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2014 Supreme(Chh) 438
CHATTISGARH HIGH COURT
CHANDRA BHUSHAN BAJPAI, J.
Dhaneshwar Singh & Another – Appellants
Vs.
State of Chattisgarh – Respondent
Criminal Appeal No. 601 of 1998
Decided On : 16.9.2014
Headnote:
Indian Penal Code - Section 304 - undergo rigorous imprisonment - judgment of conviction - First Information Report - being any iota of evidence – injuries - Spot map was prepared vide - Blood stained soil and plain soil were seized from the spot vide Ex.-P/8. Memorandum of appellant (A-1) was recorded as - An axe was seized at the instance of appellant vide Ex.-P/3. Appellant gave disclosure statement vide - A crowbar was seized at the instance of appellant A lunge was seized from appellant was seized from died appellant vide - A sealed packet containing clothes of the deceased sent by the autopsy surgeon was duly seized vide Ex.-P/15. During the investigation, query was made whether by the weapons so seized- axe, stick and crowbar, the injuries found over body of the deceased may be caused vide) opined that the injuries caused over the body of may be caused by the weapons so sent for examination – Held, So far as the act of the appellants are concerned, they were armed with deadly weapons i.e. axe and crowbar; by these weapons injuries were noticed on the body and during the incident they assaulted the deceased. Use of weapons and the presence of the injuries from the said weapons and the fact that the incident happened when the deceased went to the locality of the appellants is held to be established by the prosecution. Appellant is nephew of the deceased, existence of maintenance dispute was present there between the mother of appellant and the father of appellant (A-1)-deceased was real maternal uncle of appellant with the background of above dispute regarding maintenance and not keeping when the appellants saw in front of their locality, they assaulted and the injures received by the deceased and he succumb to those injuries. This is not a case where only grievous hurt was caused by dangerous weapons or means but this is more than grievous hurt and by the effect of the injuries due to excessive the deceased died within a few hours while he was taken to the hospital. The injuries were sufficient to cause the death as deposed by Doctor in his examination-in-chief at para 6; the offence does not come under Section 326 of the IPC rather it comes under the scope of Section 304 of the IPC. Now, the question is whether the present case comes under Section 304-Part I of the IPC or Section 304-Part II of the IPC – Consequently appeal is partly allowed. Instead of Section 304-Part I of the IPC, the appellants are convicted under Section 304-Part II of the IPC and each of them are sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 200/- in default thereof, they have to further undergo rigorous imprisonment for 1 month. They shall be entitled to set off their period of detention during trial (and during hearing of the appeal – Appeal allowed
CHANDRA BHUSHAN BAJPAI, J.
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06-02-1998 passed by the Additional Sessions Judge, Surajpur, the then District Surguja, M.P. (now C.G.) in Sessions Trial No. 88 of 1997 whereby and whereunder the learned Additional Sessions Judge after holding the appellants guilty for causing homicidal death not amounting to murder of Premsai, convicted the appellants under Section 304-Part I of the Indian Penal Code (in short the IPC) along with died appellant Jaylal for whom the appeal stands abated as per order dated 27-9-2004 and sentenced them to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 200/- in default of payment of fine, to further undergo rigorous imprisonment for 1 month, to each appellant.
2. Conviction is impugned on the ground that without there being any iota of evidence. Court below has convicted and sentenced the appellants aforesaid mentioned and thereby committed illegality.
3. As per case of the prosecution, name of deceased is Premsai. On 01-6-1996, at about 6.30 p.m., Devnarayan (PW-3) reached to Police Station Ramanujnagar and lodged the First Information Report (FIR) against the appellants including the appellant died during pendency of the appeal that at about 11.00 a.m., on account of previous enmity the appellants and other co-accused Jaylal assaulted the deceased by axe, stick and crowbar. On account of the injuries inflicted by the appellants, deceased Premsai became unconscious at the spot at village Rampur Dehai Para and when he was taken to the hospital, died on the same day. Police registered the First Information Report under crime No. 59 of 1996 under Section 302/34 of the IPC. Same time merg was also recorded at about 18.35 hours same day by Devnarayan (PW-3) which was registered as Ex.-P/IA. Police of Ramanujnagar reached to the place of incident. After giving inquest notice (Ex.-P/5), inquest was conducted on the dead body of Premsai vide Ex.-P/2. After the inquest, the dead body was sent for post-mortem vide memo Ex.-P/6. Doctor R.B. Prajapati (PW-8) conducted the autopsy on 02-6-1996 and noticed following injuries/symptoms:-
(i) Lacerated wound 3 x ½ x ½ cms. over left thigh.
(ii) A punctured wound 1 x 1 x 1 cm. over left forearm.
(iii) Incised wound 6 x 1 x ½ cms. over head on occipital part.
(iv) One contusion 8 x 3 cms. over left leg.
(v) Lacerated wound 6 x 1 x 1 cms. backside of the head.
Except one injury rest were caused by hard and blunt object, one injury was caused by hard and sharp object. As per opinion cause of death was shock due to haemorrhage caused by the injuries. It was also opined that at the time of autopsy, 36 hours had passed since death. He gave his report vide Ex.-P/22.
Spot map was prepared vide Ex.-P/7. Blood stained soil and plain soil were seized from the spot vide Ex.-P/8. Memorandum of appellant Dhaneshwar (A-1) was recorded as Ex.-P/9. An axe was seized at the instance of appellant Dhaneshwar (A-1) vide Ex.-P/3. Appellant Mundal @ Kailash gave disclosure statement vide Ex.-P/11. A crowbar was seized at the instance of appellant Mundal @ Kailash vide Ex.-P/5. A lungi was seized from appellant Dhaneshwar (A-1) vide Ex.-P/12. A lungi was seized from died appellant Jailal vide Ex.-P/13. A sealed packet containing clothes of the deceased sent by the autopsy surgeon was duly seized vide Ex.-P/15. During the investigation, query was made whether by the weapons so seized- axe, stick and crowbar, the injuries found over body of the deceased may be caused vide Ex.-P/16, Ex.-P/17 and Ex.-P/18. Doctor R. B. Prajapati (PW-8) opined that the injuries caused over the body of Premsai may be caused by the weapons so sent for examination. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code).
4. After completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Surajpur,
