High Court of Chhattisgarh
Case Details
^' '%.) CF0000060311 C/jnJ^ >^ y^7 Oivlsion Bendi (CrNnal) ^ 3M THE HIGH CQUR2 OF KABHYA mAIESH Ay JABALPEI&^ /eCR.C* NG< ;sv^~ CRIKINAL APPEAL N0. Z3SS JTW» ^i997w APEELLAKT:- s- ^\-\ ^ BESPCKDSHPSs- :- ^e(5o^*«'<'c'<»?a<»so*w<'ft*''»»<'8MG< e.^s&<ssy6^i^ rs^.^&£...e.-^.- ,..'^Q».iA....A(Imals p^j^ THE STA2E CF %•?• THROUOH POLIOE STATION: ^KreAHDULs ' DISTRICT-BASTAR(MP)* -VERSX3S- SUS'HEN S{©CBOMAHARAN BANGALI, A(S;D 19 ^EARS, 2)^^^M S^I^^XN^H^N^BAm^I? R/0 BANGALI CAMP KIRAKDUL: DISCT < BASSAR(HP)<|, APELICATION FO& IEAVE TG APEEM- UNBER SECTION 578C5) CR^P^'' APBSAL ^N]SR SECTION 578(1^ C&,P.C. :~ . . ~' ' . .. HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM: HON'BLE SHRI YATINDRA SINGH. C.J. &
Legal Reasoning
HQN^BLE SHRI PRITINKER DIWAKER J Criminal Appeal No. 1981 of 1996 APPELLANTS Sapan and another VERSUS RESPONDENT State of Madhya Pradesh Shri Surendra Singh learned Sr. counsel with Shri Neeraj Mehta Shri D.K. Gwalre, Govt. Advocate for the respondent/State. Advocate for the appellants. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Criminal Appeal No.2461 of 1997 APPELLANT The State of Madhya Pradesh VERSUS RESPONDENT Sushen Shri D.K. Gwalre, Govt. Advocate for the Appeilant/State. Shri Surendra Singh learned Sr. counsel with Shri Neeraj Mehta Advocate for the respondent. CRIMINAL APPEAL UNDER SECTION 378 (11 OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (11.02.2013) Since both the aforementioned appeats arise out of the same judgment and order dated 14.10.1996 passed by Additional Sessions
Decision
Judge, Jagdalpur in Sessions Trial No. 96/1992, they are disposed of by this common judgment. 2. By the judgment impugned, accused/appellants in Criminal Appeal No. 1981/1996 have been convicted under Sections 302 and 307/34 IPC and sentenced to undergo imprisonment for life u/s 302 and rigorous imprisonment for seven years u/s 307/34 IPC. However, the accused/respondent in Criminal Appeal No. 2461 of 1997 has been acq'"tted of the charge levelled against him under Section 302, 307/34 IPC. 3. Facts of the case in nutshell are that on 1.9.1991 four accused persons namely Sapan, Somen Rai, Sushen and Suben are alleged to have assaulted Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9). It is alleged that at the relevant time deceased Haripad Devnath also reached the spot and he was also assaulted by the accused persons and while taking treatment s'jccumbed to the injuries sustained by him on 7.9.1991. FIR (unexhibited) was lodged on 1.9.1991 itself by Mira Bai (PW-10) and basedon that, offence under Section 307/34 IPC was registered against all the four accused persons. Deceased was medically examined vide Ex. P-11, injured Shankarlal Devnath (PW-4) vide Ex. P-12, Subhash Devnath (PW-5) vide Ex. P-9, Krishna Devnath (PW-6) vide Ex. P-8 and Jeevan (PW-9) vide Ex. P-10. However, after the death of Haripad Devnath, offence u/s 302/34 IPC was added. Postmortem examination was conducted on the body ofthe deceased on 7.9.1991 itself by Dr. A.K. Singh (PW-7) vide Ex. P-23 opining the cause of death as respiratory arrest leading to cardiac failure on account of grievous injuries on chest. After completion of investigation, charge-sheet was filed on 14.12.1991 for the offences under Sections 302, 307/34 IPC and 25 of the Arms Act. 4. As at the relevant time accused Suben was minor, he was tried by the Juvenile Court whereas trial in respect of others was concluded by Additionat Sessions Judge, Jagdalpur. 3. In support of its case the prosecution has examined 11 witnesses. St^ements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No.1 ofthe judgment. However, accused/respondent Sushen has been acquitted of the charge levelled against him. 5. Heard counsel for the parties and perused the materialavailable on ^ record. 6. In Criminal Appeal No. 1981/1996 it has been argued by the counsel for the appellants that even if the entire case of the prosecution is taken as it is, accused/appellant No.1 Sapan cannot be convicted under Section 302/34 or 307/34 IPC because as per the evidence available on record at the time of incident he was carrying club in his hand but according to the eyewitnesses he caused injury on the head of the deceased whereas in the medical and postmortem report of the deceased no head injury was found. He further submits that in respect of accused/appellant No. 2 namely Somen Rai, his act would fall under ^ Section 304 (Part-11) IPC because there is no evidence on record that he had any intention to cause death of the deceased and at best it can be held that his intention was to cause injury to him likeother injured persons. Referring to the statements of Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9) counsel for the accused/appellants submits that from their evidence it is apparent that the accused/appellants had no common intention either to cause injuries to them or death to deceased Haripad Devnath. He submits that act of accused/appellant Sapan would at the most fall under Section 324/34 IPC. Lastly, he submits that at the relevant time accused/appellants were the young boys and therefore lenient view may be taken against them as far as sentence part of the judgment impugned is concerned. In support of his stand, counsel for the appellants ptaced his strong relianceon the decisions of the Supreme Court in the matter of Rajangam v. State (Tamilnadu) reported in AIR 1993 SC 2636 and in ^ the matter of Harish Kumar v. State (Delhi Administration) reported in AIR 1993 SC 973. As regards Criminal Appeal No. 2461/1997, learned Sr. counsel submits that the Court below has rightly acquitted the respondent/accused as it is a settled legal position that if two views are possible, one favouring the accused has to be taken into consideration. 7. On the other hand, counsel for the State supports the judgment impugned as far it relates to conviction of accused/appellants Sapan and Somen Rai but holds it as incorrect so far as acquittal of accused/respondent Sushen is concerned. He submits that the accused/appellants Sapan and Somen Rai have rightly been convicted Aq ps^nesse 9J9M pssesosp eq^ 6uipnpu! suuipiA QL^ qoiqM ui jsuueuu Q[}} 0} se 6ui^s A||eouo6aieo uoi^noesojd e^ p eseo eq^ peijoddns OS|B aAeq (£-AAd) euujeqs UBL|qeJpueqo pue (z-AAd) 'ey Jeuun>i Ijuns A|9Lueu sesseu^iM ^uepuedQpui e^ U9A9 ieqi siiuuqns lesunoo Qye}S 'pQuie^uieuu sq p|noL|s uusq^ o} p8pje/v\e eous^ues eqi sjojejeq^ pue Aoueiuei Aue jo^ p9|l!^ue ^ou eje Ae^ siue||8dde eqi ^o pe snoui9L| eq^ Guuepisuoo ^eqi s^iiuqns j9L|^in^ |9sunoo Q}Q}S 'JQUUBLU idmqe 'UOSBQJ oypeds Aue 6u!u6isse ue ui ^uepuodssj/pesnooe pe^inboe seq }\ ^noti^M ^ -ON qdej6ejed ui \\v\s ^nq pssesosp Q\}} \\i)\ o^ suosjsd pesnooe e^ p ^jed eq^ uo uonue^ui UOUULUOO SBM Qjoq} ye^} peuoi^ueai A||eouo69}eo seq /v\o|eq ijnoo e^ 'p9u6ndLUi iu9Lu6pnf e^ ^o oi7 'ON L|dej6ejed ui 'iuiq o; 6uipjooov "/wo|9q ^inoQ eq^ Aq pe^inboe uaeq seq eq Duipuij esj9AJ8d 6UIA16 9|iLiM ^eq; |8sunoo 9^3 QU^ Aq penOje ueeq seq •SLUIPJA eqi ||i>| o^ jeLiio qoes ps^oqxe }\ pesnooe pa^nboe p pedsej u| peq AQL|} LuoqM o^ Buipjoooe (6-Md) ueAsor pue (g-AAd) L|ieuAea euL|su>i '(9-Md) '(l7-AAd) L|^UA9Q |e|je>|ueqs p s^usuue^s M^UA9Q qseqqng 9L|i 0104 p9J8qie6 jeq^jn^ eq ueo ^ied uo^ue^ui 6uipjooov "IJed [BIIA uo L|OjqM p OM^ seunfu! ssjqi pejej^ns peq peseeoep eq^ U9A8 ^eq^ s^iLuqns jeq^in^ SH 'iueq^ o^ SQunfui p jsquunu 6u!sneo |9sunoo e^s 941 oi A^ied pQjnfui aq^ pe^nesse A||e^mq pue suodeeM A|pesp q^iM psujje A|np j9q^e6o^ 9Lueo suosjsd pesnooe e^ ||e •ye^} pe^ Q{\} uuojj pej9q^e6 jeq^inj eq ueo p9SB939p eq^ BU!||!>| p UOI^UG^U! UOLULUOO IBL|I s^iujqns j8L|^in^ SH •LU8L|i ^o euo ^seei ie jo SLUJPIA eq^ ||e ||!>| 01 uoi^usiui peq Asqi ^eq^ ^es^i s>|eeds sje^o Q} seunfui pssneo pue peseeosp e^ peiinesse 9Aeq Aeqi qoiqM ui jeuueLU 9^ ssneoeq Qdl l7£/ZO€ pue ^S/ZOS suoipes jspun the accused persons. 8. Shankarlal Devnath (PW-4) has stated that he knew all the accused persons and all happen to be brothers. He has stated that on the date of incsdent at about 8.30 p.m. when he returned home from the market, some persons including Bena Shah, Sunil, Subhash Devnath and Krishna Devnath were listening songs on a tape-recorder. Meanwhile, the tape recorder developed some fault and got stopped and at that point of time he heard some commotion from the side of courtyard asking Krishna to come out. Thiswitness also heard someone saying that he would kill everyone. According to this witness, when Krishna came out of the house foltowed by his sister namely Aalo. Thereafter, he also came out of the house and saw accused/appellant Sapan carrying club, accused/appellant Somen carrying sword, accused/respondent Sushen carrying rod whereas juvenile accused Suben carrying knife, and started beating Krishna. Accused/appellant Sapan caused injury with ctub, L/ accused/appetlant Somen caused injury near his ear and neck whereas accused Suben caused injuries on his ribs with knife. Thereafter, accused Sushen chased his sister with an intention to cause injury to her with rod but he caught hold of him and asked as to why he was trying to assault her. In paragraph No.3 this witness has stated that when his brother Subhash was assaulted by the accused persons, he hid himself under a truck and after running up to some distance he fell down. Thereafter, according to this witness, he saw the accused Somen assaulting his brother Subhash with sword and after some time when his other brother Jeevan came to the rescue of Subhash, he too was surrounded by the accused persons and assaulted by accused Somen with sword causing injury to his neck. According to this witness, when his father (deceased) was coming from the market, accused persons surrounded him too and accused Somen inflicted injury to him with sword, accused Sapan with club, acquitted accused Sushen with rod and juvenile accused Suben with knife. Then with the help of Chandrabhan Sharma, Sapan Pal and ^ / Bena Shah, he, his father and brothers Jeevan and Subhash were shifted to NMDC where during treatment his father (deceased) died 3-4 days after hospitalization. In cross-examination also, this witness has stated the same thing as in the examination-in-chief and nothing could be elicited by the defence to be of any help to the accused/appetlants. Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9) have also made almost the similar statement like Shankarlal Devnath <PW-4) supporting the case of the prosecution. Sunil Kumar Rai (PW-2) and Chandrabhan Sharma (PW-3) - the independent witnesses to the ,/ ^. case of the prosecution have also supported the case of the prosecution and stated that on the date of incident Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9) were assaulted by the accused persons. According to them, Haripad Devnath (deceased) was also assaulted and he died six days after the f ' incident. 9. Minute examination of the evidence of the witnesses makes it clear that on the date of incident accused/appellants Sapan, Somen and acquitted accused Sushen had assaulted the injured persons namely Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath 8 (PW-6) and Jeevan (PW-9) as also the deceased namely Haripad Devnath with the help of club, sword, rod and knife. Considering the evidence of the injured persons as also the two independent witnesses (PW-2 and PW-3) it can be held that it is the accused persons who assaulted the injured persons as also Haripad Devnath with deadly weapons who breathed his last in the hospital though six days after the f;" incident. 10. Now the only question to be decided by this Court is whether the act of the accused/appellants would fall under Section 302 or 304 (Part-lt) IPC. For ready reference Section 304 reads as under: for culpable homicide with imprisonment not 304,"Punishment culpable amounting to murder.- Whoever commits homicide not amounting to murder shall be punished for for either description for a term which may extend to ten if the act by which years, and shall also be liable to flne, the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, imprisonment life or or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, is likely to if the act is done with the knowledge that it cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." Undisputedly, in the incident which occurred on 1.9.1991decea8ed sustained injuries including on vital parts of his body. We have seen the nature of injuries and also the time gap between their infliction and the death which comes to six days. No sufficient material is available on record regarding the nature of treatment given to him during six days of his hospitalization. What emerges from the evidence of the witnesses is that the accused persons had intention to cause bodily injury to the deceased as well as the injured persons but not of causing death of the deceased because he is stated to have come to the spot all of a sudden and in these circumstances though the injury resulted in his death, we cannot conclusively say that accused persons had prior intention to kilt the deceased. Furi:her, considering the fact that the deceased died after six days of sustaining injuries and further keepingin view the law cited by w.^' the counsel for the accused/appellants, act of the accused/appellants would fall u/s 304 (Part-11) IPC. Similarly, for causing injuries to Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9), the appellants are liable to be convicted under Section 307/34. 11. As regards respondent/accused in Cr.A. No. 2461/1997, from the evdence of Shankarlal Devnath (PW-4), Subhash Devnath (PW-5), Krishna Devnath (PW-6) and Jeevan (PW-9) it is apparent that at the time of incident he was also present on the spot carrying rod in his hand. From the evidence of these witnesses, it is also apparent that he chased the sister of Shankarlal Devnath (PW-4) carrying iron rod with him but was apprehended by her brother. Thus it can be said that respondent/accused Sushen was also involved in the incident and that being so he is also liable to be convicted under Section 304 (Part-11) and 307 with the aid of 34 IPC. Findings recorded by the trial Court in relation to respondent/accused Sushen are perverse and contrary to record. Thus the impugned judgment acquitting respondent/accused is liable to be set aside. Resultantly, this appeal is allowed and the judgment impugned so far as it relates to his acquittal is set aside. He is convicted iCr^ T. r JT under Sections 304 (Part-j[)/34 and 307/34 IPC. 12. Criminal Appeat No. 1981/1996 is partly allowed. Conviction ofthe appellants u/s 302/3-^JPC is set aside and the appellants are convicted -r/s« u/s 304 (Pat-II^IPC. So far as conviction u/s 307/34 IPC is concerned, the prosecution has established its case beyond all reasonabte doubts ^r and they had common intention to cause grievous bodily injuries to the victims. Accordingly, the conviction u/s 307/34 IPC is held to be strictly in accordance with law. 13. As regards sentence, the incident had taken place in the year1991 and at the relevant time accused persons were in their young age, the appellants in Criminal Appeal No. 1981/1996 and respondenVaccused in Criminal Appeal No. 2461/1997 are sentenced to undergo Rl for seven years u/s 304 (Part-ll)/and Rl for five years u/s 307 IPC. They, however, sh^ll pay compensation of Rs. 20,000/- u/s 357(3) Cr.P.C. which would be payableto the injured persons inequat proportion. Failure to pay this amount shall lead to one year extra imprisonment for the accused/appellants. _13__Appeals thus partly allowed. Sd/- ChiefJustice Sd/- pritinkerDiwaker Judge ^^ y^ y^ ^- ,ve ,^' \^r^- sv-(t^^ ^ \^'^ ^-