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2016 Supreme(Chh) 12
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Pritinker Diwaker and Chandra Bhushan Bajpai, JJ.
Shankar Lal Dewangan - Appellant
Vs.
State of C.G. - Respondent
Criminal Appeal No. 473 of 2011
Decided On : 15-01-2016
For the Appellant :Ashok Swarnkar, Advocate.
For the Respondent: Ashish Surana, Panel Lawyer.
Headnote:
Indian Penal Code - Section 302 – Criminal Procedure Code - Section 313 - Judgment Of Conviction – Injuries – Offence of Murder - On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of accused/appellant is strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court - He further submits that on the date of incident, the accused/appellant and the deceased were working together in the field and thereafter in the evening the deceased was found lying dead in the field and the accused/appellant was absconding – Held, Further court find no substance in the argument of counsel for the appellant that at the time of incident, he was suffering from insanity or unsoundness of mind. This point has neither been raised during the course of trial nor any evidence to this effect has been brought on record like medical documents etc. showing that the appellant is suffering from any such mental ailment or the opinion of the medical expert. It has time and again been held by the Apex Court that unless pleaded and proved during trial, the accused is not entitled to derive the protection of Section 84 IPC simply by raising the issue at a belated stage. In the present also has not been taken in a position to prove in accordance with law that the cognitive faculties of the accused were so impaired that he was not in a position to see the repercussions of his act and since it has not been done, the accused/appellant cannot disown his guilt of murdering the deceased. Further, the act of accused/appellant in denying the charges, pleading trial and innocence in his statement recorded under Section 313 makes this Court to draw an inference that his mental faculties were not so impaired to provide him the strength to wriggle out of the rigor of law. Thus, in these circumstances and keeping in mind the aforesaid legal position, the appellant is held to be dis-entitled to have the protection of Section 84 of IPC - it should have been first and foremost duty of the accused/appellant to take her to the hospital for treatment after she sustained injuries or in the event of death the information should have been given to the police, but nothing like this has been done by accused/appellant, rather he fled from the village - This facet also raises an accusing finger leading to the involvement of accused in crime in question – Appeal dismissed
Pritinker Diwaker, J.
1. This appeal has been filed against the judgment of conviction and order of sentence dated 31.3.2011 passed by the Additional Sessions Judge (FTC), Bemetara in S.T. No. 9/10 whereby the accused/appellant has been convicted under Section 302 of the Indian Penal Code (for short 'the IPC) and sentenced to undergo R.I. for Life and fine of Rs. 2,000/-, in default to undergo additional R.I. for 06 months. Accused/appellant is the husband of deceased Rambai. As per case of the prosecution, on 13.6.2009 at about 6.00 a.m. in the morning the accused/appellant had left his house for the agricultural field. On the same day at about 9.00 a.m., wife of accused/appellant namely Rambai (since deceased), along with other family members had also reached the agricultural field. At about 2.00 p.m. in the afternoon, except the appellant and his wife Rambai, all the members returned home for taking lunch. However, when the accused/appellant and his wife did not return till evening then they were searched and during the course of search, the body of the deceased with injuries was found lying in the field. Merg Intimation No. 37/09 was recorded. During investigation, it revealed that the accused/appellant caused death of the deceased by assaulting her with stone. Thereafter at the instance of Mahendra Dewangan, son of the accused/appellant & the deceased, FIR (Ex. P-15) was recorded against the accused/appellant under Section 302 of IPC. Inquest on the body was performed vide Ex. P-2. Dead body was sent for post-mortem examination which was conducted by Dr. Jitendra Kunjaam (PW-10) vide Ex. P-14 on 14.6.2009. The autopsy surgeon has noticed following injuries:--
"Lacerated wound with clotted blood of 3 x 2 x 1/2 cm in size over left zygomatic area.
Lacerated wound on the left eye of 3 x 2 x 1/2 cm. Clotted blood was present.
Lacerated wound of 3 x 2 x 1/2 cm size below the left eye.
Contusions, three in numbers, on the lower jaw of 2 x 2 cm size. Rounded in shape.
Contusion on the upper side of the chest, reddish in colour.
Clotted blood was present in the nose and left ear.
Lacerated wound of 3 x 1/4 x 1/2 cm size at the left side of lower jaw.
Star shape lacerated wound of 3 x 2 x 1/2 cm of size on the upper part of the skull.
Lacerated wound of 5 x 1 x 1/4 cm size on the front side of right leg. Clotted blood was present."
The doctor has opined the cause of death as haemorrhage and shock as a result of multiple injuries to the body. On completion of investigation, charge sheet for the offence punishable under Section 302 of the IPC was filed against the accused/appellant and accordingly the charge was framed against him by the trial Court.
2. The prosecution in order to bring home the charge levelled against the accused/appellant had examined 17 witnesses in all. Statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he abjured his guilt and pleaded innocence & false implication.
3. After hearing the parties, the Court below has convicted & sentenced the accused/appellant in the manner as described above.
4. Counsel for accused/appellant submits that;
"it is a case of circumstantial evidence and no one has seen the appellant committing the crime and the circumstances shown by the prosecution in the present case do not complete the chain and therefore the court below has erred in holding the appellant guilty of the charge of murder.
That relations between the appellant and the deceased were cordial and thus there was no motive with the appellant to commit his murder.
Witnesses of alleged extra-judicial confession are residents of other village and therefore the question of appellant going to them and making any confession does not arise.
At the time of commission of offence, the appellant was of unsound mind and therefore, he is entitled for protection under Section 84 of IPC.
On the date of incident there was storm in the village and therefore the possibility that the stone kept on the roof of said hut c
