Jawahir Singh Vs State Of Chhattisgarh

¶1

-1-

¶2

(Cr.A. No. 997 of 2017)

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH, BILASPUR CRIMINAL APPEAL NO. 997 OF 2017

¶5

(Arising out of judgment dated 24.12.2014 passed in Sessions Trial No. 121/2013 by the 2^nd Additional Sessions Judge, Surajpur)

¶6

Jawahir Singh S/o Lalsai Gond, Aged About 43 Years R/o Village Sendri, Junapara, Under Police Station Ramanuj Nagar, District Surajpur, Chhattisgarh.

¶7

---- Appellant

¶8

Versus

¶9

State Of Chhattisgarh Through Station House Officer, Police Station Ramanuj Nagar, District Surajpur, Chhattisgarh.

¶10

---- Respondent

¶11

For Appellant :-	Mr.A.N. Pandey, Advocate and Mr.
	Sudhir Kumar Bajpai, Advocate /
	Panel Lawyer appointed by C.G.High
	Court Legal Services Committee.
For Respondent :-	Mr. Arvind Kumar Dubey, G.A .

¶12

(Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (04.03.2024)

¶13

Sanjay K. Agrawal, J.

¶14

1 . This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 24.12.2014 passed in Sessions Trial No. 121/2013 by the 2^nd Additional Sessions Judge, Surajpur, District- Surjpur (C.G.) by

¶15

-2-

¶16

(Cr.A. No. 997 of 2017)

¶17

which, the appellant herein has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.200/- and in default of payment of fine, to undergo additional simple imprisonment for six months.

¶18

2 . Case of the prosecution, in brief, is that on 24.01.2013 at about 8:00 p.m., in village Sanderi, Junapara, under Police Station: Ramanujnagar, District:Surajpur, appellant herein assaulted his wife-Mankunwar (now deceased) by hand & fist and also by wooden stick, by which, she suffered grievous injuries on chest, head, face and back portion of the body and died, thereby committed the aforesaid offence.

¶19

3 . Further case of the prosecution is that, on date of incident i.e. 24-01-2013, at about 8 p.m., when the appellant-Jawahir Singh returned back to his home from village-Bahalpur, he saw that the door of his house were opened at night and his wife-Mankunwar was sleeping inside the house. Thereafter, the appellant started quarreling with his wife as to why she was sleeping without closing door of the house and started beating her by hand & fist on her face, chest, back side of her body. By fear from her husband, she ran away from the house, but the appellant again assaulted her on face,

¶20

-3-

¶21

(Cr.A. No. 997 of 2017)

¶22

chest, leg and back side of her body by wooden stick. Thereafter, he slept with his wife at night. Next morning at about 4 a.m., when the appellant tried to wake up his wife, she was lying died and blood was oozing out from her nose. Thereafter, by fear, the appellant herein threw the stick and ran away to village Sagarkhurd in his brother’s house-Jhulan Singh. Next day, he came back to his village Sendri and informed the neighbor that he killed his wife-Mankunwar. On the basis of information, the police registered merg intimation vide Ex.P-01 and spot map/crime details form was prepared vide Ex.P-05. Thereafter, FIR was registered against the present appellant at Police Station:Ramanujnagar, District:Surjpur (C.G.) in Crime No.11/13 for the offence under Section 302 of the Indian Penal Code. Inquest proceedings (Ex.P/02) was conducted and the dead body of deceased was sent for postmortem. As per postmortem report (Ex.P/08), proved by Dr. R.S. Singh (PW-11), cause of death was shock due to abdomen (spleen) hemorrhage and the nature of death was homicidal. Seizure of articles (Exs.P/06 & 07) were made and sent for chemical examination to FSL, but FSL report has not been brought on record for the reasons

¶23

-4-

¶24

(Cr.A. No. 997 of 2017)

¶25

best known to the prosecution. After completing the investigation, the final report was prepared.

¶26

4 . After completion of the investigation, the appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant/ accused person abjured his guilt and entered into defence.

¶27

5 . During the course of trial, in order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 16 documents. Statement of the appellant under Section 313 of Cr.P.C. was recorded wherein he denied guilt, however, he has not examined any witness nor exhibited any document.

¶28

6 . After conclusion of the trial, the trial Court, by impugned judgment dated 24.12.2014, on appreciation of oral and documentary evidence available on record, convicted the appellant 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.

¶29

7 . Learned counsel for the appellant submits that the case of the prosecution is based on the extra judicial

¶30

-5-

¶31

(Cr.A. No. 997 of 2017)

¶32

confession made by the appellant before Sonsai(PW-4), Sukhdayal (PW-05) and Raisingh Gond (PW-07). While Sonsai (PW-04) and Sukhdayal (PW-05) have made different statements in their cross-examination by the prosecution and the defence, Raising Gond (PW-07) has stated in examination-in-chief that the deceased had not made any extra-judicial confession in his presence but the statement was made to the Police. It is further submits that the appellant has been granted bail by this Hon’ble Court order dated 08-02-2018. Moreover, since the injuries sustained by the deceased were not on the vital part of the body and the injuries were sustained on the leg, chest and back portion of the body of the deceased, the injuries caused by the appellant were not sufficient to cause death in the ordinary course of nature and therefore, the case of the appellant would not fall under Section 300-Thirdly of IPC but it would fall under Section 304 Part-I or Part-II of IPC, 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 appellant under Section 302 of IPC be converted to Section 304 Part-II of IPC.

¶33

8 . Learned State counsel would submit that prosecution has been able to bring home the offence beyond

¶34

1 (2016) 3 SCC 317

¶35

-6-

¶36

(Cr.A. No. 997 of 2017)

¶37

reasonable doubt and the trial Court has rightly convicted the appellant herein for the offence punishable under Section 302 of IPC and it is not a case where the conviction of the appellant can be converted and the appeal, therefore, deserves to be dismissed.

¶38

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

¶39

10. The first question, as to whether the death of deceasedMankunwar was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. R.S. Singh (PW-11) who has conducted and proved the postmortem report (Ex.P-08) in which the cause of death of deceased-Mankunwar has been opined to be shock due to abdomen (spleen) hemorrhage and the nature of death has been stated to be homicidal, which, in our considered opinion, is 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 of the trial Court holding that the death of Mankunwar(deceased) was homicidal in nature.

¶40

-7-

¶41

(Cr.A. No. 997 of 2017)

¶42

11. Now, the next question is as to whether the appellant has assaulted the deceased?

¶43

12. Since appellant and deceased were in the same house on the date and time of offence and dead body of Mankunwar (deceased) was found in the house of the appellant, which he has not explained in his statement made under Section 313 of Cr.P.C., therefore, by invoking Section 106 of the Evidence Act, convicted the appellant under Section 302 of the IPC and furthermore the appellant has given extra judicial confession to the Mahesh (PW-14), in which, when he went to the house of the appellant to give invitation, then the appellant said to him that his wife-Mankunwar(deceased) lying dead and was not waking up. Moreover, on the basis of memorandum statement of the appellant, weapon i.e. wooden stick has been seized vide Ex.P-7. As such, the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased is based on evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant-accused is the author of the crime in question.

¶44

13. It is the contention on behalf of the appellant that the injuries which was noticed by Dr. R.S. Singh (PW-11) on

¶45

-8-

¶46

(Cr.A. No. 997 of 2017)

¶47

the leg, chest and back portion of the body of the deceased were not sufficient to cause death of the deceased. As per statement of Dr. R.S. Singh (PW-11) cause of death was shock due to abdomen (spleen) hemorrhage and excessive bleeding, therefore, the case would not fall under Section 300 Thirdly of the IPC and it would fall under Section 304 Part-II of the IPC.

¶48

14. The Supreme Court in the matter of Nankaunoo (supra),

¶49

in paragraph 12 & 13, has held as under :

¶50

"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.

¶51

13. 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,

¶52

-9-

¶53

(Cr.A. No. 997 of 2017)

¶54

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 IPC should be under Section 304 Part-1 of IPC.

¶55

15. Reverting to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matter of Nankaunoo (supra), it is quite vivid that as per the postmortem report (Ex.P-08) conducted by Dr. R.S. Singh (PW-11),

¶56

-10-

¶57

(Cr.A. No. 997 of 2017)

¶58

according to him, the death of Mankunwar(deceased) was on account of rapture of spleen and fracture of ribs. However, it has not been stated by the Dr. R.S. Singh (PW-11) that the injuries suffered by the deceased were ordinary course of nature to cause death of Mankunwar(deceased). As such, considering the situs and nature of injuries and in absence of evidence elicited from the doctor that the sustained injuries was sufficient in the ordinary course of nature to cause death, we are of the considered view that it is a fit case where the conviction of the appellant under Section 302 of the IPC should be under Section 304 Part-II of the IPC and the prosecution has failed to establish that the nature of injuries suffered by Mankunwar(deceased) were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC.

¶59

16. Accordingly, the conviction and sentence of the appellant for the offence punishable under Section 302 of IPC is set aside/quashed and his conviction is hereby altered to Section 304 Part-II of IPC and he is sentenced to R.I. for 5 years, which he has already undergone as the appellant remained in jail from 28-01-2013 to 08-02-2018 i.e. 5 years and 11 days, however, the fine amount imposed by the learned trial Court shall remain

¶60

-11-

¶61

(Cr.A. No. 997 of 2017)

¶62

intact. The appellant is already on bail, he need not surrender. However, his bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C.

¶63

17. In the result, this criminal appeal is partly allowed to the extent indicated herein-above.

¶64

18. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court and the concerned Superintendent of Jail be also supplied with the certified copy of this judgment for information and necessary action, if any, at the earliest.

¶65

SD/SD/-

¶66

(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

¶67

Amardeep

Jawahir Singh v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jawahir Singh v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ajaj Khan Vs State Of Chhattisgarh

Gopi Kishan @ Gopi Vs State Of Chhattisgarh

Anil Kumar Sahu Vs State Of Chhattisgarh

Fulchand Markam Vs State Of Chhattisgarh

Amrit Jangade Vs State Of Chhattisgarh

Budhram Minj Vs State Of Chhattisgarh