Dismissed

Dhansai v. State of Chhattisgarh

Chhattisgarh HC1 Feb 2024CRA/703/2019

Case brief

AI extract

What is this about?

Criminal appellant challenged conviction and sentence for murder and unlawful assembly involving a wife's death. High Court affirmed impugned judgment based on eyewitness accounts and post-mortem findings, dismissing the appeal and confirming the original sentence.

What did the court decide?

The criminal appeal is dismissed with no interference in the impugned judgment and order of conviction and sentence.

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

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(Cr.A No.703 of 2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 703 OF 2019

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(Arising out of Judgment & Order dated 06.07.2011 passed in Sessions Trial No.160/2010 by the Additional Sessions Judge, Janjgir, District Janjgir Champa, C.G.)

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• Dhansai S/o Late Bandhan Rohidas, aged about 35 years (now aged about 44 years), R/o Auraikala, Police ChowkiNaila, Police Station - Janjgir, District Janjgir-Champa, Chhattisgarh.

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: the Station House Officer, Police Station - Baloda, District Janjgir-Champa, Chhattisgarh.

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... Respondent(s)

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For Appellant	:-	Ms. Meenu Banerjee, Advocate.
For Respondent/State	:-	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

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Judgment on Board (02.02.2024)

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Sanjay K. Agrawal, J.

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This Criminal Appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the impugned judgment of conviction and order of sentence dated

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(Cr.A No.703 of 2019)

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06.07.2011 passed by Additional Sessions Judge, Janjgir, District Janjgir Champa, in Sessions Trial No.160/2010 by which appellant herein has been convicted and sentenced

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in the following manner:-

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Conviction	Sentence
1.u/S. 450/34 of IPC	Rigorous imprisonment for 10 years and to pay fine of 1,000/; ₹ in default of payment of fine additional rigorous imprisonment for 6 months.
2.u/S. 302/34 of IPC	Rigorous imprisonment for life and to pay fine of 1,000/-; in ₹ default of payment of fine additional rigorous imprisonment for 6 months.
3.u/S. 323/34 of IPC	Rigorous imprisonment for 1 year

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All sentences have been directed to run concurrently.

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Case of the prosecution, in nutshell, is that in the intervening night of 21.07.2010 & 22.07.2010 at about 12:30 a.m., the appellant herein along with other two coaccused persons namely - Sonsai and Rajudas, in furtherance of their common intention, entered into the house of Shantibai and caused her death by strangulating and assaulting by axe and stone and further they also caused simple injuries to Budhwara Bai (PW-6), mother of deceased Shantibai, by assaulting her with hands and fists.

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(Cr.A No.703 of 2019)

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Further case of the prosecution is that Shantibai, the deceased, was the wife of the appellant Dhansai and a matrimonial dispute between them was pending before the concerned Court regarding grant of maintenance filed by the deceased and the next date of hearing of the said maintenance case was fixed for 15.7.2010. It is said that on account of the said matrimonial dispute, Shantibai was living in her parental house for the past three years prior to the date of incident. According to the complainant, Budhwar Ram (PW-5), brother of deceased Shantibai, in the intervening night of 21.07.2010 & 22.07.2010 at about 12:30 a.m., when they were all sleeping in their house after having their meal and his sister Shantibai was sleeping in a separate room along with his mother, Budhwara Bai (PW-6), the appellant along with co-accused Sonsai broken open the door of his house and entered into the house and then he saw the appellant Dhansai having caught hold of her sister Shantibai and strangulating and assaulting her with stone on her head and when his mother Bhudhwara Bai (PW-6) was trying to intervene, the appellant and co-accused Sonsai also assaulted her with hands and fists by which she also suffered injuries. The appellant Dhansai and co-accused Sonsai thereafter

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(Cr.A No.703 of 2019)

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dragged Shantibai outside from the house and again assaulted her by axe and stone and she died. The said incident was witnessed by the complainant Budhwar Ram (PW-5), the injured witness Budhwara Bai (PW-6) and Bundkunwar Bai (PW-8) who are brother, mother and step mother of deceased Shantibai respectively. Budhwar Ram (PW-5) also informed about the said incident to Samedas (PW-2), the Village Kotwar.

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Subsequently, in the morning of 22.7.2010, the matter was reported by Budhwar Ram (PW-5) at Police Station pursuant to which Merg Intimation was recorded at 7:35 a.m. vide Ex. P-23 and immediately thereafter the FIR was registered at 7:40 a.m. vide Ex. P/24. Inquest proceeding (Ex.P/6) was conducted and the dead body of deceased Shanti Bai was subjected to postmortem which was conducted by Dr. U.K. Markam (PW-4) vide Ex. P/1 in which the cause of death was opined to be cardiorespiratory arrest because of asphyxia and also due to head injury. Pursuant to memorandum statement of the appellant (Ex.P/9), axe and stone were seized vide Exs. P/12 & P/13. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/28), blood was found on the axe (Ex. 'E') and stone (Ex. 'D') which were

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(Cr.A No.703 of 2019)

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seized pursuant to the memorandum statement of the appellant Dhansai. During the course of investigation, on the basis of the statements recorded of the witnesses who were conversant to the facts of the case and also pursuant to the seizure of slippers found on the spot and which were allegedly being identified to that of the other co-accused Raju Das, he was also implicated in the instant crime.

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After due investigation, the appellant along with the other two co-accused, Sonsai and Raju Das, was charge-sheeted for the aforesaid offences before the concerned jurisdictional criminal court and after committal, the matter was received by Court of Additional Sessions Judge, Janjgir for trial and its disposal in accordance with law, in which the accused persons abjured their guilt, took a plea of false implication and prayed for trial.

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During the course of trial, in order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 29 documents and the defence examined 2 witnesses and exhibited 2 documents. Statements of the accused persons were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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(Cr.A No.703 of 2019)

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After conclusion of the trial, the learned trial Court, by impugned judgment and order dated 6.7.2011, after appreciating the oral and documentary evidence available on record, convicted and sentenced all three accused persons i.e., the appellant Dhansai, Sonsai and Raju Das, for the offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred by appellant Dhansai questioning the impugned judgment and order.

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The two other co-accused persons namely - Sonsai and Raju Das who were convicted by the trial Court for the aforesaid offences along with the present appellant had also filed their respective appeal before this High Court assailing the impugned judgment and order dated 6.7.2011. The appeal of Sonsai was registered as Cr.A. No.595/2011 and the appeal of Raju Das was registered as Cr.A. No.800/2011 which were jointly heard and decided by judgment dated 28.7.2017 whereby the appeal of the co-accused Sonsai was dismissed being devoid of any substance and the appeal of the other co-accused Raju Das was allowed and he was acquitted on the basis of benefit of doubt.

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(Cr.A No.703 of 2019)

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Ms. Meenu Banerjee, learned counsel appearing for appellant Dhansai, submits that he has been falsely implicated in the instant crime and has been convicted by recording a finding which is perverse to the record. She further submits that as per the statement of Budhwar Ram (PW-5) itself it was dark when the alleged incident is said to have taken place and the statements of the alleged eye-witnesses are also inconsistent. Further, she submits that as per the post-mortem report, injuries were caused by axe and if we take into consideration the prosecution case as it is, the injuries are said to have been caused by stone. Furthermore, though in the FSL report, blood was found on the stone (‘D’) and axe (‘E’) alleged to have been recovered pursuant to the memorandum statement of the appellant, but in absence of human blood on the said articles the same cannot be relied upon on the aspect of recovery in the light of the decision of the Supreme Court rendered in the matter of Balwan Singh v. State of Chhattisgarh & Anr. 1 , therefore, the recovery of the said articles would be of no use to the prosecution. As such, the appellant is entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed.

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1 (2019) 7 SCC 781

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(Cr.A No.703 of 2019)

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10. On the other hand, Mr. Ankur Kashyap, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. Learned State counsel further submits that the appeal of the similarly situated co-accused Sonsai, i.e., Cr.A. No.595/ 2011, has already been dismissed by this High Court on 28.7.2017 and against which an SLP was also filed by him before the Supreme Court, being Special Leave Petition (Criminal) Diary No.15056/2021, and the said SLP also been dismissed by the Supreme Court affirming the view taken by the High Court in dismissing the appeal of coaccused Sonsai. As such, the instant appeal also deserves to be dismissed.

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11. We have heard learned counsels for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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12. The first question for consideration is, as to whether the death of deceased Shantibai was homicidal in nature?

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(Cr.A No.703 of 2019)

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13. In this regard, the learned trial Court has recorded an affirmative finding in para-9 of its judgment that the death of Shantibai was homicidal in nature on the basis of the statement of Dr. U.K. Markam (PW-4) who has conducted and proved the postmortem report (Ex.P/1) in which the cause of death was opined to be cardio-respiratory arrest because of asphyxia as well as head injur ies. This, in our opinion, is correct finding of fact based on evidence available on record and 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 Shantibai was homicidal in nature.

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14. Now, the question for consideration would be, whether the appellant has assaulted and caused the death of deceased Shantibai?

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15. Admittedly, the case of the prosecution is based on eyewitness accounts. In the instant case, PW-5 Budhwar Ram, PW-6 Budhwara Bai and PW-8 Bundkunwar Bai, are brother, mother and step mother of deceased Shantibai, who have clearly seen the incident. According to PW-5 Budhwar Ram, who is the complainant and lodged the Merg Intimation (Ex. P/23) and FIR (Exs. P-24 & 24A), the appellant along with co-accused Sonsai had broken open

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(Cr.A No.703 of 2019)

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the door of his house and entered into the house and he saw the appellant Dhansai strangulating the deceased and also assaulting her with stone on her head and when his mother Bhudhwara Bai (PW-6) tried to intervene, the appellant and co-accused Sonsai also assaulted her with hands and fists by which she also suffered injuries and thereafter the appellant Dhansai and co-accused Sonsai dragged the deceased outside the house and again assaulted her by axe and stone and thereafter the deceased Shantibai was found dead. PW-8 Bundkunwar had also seen the incident.

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16. PW-6 Budhwara Bai, mother of deceased Shantibai, who was sleeping with the deceased at the time of incident, has also clearly stated that after breaking open the door of her house, the appellant Dhansai and the co-accused Sonsai entered into the house and Sonsai by pressing the neck of the deceased and Dhansai by pressing her mouth, dragged her outside the house by assaulting her and she (PW-6) raised cries. Then the said accused persons dragged the deceased on the road and assaulted her by axe and stone and she died. Further, according to Budhwara Bai, when she was trying to intervene, the co-accused Sonsai also assaulted her with hands and fists. Her son Budhwar Ram

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(Cr.A No.703 of 2019)

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(PW-5) and Bundkunwar (PW-8) have also seen the said accused persons assaulting the deceased.

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17. Similarly, PW-8 Bundkunwar has also stated that at the time of incident she was sleeping in the other room and the deceased Shantibai was sleeping with his mother, Budhwara Bai (PW-6), in the other room. She heard the cries of Budhwara (PW-6) and ran towards the spot and saw the accused persons assaulting the deceased Shantibai with axe and stone.

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18. Thus, the statements of the eye-witnesses, Budhwar Ram (PW-5), Budhwara Bai (PW-6) and Bundkunwar (PW-8) clearly implicate the appellant in the crime in question stating that at the time of offence, appellant along with coaccused person Sonsai came to the spot and assaulted the deceased by stone and axe on her head by which she suffered grievous injuries, as is also evident from the postmortem report (Ex.P/1) proved by Dr. U.K. Markam (PW4). The said witnesses have been cross-examined at some length but the defence could not extract much from their cross-examination to disbelieve their testimonies. Though there are some minor contradictions in the statements of these witnesses but those minor contradictions cannot be a ground to discredit their testimonies.

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(Cr.A No.703 of 2019)

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19. Further, pursuant to the memorandum statement of the appellant (Ex.P/9), the weapons of offence i.e., stone and axe, have also been seized from his possession vide Ex.P/10 and as per FSL report (Ex.P/28), though no human blood was found, but blood was found on the said stone and axe, and which is also an incriminating circumstance against the appellant.

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20. Furthermore, the motive of offence also stands established from the fact that there was a matrimonial dispute, regarding grant of maintenance filed by the deceased, pending between the appellant and his wife Shantibai, the deceased and the next date of hearing of the said maintenance case was fixed for 15.7.2010 and was said to be at the final hearing stage. This also is an incriminating circumstance against the appellant to implicate him in the offence.

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21. In that view of the matter, in our considered opinion, the trial Court has rightly convicted the appellant for the offences punishable under Sections 450/34, 302/34 & 323/34 of IPC and we do not find any reason to interfere with the impugned judgment and order convicting the appellant for the said offences. Accordingly, we affirm the

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(Cr.A No.703 of 2019)

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impugned judgment and order dated 6.7.2011 passed in Sessions Trial No.160/2010.

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22. In the result, this Criminal Appeal is dismissed .

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

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sharad

Dhansai v. State of Chhattisgarh

Case brief

What is this about?

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Dhansai v. State of Chhattisgarh

Case brief

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