Sukhna Pahadi Korwa Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 911 of 2017

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(Arising out of judgment dated 16.02.2017 passed in Sessions Trial No. R 17/2016 by the Court of Additional Sessions Judge, Ramanujganj of 2^nd Additional Sessions Judge, Ramanujganj, district Surguja, CG)

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Sukhna Pahadi Korwa S/o Chamru, Aged About 30 Years, R/o Village Lohradand, Police Station Shankergarh, District Balrampur - Ramanujganj, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Rajpur, District BalrampurRamanujganj, Chhattisgarh.

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---Respondent

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For Appellant : Mr. Anil Gulati, Advocate For Respondent : Mr. Rahul Tamaskar, Govt. 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

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(12.02.202 4)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under

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Section 374(2) of Cr.P.C. is directed against the

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impugned judgment dated 16.02.2017, passed by the Court of Additional Sessions Judge, Ramanujganj of 2^nd Additional Sessions Judge, Ramanujganj, district Surguja, CG , in Sessions Trial No. R 17/2016, by which, the appellant herein has been convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.5,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for one year.

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2. The case of the prosecution, in brief, is that on 14.01.2016 at about 9 a.m. in village - Khatangpara, Police Station - Rajpur, District BalrampurRamanujganj, the appellant herein, pressed by his foot on the private part and thigh of a two months baby Ku. Sunita while she was sleeping in the courtyard, as a result of which, she suffered grievous injuries and died. The matter was reported to the Police, pursuant to which Merg intimation (Ex. P-1) was recorded and FIR (Ex. P-2) was registered. Inquest proceedings were conducted vide Ex. P-16 and the dead body of deceased was subjected to postmortem. As per postmortem report (Ex.P/10),

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proved by Shashikala Toppo (PW-9), cause of death was shock due to excessive bleeding due to rupture of internal vital organ (spleen) and death was homicidal in nature.

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3. After completion of investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. 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 appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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4. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 18 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

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5. 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

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which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Anil Gulati, learned counsel for the appellant, would submit that the injuries suffered by the deceased, as per the statement of Dr. Shashikala Toppo (PW-9) who proved the post-mortem report Ex.P-10, were not sufficient to cause death in the ordinary course of nature and therefore, the case of the appellant would not fall under Section 300Thirdly of I.P.C., but it would fall under Section 304 Part-I of I.P.C. in view of the decision of the Supreme Court in the matter of Nankaunoo v. State of Uttar

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Pradesh 1. He would further submit that if the entire case of the prosecution is taken as it is, at best, the offence under Section 304 Part-II would be made out as there was no intention on the part of the appellant to cause death and, therefore, the conviction of appellant under Section 302 of I.P.C. may be altered/converted to Section 304 Part-II of I.P.C. and the sentence imposed upon him be reduced to the period

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1 (2016) 3 SCC 317

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already undergone by him, as he is in jail since 19.01.2016 i.e. more than 8 years.

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7. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and considering the nature of offence where the appellant has committed murder of a two months baby assaulting her by his leg, the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. He further submits that, it is not a case wherein the offence can be converted to Section 304 Part-II of I.P.C. and, as such, the 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 went through the records with utmost circumspection.

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9. The first question for consideration is as to whether the death of deceased Ku. Sunita was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the post-mortem report Ex. P-10 proved by Shashikala Toppo (PW-9), according to

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which, cause of death has been stated to be shock due to excessive bleeding due to rupture of internal vital organ (spleen) and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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10. Now the question for consideration is as to whether the appellant has assaulted the deceased?

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11. The conviction of the appellant is based solely on the statement of Smt. Satni Bai (PW-1) - the mother of the deceased who had seen the appellant assaulting her

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two months old daughter by leg. As per the Postmortem report (Ex.P-10) proved by Dr. Shashikala Toppo (PW-9), the deceased suffered four injuries i.e. (i) Reddish colour contusion in inner side right thigh, (ii) reddish colour contusion in whole private part, (iii) reddish colour contusion in the medial thigh and (iv) reddish and blue colour contusion on waist and both buttock region. As per the opinion of Dr. Shashikala Toppo (PW-9), deceased Sunita died on account of excessive bleeding leading to Coma and shock. Thus, the trial Court, in our

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considered opinion, has rightly recorded the finding that it is the appellant who assaulted Ku. Sunita (deceased) by leg due to which she suffered injuries and died. However, the doctor has not opined that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature to attract Section 300-thirdly of IPC.

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12. The contention of learned counsel for the appellant is that the case of appellant would not fall under Section 300-Thirdly of I.P.C., but it would fall under Section 304 Part-I of I.P.C. in light of the decision of the Supreme Court in the matter of Nankaunoo (supra), in which their Lordships in paragraph 12 & 13 held as under :

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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

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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 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

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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 1 IPC.

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13. Following the principles of law laid down in the matter of Nankaunoo (supra), it is quite vivid that particularly the prosecution has not extracted from Dr. Shashikala Toppo (PW-9) that the four contusions inflicted by the appellant on the body of the deceased were sufficient in the ordinary course of nature to cause death. Keeping in view the situs and nature of injury, in absence of evidence given by the doctor that the said four contusions were sufficient to cause death, we are of the considered opinion that the principles of law laid down in Nankaunoo (supra) will apply to the facts of the present case.

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14. Reverting to the facts of the present case, it is quite vivid that there was no premeditation on the part of the appellant to cause death of the deceased. From the statement of sole eye witness Satni Bai (PW-1) who is the mother of the deceased, it is quite clear that on the date of offence Satni Bai (PW-1) had gone

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to the house her Badepapa where the appellant was also present. At the time of offence, the deceased was sleeping in the courtyard and the appellant came there and pressed by his leg on the stomach and private part of the deceased, due to which, she suffered injuries and died. Considering the nature of injuries occurred on the body of the deceased, it is quite vivid that there was no intention on the part of the appellant to cause death, but the appellant must have had knowledge that the injury caused by him is likely to cause death and further considering the fact that the prosecution has failed to establish that the injuries suffered by deceased Ku. Sunita were sufficient to cause death in the ordinary course of nature, we are of the considered view that it is a fit case where the conviction of the appellant under Section 302 of IPC can be converted/altered under Section 304 Part-II of the IPC.

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15. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of the IPC and the appellant is sentenced to the period already undergone, as he is in jail since 19.01.2016 i.e. more

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than 8 years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellant be released from jail forthwith, if not required in any other matter.

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16. In the result, this criminal appeal i s 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 forthwith to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, 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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Khatai

Sukhna Pahadi Korwa v. State Of Chhattisgarh

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Sukhna Pahadi Korwa v. State Of Chhattisgarh

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