Partly allowed

Kariman v. State Of Chhattisgarh

Chhattisgarh HC20 Feb 2024CRA/724/2017

Case brief

AI extract

What is this about?

Chhattisgarh High Court allowed in part a criminal appeal. The Court set aside the conviction for murder (Section 302 IPC) and altered it to culpable homicide (Section 304 Part-I IPC), reducing the sentence to 10 years rigorous imprisonment, relying on the post-mortem finding that the injury was not sufficient to cause death.

What did the court decide?

Conviction for murder under Section 302 IPC set aside and altered to Section 304 Part-I IPC; sentence reduced to 10 years rigorous imprisonment; fine maintained.

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

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CRA No. 724 of 2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 724 of 2017

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(Arising out of judgment dated 28.12.2016 passed in Sessions Trial No.113/2015 by the 5^th Additional Sessions Judge, Ambikapur, District Surguja, C.G.)

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Kariman S/o Kalam Sai Manjhwar, aged about 35 years, R/o Pampapur, Amera, Police Station Darima, District Surguja, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Office, Police Station Darima, District Surguja, Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Aditya Khare, Advocate/Panel Lawyer appointed by High Court Legal Services Committee. For State/Respondent :- Mr. Shaleen Singh Baghel, Deputy Government Advocate.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (21.02.2024)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the

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CRA No. 724 of 2017

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impugned judgment of conviction and order of sentence dated 28.12.2016 passed by the 5^th Additional Sessions Judge, Ambikapur, District Surguja, Chhattisgarh in Sessions Trial No. 113/2015 by which appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of 200/-; in default of payment of fine additional₹ simple imprisonment for 2 months.

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Case of the prosecution in, nutshell, is that between 18.07.2015 to 23.07.2015, appellant assaulted his wife Etwari Bai (not legally married) (now deceased) by stone by which she (deceased) suffered grievous injuries and died and thereby committed the aforesaid offence. It is further case of the prosecution that on 23.07.2015 Dharmendra Singh (PW-15) and Satish Kumar Sonwani (PW-21) had seen the dead body of the deceased at village Kumharta, Pandopara, Bihidand forest, and informed the police. Dead body of the deceased was identified to be of Etwari Bai by Ramprasad (PW-8), step son of the deceased, and Laxan Ram (PW-14). Merg intimation (information of sudden and unnatural death) and FIR were registered vide Exs.P/15 & P/24. Nazari naksha was prepared vide Ex.P/6. Inquest proceedings (Ex.P/2) were conducted and the dead body of

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CRA No. 724 of 2017

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the deceased was sent for postmortem. As per postmortem report (Ex.P/13) proved by Dr. Janeshwar Singh (PW-11) the dead body was in decomposed condition; cause of death was due to fracture of right lower jaw and homicidal in nature. Memorandum statement of the appellant was recorded vide Ex.P/3. Articles were seized and sent for chemical analysis to FSL, but FSL report has not been brought on record for the reasons best known to the prosecution.

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After due investigation, appellant herein was chargesheeted 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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In order to bring home the offence, prosecution has examined as many as 23 witnesses and exhibited 28 documents and defence in support of its case has not examined any witness, but exhibited 1 document. 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

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CRA No. 724 of 2017

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brought on record by the prosecution, 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 / 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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Mr. Aditya Khare, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that the deceased was died on account of one injury i.e. fracture of right lower jaw, but Dr. Janeshwar Singh (PW11) who conducted the postmortem, has nowhere stated that the said injury is sufficient to cause death, even otherwise he (PW-11) has stated that with the said injury, injured person can alive for a long time and to buttress his submission he relied upon the decision rendered by their Lordships of the Supreme Court in the matter of

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CRA No. 724 of 2017

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Nankaunoo v. State of Uttar Pradesh1 . He further

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submits that taking the case of the prosecution as it is, at best, the conviction for offence under Section 304 Part I or Part II would be made out and the appellant is in jail since 11.08.2015, more than 8 years 6 months, and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be allowed in full or in part.

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On the other hand, Mr. Shaleen Singh Baghel, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-I or Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, 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 gone through the records with utmost circumspection.

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1 (2016) 3 SCC 317

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CRA No. 724 of 2017

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard, the learned trial Court has recorded the finding in affirmative that the death of Etwari Bai (deceased) was homicidal in nature on the basis of postmortem report (Ex.P/13) proved by Dr. Janeshwar Singh (PW-11), which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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Considering the circumstances pointed out by the trial Court in paragraph 36 of its judgment that the appellant and the deceased were living together and deceased obtained ₹ 26,000/- for construction of house under the scheme of Indira Awas, from which she had given ₹ 24,000/- to her step son Ramprasad (PW-8) on account of which quarrel took place between the appellant and the deceased and out of anger, the appellant is said to have assaulted the deceased by stone on her right lower jaw by

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CRA No. 724 of 2017

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which she suffered grievous injuries and died, the trial Court has rightly held that it is the appellant who caused the death of the deceased, which is the finding of fact based on evidence available on record and, as such, we hereby affirm the said finding recorded by the trial Court.

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It is the contention on behalf of the appellant that the injury caused by the appellant on the right lower jaw of the deceased is not sufficient to cause her death, therefore, the case of the appellant would not fall under Section 300 Thirdly of the IPC and it would fall under Section 304 PartI of the IPC.

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Now, the question is whether the appellant’s case deserves to be converted under Section 304 Part-I of I.P.C. as contended by the learned counsel for the appellant ?

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A careful perusal of the statement of the Dr. Janeshwar Singh (PW-1) who has proved the postmortem report (Ex.P/13) would show that the injury caused by the appellant on the right lower jaw of the deceased was not sufficient to cause death and with the said injury, injured person can alive for a long time or 2 to 5 years and, even otherwise, he did not state that the said injury was

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CRA No. 724 of 2017

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sufficient to cause death in the ordinary course of nature in order to attract clause Thirdly of Section 300 of I.P.C.

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

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CRA No. 724 of 2017

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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 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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Returning 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 afore-stated judgments, it is quite vivid from the statement of Dr. Janeshwar Singh (PW-11), who conducted the postmortem, death occurred on account of fracture of the right lower jaw and he (PW-11) also stated that, even after the said injury, injured person can alive for 2 to 5 years and further keeping in view the situs and nature of injury and in absence of evidence elicited from the doctor that the injuries were sufficient in the ordinary course of nature to cause death, we are of the considered view that it is fit case where the conviction of

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the appellant under Section 302 of the IPC should be converted / altered under Section 304 Part-I of the IPC.

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CRA No. 724 of 2017

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Accordingly, the conviction and sentence of the appellant herein for the offence punishable under Section 302 of IPC is set-aside/quashed and his conviction is hereby altered to Section 304 Part-I of IPC and he is sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount with stipulations imposed by the learned trial Court is hereby maintained.

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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 supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

Kariman v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kariman v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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