Baliram Gadriya Vs State Of Chhattisgarh

27.04.2017, passed by the Additional Sessions Judge, Mungeli, in Sessions Trial No.13/2016, by which, the six appellants herein have been convicted for the offence under Sections 148, 323 read with Section 149, 325 read with Section 149 and 302 read with Section 149 of Indian Penal Code and sentenced as under with a direction to run all the sentences concurrently :

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CONVICTION		SENTENCE
U/s. 148 of I.P.C.	:	Rigorous imprisonment for 1 year and fine of Rs.100/-, in default of payment of fine, 10 days additional rigorous imprisonment.
U/s. 323/149 of I.P.C.	:	Rigorous imprisonment for 3 months
U/s. 325/149 of I.P.C.	:	Rigorous imprisonment for 3 years and fine of Rs.100/-, in default of payment of fine, 15 days additional rigorous imprisonment.
U/s. 302/149 of I.P.C.		Life imprisonment and fine of Rs.500/-, in default of payment of fine, 3 months’ additional rigorous imprison- ment.

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2. Case of the prosecution, in brief, is that on 17.11.2015 at about 7:00 to 8:00 A.M. in front of house of Dhaneshwari Bai, the appellants herein in furtherance of their common intention assaulted Manharan (now deceased), Ludgu (PW-1), Mangal Yadav (PW-2), Mantora

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Bai (PW-3), Dhaneshwari Bai (PW-5), Chhotu Gadariya (PW-6) and Sukhchain Sapre (PW-8) by sharp edged weapon as well as by hard & blunt object, by which, deceased Manharan suffered grievous injuries and died and Ludgu (PW-1), Mangal Yadav (PW-2), Mantora Bai (PW-3), Dhaneshwari Bai (PW-5) and Chhotu Gadariya (PW-6) also suffered grievous injuries, which were sufficient to cause death. Thereafter, the matter was reported to the police by Dhaneshwari Bai (PW-5) and the injured persons were taken to the hospital and deceased Manharan was referred to CIMS hospital, Bilaspur from where he died during treatment on 27.11.2015 after 10 days to the incident, pursuant to which, merg intimation was recorded vide Ex.P-30 & Ex.P-42, FIR was registered vide Ex.P-5, inquest was conducted vide Ex.P-19 and dead body of deceased Manharan was subjected to post-mortem, which was conducted by Dr. Ravindra Bagde (PW-20), who proved the post-mortem report vide Ex.P-48, in which cause of death was on account of injuries suffered on non-vital part of the body. Pursuant to memorandum statement of appellant No.1, axe was recovered and pursuant to memorandum statements of appellants No.2 to 6, bamboo sticks were recovered, which were sent for

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chemical examination to FSL but there is no FSL report on record. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 22 witnesses and exhibited 49 documents and the appellants-accused in support of their defence have not examined any witness but have exhibited the documents Ex.D-1 to Ex.D-5.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants herein for the offence under Sections 148, 323/149, 325/149 and 302/149 of Indian Penal Code and sentenced them as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.

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5. Mr. Rajesh Jain, learned counsel for the appellants would submit that as per the post-mortem report, the injuries suffered by the deceased were non-vital part of

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the body and in the right knee and head there was abrasion and swelling also and, as such, most of the injures were simple in nature, which were not sufficient in ordinary course of nature to cause death, therefore, clause Thirdly of Section 300 of I.P.C. would not attract and in that view of the matter, at the most, the offence under Section 304 Part-II of I.P.C. is made out in view of the decision of the Supreme Court in the matter of Nankaunoo v. State of Uttar Pradesh 1. Therefore, the conviction of the appellants under Section 302/149 of I.P.C. be altered to Section 304 Part-II of I.P.C. and the appellants be sentenced for the period already undergone, as they are in jail since 29.11.2015 and the appeal be allowed in part.

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6. Mr. Ankur Kashyap, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the offence under Sections 148, 323/149, 325/149 and 302/149 of Indian Penal Code and, as such, the appeal deserves to be dismissed.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above

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1 (2016) 3 SCC 317

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and went through the records with utmost circumspection.

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8. The first question for consideration as to whether the death of deceased Manharan was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-48 proved by Dr. Ravindra Bagde (PW-20), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question is, whether the appellants had caused death of deceased Manharan and also caused grievous injuries to the victims ?

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10. Considering the statement of Ludgu (PW-1), Mangal Yadav (PW-2), Mantora Bai (PW-3), Dhaneshwari Bai (PW-5), Chhotu Gadriya (PW-6) and Sukhchain Sapre (PW-8), who are the eye-witnesses and closed relatives of the appellants and deceased, we are of the considered opinion that the finding recorded by the trial Court that appellants had caused the death of deceased Manharan and also caused grievous injuries to Ludgu (PW-1) and simple injuries Mantora Bai (PW-3), Dhaneshwari Bai (PW-5) and Chhotu Gadariya (PW-6) is correct finding of

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fact based on evidence available on record and accordingly, we affirm the said finding.

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11. The next contention is, whether the appellants’ case, considering the nature of injuries, would fall under Section 304 Part-II of I.P.C., as simple injuries have been noticed by Dr. Ravindra Bagde (PW-20) in the postmortem report Ex.P-48. In this regard, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Nankaunoo v. State of Uttar Pradesh 2, in which their Lordships in paragraph 12 & 13 held as under :

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12. The emphasis in clause three of Section 300 I.P.C 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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13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound

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2 (2016) 3 SCC 317

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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 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 I.P.C should be under Section 304 Part 1 I.P.C.

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12. At this stage, it would be appropriate to notice the statement of Dr. Ravishankar Prasad Dewangan (PW-11)

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first, who had conducted MLC of deceased Manharan and thereafter, the statement of Dr. Ravindra Bagde (PW-20), who had conducted the post-mortem of deceased and reported the injuries over the body of deceased :

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Statement of Dr. Ravishankar Prasad Dewangan (PW-11)

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“1. eSa ftyk vLirky eqaxsyh esa fnukad 17@11@2015 dks inLFk jgk bl nkSjku vkj{kd r:.k ;kno dz0 57 flVh dksrokyh eqaxsyh ds }kjk vkgr eugj.k Mgfj;k firk yqMxq Mgfj;k mez 40 xzke nsojh laxok dks eqykfgtk gsrq esjs le{k yk;k x;kA ftldh tkap djus ij eSaus pksV dz0 1& ,czstu [kjksp ,oa Losfeax ,oa nk,a ?kqVus ij [kwu tesa gq, FksA ftldk vkdkj 1 xq.kk 1 lseh FkkA ftl ij vLFkh Hkax gksus dh laHkkouk FkhA pksV dz0 2& cka, gkFk ds vxzHkqtk ij [kjksp ,oa lwtu ik;k Fkk ftl ij CyM tek FkkA ftldk vkdkj 5 xq.kk 4 lseh FkkA pksV dz0 3& NksVk maxyh ij [kjksp ik;k x;kA pksV dz0 4& cka, ?kqVus ij lwtu ik;k x;kA pksd dz0 5 nka;k vaxwBk ij QVk gqvk ?kko ftldk 1 xq.kk 0-5 xq.kk 0-5 ftl ij [kwu tek pksV dz0 6 e/; vaxqyh ij ,oa rtZuh maxyw cka, lkbM ds gkFk ij pksaV ik;k x;k ftldk 2 xq.kk 0-5 xq.kk 0-5 Fkk ftl ij [kwu tek gqvk FkkA pksV dz- 7 nk, vxz Hkqtk ds ihNs esa QVk gqvk ?kko ftldk vkdkj 1 xq.kk 0-5 xq.kk 0-5 ftl ij [kwu tek gqvk FkkA ejht dg jgk Fkk fd mDr lHkh pksaVks ij nnZ gks jgk FkkA tkap ds le; ejh gks”k esa Fkk A rFkk mldk iYl 82 ,oa chih 76 Vwfyd FkkA’’

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“2. vfHker & esjs erkuqlkj pksaV dz- 1] 2] 3 dMs ,oa [kqjnjs vkStkj ls igqpkbZ xbZ Fkh A pksaV dz0 4] 5] 6] 7 dMs ,oa HkksFkys vkStkj ls igqapkbZ xbZ FkhA eSusa ejht dks izkFkfed mipkj ds ckn ftl vLirky fjQj dj vkxs bykt gsrq ftyk

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vLirky fcykliqj gsrq funsZf”kr fd;kA eSaus ejht ds nk,a ,oa ck,a ?kqVus o nka, vxzHkqtk dks ,Dljs djkus ds fy, funsZf”kr fd;kA esjh eqykfgtk fjiksVZ tks izn”kZ 21 gS] ftlds v ls v Hkkx ij esjs gLrk{kj gSA ’’

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Statement of Dr. Ravindra Bagde (PW-11)

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“3. eSausa 12-15 cts “ko ijh{k.k vkjaHk fd;k FkkA “ko fpRr gkyr esa iksLVekVZe Vscy ij j[kk gqvk Fkk] tks gjsa jax ds lky ls <dk gqvk FkkA ijh{k.k djus ij nka;s ,oa cka;s gkFk ds mij IykLVj Fkk] nka;k iSj esa Hkh IykLVj FkkA nk;s gkaFk esa NksVs&NksVs pksV ds fu”kku Fks] tks 3 xq.kk -5 ls-eh- Fkk] nka;s gkFk ds dykbZ ds mij QSDpj Fkk] ftlesa nks Vkads yxs gq, FksA nak;k gkFk ds yksoj ou FkMZ esa IykLVj yxk gqvk ik;k x;k Fkk] nka;s iSj ds tka?k ls ,M+h ds chp esa IykLVj ik;k x;k FkkA

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nk;s Åij esa jsfM;e ,oa vyuk ou FkMZ esa QSDpj fn[k jgk Fkk] cka;s uhps tkap esa fVfc;k ,oa nqcyk gM~Mh ou FkMZ esa QSDpj fn[k jgk Fkk ftlesa nks Vkads yxs FksA [kksiM+h] diky] d”ks:dk] czsu esa lwtu] flYyh esa lwtu ,oa [kwu tek gqvk] inkZ] ilyh] dkseyl] QqQql esa ikuh Hkjk gqvk FkkA daB ,oa Lokal uyh dUtLVsM Fks] nkfguk ,oa cka;k QsQM+k esa ikuh Hkjk gqvk FkkA fgnZ; esa jkbZV psEcj esa [kwu Fkk vkSj cka;k psEcj [kkyh Fkk] ogn okfgdk lkekU; Fkk] vkarksa dh f>Yyh] eqag rFkk xzkl uyh lkekU; FksA isV ,oa mlds vanj dh oLrq,a ihyk jax dk ikuh Hkjk gqvk Fkk tks yxHkx Ms< lkS ls nks lkS ,e,y dkA NksVh ,oa cM+h vkar ,oa vanj dh oLrq,a ey vkSj xSl ls Hkjk gqvk FkkA

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fyoj lkekU;] Iyhgk ukeZy] xqnkZ c<+k gqvk Fkk] eq=k”k; [kkyh Fkk] vkarfjd ,oa ckgjh tuusUnzh;k ukeZy FkkA isf”k;ka ,oa vfLFk;ka tks nka;s gkFk ds ou FkMZ esa QSDpj Fkk] cka;s gkaFk dh dykbZ ds mij QSDpj Fkk] nk;s iSj ds e/; Hkkx fVfCk;k ,oa Q~;wcyk esa QSDpj ik;k x;kA nk;s gkaFk dh dykbZ esqa cgqr ls

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NksVs&NksVs pksV ds fu”kku Fks ftudk vkdkj 3 xq.kk -5 ls-ehFkk] ftlds mij pksV Hkjus yxs FksA esjs }kjk e`rd ds dqN vax lqjf{kr j[ks x;s Fks ftlesa fyoj dk VqdM+k] fdMuh dk VqdM+k] Iyhgk dk VqdM+k FkkA mDr vaxksa dks lhycan djds mlh vkj{kd dks ghLVksiSFkksyftdy ds fy, lkSai fn;k FkkA”

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vfHker& esjs erkuqlkj erd dh eR;q “kjhj esa ik;s x;s QSDpj ,oa mij crk;s x;s pksV dz- 1] 2] 3 ds dkj.k rFkk fyoj] fdMuh ,oa xqnkZ lkbZt ls cM+s ik;s x;s Fks rFkk fnekx ,oa QsQM+ksa esa lwtu] nksuksa rjQ dh Nkrh esa ikuh Hkjk gqvk Fkk ftlds dkj.k eq>s mijksDr vaxksa dks fiztoZ dj iSFksfgLVksykftdy fjiksVZ gsrq lajf{kr fd;k x;k Fkk vkSj vafre vfHker mijksDr fjiksVZ ds fy, lqjf{kr j[kk x;k FkkA esjh iksLVekVZe fjiksVZ izn”kZ ih0&48 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA”

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13. Reverting to the facts of the case in light of the decision of the Supreme Court and in the opinion of Dr. Ravishankar Prasad Dewangan (PW-11) and Dr. Ravindra Bagde (PW-20), it is quite vivid that the injuries suffered by deceased were on non-vital part of the body and deceased died on 27.11.2017 after 10 days and according to Dr. Ravindra Bagde (PW-20), who has conducted the post-mortem, deceased died on account of fracture and on account of injury No.1, 2 & 3. Having regard to the facts of the case and keeping in view the situs and nature of injury on non-vital part of the body in absence of evidence given by the doctor that the said injuries were sufficient to cause death, in ordinary

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course of nature, we are of the view that it is a fit case where the conviction of the appellants under Section 302 of I.P.C. should be under Section 304 Part-II of I.P.C.

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14. In the result, the conviction of the appellants under Section 302/149 of I.P.C. is modified as conviction under Section 304 Part-II of I.P.C. and the appellants are sentenced to undergo 8 years’ rigorous imprisonment. However, the conviction and sentence for the offence under Sections 148, 323/149, 325/149 of I.P.C. including the fine sentence are maintained.

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15. In the result, the appeal is partly allowed.

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16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.

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

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Ashok

Baliram Gadriya v. State Of Chhattisgarh

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Baliram Gadriya v. State Of Chhattisgarh

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