Bhuwan Tandon Vs State of Chhattisgarh

1 . The appellant Bhuwan Tandon (A-1) and the appellant Kamta Prasad Tandon (A-2) both have preferred this appeal under Section 374(2) of the CrPC, calling in question the validity, legality and correctness of the impugned judgment

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dated 23.06.2018, passed by learned Additional Sessions Judge, Bemetara, District - Bemetara (C.G.) in Sessions Trial No. 73/2016, whereby appellant Bhuwan Tandon (A1) has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.100/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for three months; and appellant Kamta Prasad Tandon (A-2) has been convicted for offence under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 100/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for three months.

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2 . The case of the prosecution, in short, is that on 03.05.2016 at about 3:00 am, in Village - Navalpur, Police Station – Bemetara, the appellant (A-1) assaulted his wife Sushma Tandon (now deceased) by hands and fists and caused the injuries on private part, due to which Sushma Tandon (deceased) died. Further, in furtherance of their common intention to screen from punishment the appellant (A-2) lodged a false report before the police, thereby committing the offences under Sections 302 and 201 of IPC.

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3 . Further, the case of the prosecution, in a nutshell, is that on 03.05.2016 at 5.10 am, Government Hospital Bemetara

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sent written information vide Ex.P-09 to the Police Station In-charge Bemetara that Sushma Tandon, resident of village Navalpur, has been brought dead in the hospital. Thereafter, at 9.30 am, the brother-in-law of the deceased, Kamta Prasad Tandon (A-2), gave information to the concerned police to the effect that on 03.05.2016 at 3:00 am, the wife Sushma Tandon (deceased) of his younger brother Bhuvan Tandon (A-1), who was unwell for some time, died while being brought to the Government Hospital Bemetara. On the said information, Merg Intimation No. 44/2016 under Section 174 Cr.P.C., was registered vide Ex.P-15. Inquest was conducted vide Exs.P-2 & P-4. The dead body of the deceased was sent for postmortem examination. As per the postmortem report (Ex.P-6), proved by Dr. Vinay Kumar Tamrakar (PW-10), the cause of death was bleeding from the uterus and the nature of death was Syncope. The viscera and uterus were preserved for chemical examination and sent to FSL. Spot map was prepared vide Ex.P-11. After investigation, FIR was registered on 09.06.2016 vide Ex.P-14 against accused Bhuwan Tandon (A-1).

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4 . After completion of the investigation, the appellants were charge-sheeted and the case was committed to the Court of Sessions for trial and its disposal in accordance with law,

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in which the appellants abjured their guilt and entered into defence.

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5 . During the course of trial, in order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 20 documents. Statement of the appellants under Section 313 of Cr.P.C. was recorded wherein they denied guilt, however, 03 documents have been exhibited by the appellants in their defence.

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6 . After conclusion of the trial, the trial Court, by impugned judgment, on appreciation of oral and documentary evidence available on record, convicted the appellants for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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7 . Learned counsel for the appellants submits that there is no direct evidence against the appellants and they have been convicted only on the basis of Section 106 of the Evidence Act, as such, the appellants are entitled for acquittal. In alternate he submits that the injuries which were caused by the appellant (A-1) were on the non-vital part of the body of the deceased and were not dangerous for life as Dr. Vinay Kumar Tamrakar (PW-10) did not say that the injuries sustained by the deceased were sufficient in the

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ordinary course of nature to cause her death. As such, the case of the appellant (A-1) would not fall under Section 300-Thirdly of IPC but it would fall under Section 304 PartI of IPC. Therefore, the conviction of the appellant (A-1) under Section 302 of IPC be converted to Section 304 Part-I of IPC. The appellant (A-1) is in jail since 13.06.2016 i.e. 8 years and 7 months, therefore, he may be sentenced to the period already undergone by him. He also submits that considering the facts and circumstances of the case, in the interest of justice, the sentence of the appellant (A-1) for the offence under Section 201 of IPC may be reduced from rigorous imprisonment for 7 years.

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8 . Learned State counsel would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant (A-1) herein for the offence punishable under Section 302 of IPC and considering the injuries suffered by the deceased, the conviction of the appellant (A-1) cannot be converted, therefore, the appeal deserves to be dismissed.

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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.

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10. The first question, as to whether the death of deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the statement of Dr. Vinay Kumar Tamrakar (PW-10) who has conducted and proved the postmortem report (Ex.P-6) in which the cause of death of deceased was bleeding from the uterus and nature of death was Syncope, 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 the deceased was homicidal in nature.

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11. Now, the next question is as to whether the appellant (A-1) has assaulted the deceased?

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12. In the instant case, the learned trial Court found that on the date of the offence, the appellant (A-1) and his wife Sushma Tandon (deceased) both were alone in the house and the appellant (A-1) used to quarrel with his wife and on the date of offence, the appellant (A-1) assaulted his wife by hands and fists, by which she suffered grievous injuries and died, as such there were no other family members in the house, thereby trial Court has invoked Section 106 of Evidence Act and in the absence of explanation as to how and in what circumstances the deceased died when there is

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no one other than the appellant (A-1) and his wife (deceased) in the house and finding that the death of the deceased was homicidal in nature, trial Court proceeded to convict the appellant (A-1) for the offence punishable under Section 302 of IPC. As such, the finding recorded by the trial Court that the appellant has caused the injuries upon the deceased, due to which she died is a correct finding based on the evidence available on record and accordingly, we hereby affirm the finding recorded by the learned trial Court that the appellant (A-1) is the author of the crime in question.

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13. The aforesaid finding brings us to the next question for consideration, whether the offence of the appellant (A-1) be converted to Section 304 Part-I of IPC, in view of the decision of the Hon’ble Supreme Court in the matter of

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1 Nankaunoo v. State of Uttar Pradesh ?

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14. The Supreme Court in the matter of Nankaunoo (supra), in paragraph 12 to 14, has held 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

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1 (2016) 3 SCC 317

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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 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

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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.

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14 . In the result, the conviction of the appellant under Section 302 of IPC is modified as conviction under Section 304 Part I IPC and the appellant is sentenced to undergo ten years’ rigorous imprisonment and the appeal is partly allowed.”

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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), considering the opinion of Medical Officer, Dr. Vinay Kumar Tamrakar (PW-10) who conducted postmortem and gave his report vide Ex.P-6 found 6 injuries on the body of the deceased which are as follows:

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There were multiple scratch marks. An injury measuring 10cm x 9 cm was found on the right side of the abdomen (Right plank)

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A scratch measuring 5cm x 5 cm was found around the naval.

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Multiple scratches measuring 8 cm x 5 cm were found on the lower part of the right back.

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Multiple injuries measuring 9cm x 7 cm were found on the dorsal side of the right thigh.

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Multiple scratches measuring 14 cm x 8cm were found on the inner part of the left thigh, and

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A scratch measuring 3cm x 5cm was found near the right thigh and blood was also found there.

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It is quite vivid that all the injuries were on the non-vital

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part of the body of the deceased, uterus was normal but it

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was having blood and blood was found around the vagina and as per the postmortem report (Ex.P-6) proved by Dr. Vinay Kumar Tamrakar (PW-10) cause of death of deceased was bleeding from the uterus and nature of death was Syncope but the doctor did not say that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. 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 (A-1) under Section 302 of the IPC should be altered under Section 304 Part-I of the IPC and the prosecution has failed to establish that the nature of injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly of IPC.

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16. Accordingly, the conviction of the appellant (A-1) for the offence punishable under Section 302 of IPC is altered/modified to under Section 304 Part-I of IPC and the appellant (A-1) is sentenced to 10 years’ rigorous imprisonment; however, the fine amount imposed by the trial Court shall remain intact. Further, looking to the material and evidence available on record the conviction of

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the appellant Kamta Prasad Tandon (A-2) for the offence punishable under Section 201 of IPC is well merited, however, considering the facts and circumstances of the case and also considering that the appellant (A-2) was aged about 30 years at the time of the incident his sentence is hereby reduced to 6 months’ rigorous imprisonment from 7 years’ rigorous imprisonment; however, the fine amount imposed by the learned trial Court shall remain intact.

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

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18. 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 the appellant (A-1) 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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H.L. Sahu

Bhuwan Tandon v. State of Chhattisgarh

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Bhuwan Tandon v. State of Chhattisgarh

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