit Buxy, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal

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Judgment On Board (12.11.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality,

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CRA No. 669 of 2019

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validity and correctness of the judgment of conviction and order of sentence dated 25.02.2019 passed by the Sessions Judge, Rajnandgaon, Chhattisgarh in Sessions Trial No. 30/2017 whereby the sole appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life.

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The case of the prosecution, in a nutshell, is that on 11.01.2017 at about 2:30 pm, at village Tohe, Police Station – Manpur, District – Rajnandgaon, Chhattisgarh, the appellant assaulted Satish Andhare, by knife by which he suffered grievous injuries. Thereafter, he was escorted to the District Hospital, Manpur, where doctor declared him dead. The said incident was reported by Golu Kature (PW13) pursuant to which merg intimation (Ex.P/16) and FIR (Ex.P/16A & P/17) were registered. Spot map was prepared vide Ex.P/3. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12) proved by Dr. Girish Khobragadhe (PW-12) cause of death was cardio respiratory arrest due to excessive blood loss on account of injury to left saphenous vein by sharp object and nature was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/7) weapon of offence i.e. knife and clothes

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CRA No. 669 of 2019

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were seized vide Exs.P/8 & P/9, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/29) on the weapon of offence i.e. knife (Article C) blood was found and on the other articles human blood was found.

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After due investigation, appellant 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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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 30 documents and 3 articles, whereas, the appellant in defence has not examined any witness, but exhibited 2 documents. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening

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CRA No. 669 of 2019

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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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Ms. Bulbul Agrawal, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. She also submits that if the case of the prosecution is taken, as it is, at most conviction for offence under Section 304 PartII would be made out as in the postmortem report (Ex.P/12) proved by Dr. Girish Khobragadhe (PW-12) in his statement nowhere states that the injuries caused over the body of the deceased were sufficient in ordinary course of nature to cause her death. She further submits that in view of the decision of the Supreme Court in the matters of Nankaunoo v. State of Uttar Pradesh1 the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to offence under Section 340 Part-II of the IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Amit Buxy, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence

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1 (2016) 3 SCC 317

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CRA No. 669 of 2019

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beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence in question. He also submits that injuries caused by the appellant over the body of the deceased in ordinary course of nature are sufficient to cause death of the deceased 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 and, as such, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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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/12) proved by Dr. Girish Khobragadhe (PW-12), 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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CRA No. 669 of 2019

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The next question for consideration would be whether the appellant has assaulted the deceased?

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Considering the testimony of eye witnesses Chetan Kumar (PW-2), Gokul Kumar Nishad (PW-5) & Golu Kature (PW-13) and further considering the fact that pursuant to memorandum statement of the appellant (Ex.P/7), weapon of offence and clothes of the appellant were seized vide Exs.P/8 & P/9 on which in FSL report (Ex.P/29) blood and human blood were found, respectively, the trial Court has proceeded to hold that it is the appellant who caused the death of the deceased, which in our considered opinion is correct finding of fact based on material available on record and we hereby affirm the said finding of the trial Court.

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Now, the question that would arise for consider is whether the conviction of the appellant for offence under Section 302 of IPC is justified or whether his conviction can be altered to Section 304 Part-II of IPC, as contended by learned counsel for the appellant?

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At this stage, it would be appropriate to notice the decision of the Supreme Court in the matters of Nankaunoo (supra).

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Their Lordships of the Supreme Court in the matter of Nankaunoo (supra) ingredients of Section 300 Thirdly have

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CRA No. 669 of 2019

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been laid down by their Lordships of the Supreme Court and in paragraphs 12 & 13 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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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

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CRA No. 669 of 2019

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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 I IPC.”

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Coming to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments, it is quite vivid from the statement of Dr. Girish Khobragadhe (PW-12) only two injuries were found over non-vital part of the body of the deceased one on the thigh of left leg and the another one on the palm of the right hand and the cause of death was excessive blood loss. However, considering the situs and nature of injury and in absence of evidence elicited from Dr. Girish Khobragadhe (PW-12) , who conducted the postmortem, he did not say that the injuries which were caused by the appellant over the body of the deceased were sufficient in ordinary course of nature to cause death, we are of the considered view that it is 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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CRA No. 669 of 2019

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Accordingly, the conviction of the appellant for 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 IPC and he is sentenced to undergo rigorous imprisonment for 10 years.

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This criminal appeal is partly allowed to the extent indicated herein-above.

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

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

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Ankit

Suresh Tulavi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Suresh Tulavi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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