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2016 Supreme(Chh) 103
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NAVIN SINHA, P. SAM KOSHY, JJ.
Lalchand S/o Punaram Lodhi - Appellant
Versus
The State of Chhattisgarh through P.S. Dongargarh, District Rajnandgaon - Respondent
Criminal Appeal No. 942 of 2001
Decided On : 06-05-2016
For the Appellants : Smt. Renu Kochar
For the Respondent: Shri Raj Kumar Gupta
Headnote:
Indian Penal Code - Section 304 – Criminal Procedure Code - Section 313 - Suspected of stealing crops - Life imprisonment - Conducted post mortem - FIR Exhibit was lodged by wife of deceased naming six persons including Appellants - Accused and deceased were co-villagers - Their fields were adjacent to each other - Accused suspected the deceased and his family of stealing their crops - When deceased and his family were in their fields sitting by bonfire at about accused are stated to have come and assaulted them Appellant is also stated to have suffered injuries - They were all taken to hospital where the deceased succumbed - Counsel for Appellants submitted that the deceased and his family were the aggressors who entered field of Appellants and would steal crops Accused had acted in self defence evident from the injury report Exhibit of Appellant had also stated in his defence under Section 313 CrPC - that he had suffered injuries both sons of the deceased have also stated that Appellant was taken to the hospital along with Appellant It was therefore a case of either self defence or free fight - In both situations nature of assault made cannot be measured in golden scales – Held, The conduct of the Appellants at this stage also assumes relevance - If they had the intention to kill they would not have taken the deceased and to the hospital along with them on the bullock cart - In the entirety of the matter we find it difficult to sustain the conviction under Section 304 Part I IPC But considering their conduct of dragging the deceased who had multiple injuries on his person and then tying him up along with his wife to the pole and assaulting them when they were rescued by intervention of villagers the Appellants can easily be said to have knowledge that death was likely to ensue - It is not necessary that death must be attributable to a particular specific injury - If death ensues as a cumulative result of the injuries caused conviction will follow - The conviction is therefore required to be altered from Section 304 Part I IPC to Section 304 Part II IPC - We are not impressed with the argument that the Appellants are entitled to acquittal like the co-accused - Trial Court has doubted the presence of those acquitted at the time of occurrence - Aspect of credibility of an injured witness has not been discussed - In any event no appeal against acquittal has been preferred - Appellant was injured in the same incident and took the plea of self defence which has been disbelieved - Appellant took the plea of having been injured in the same episode but led no evidence in support of the same - Appellants did not proceed for treatment all by themselves and took deceased with them also to the hospital - Death was not a direct outcome of the assault - In the entirety we are of the considered opinion that a sentence of five years will suffice in the interest of justice - Appeal dismissed
Navin Sinha, J.
The Appellants stand convicted under Section 304 Part I IPC to life imprisonment with fine of Rs.1,000/- each, in the event of failure to pay which they were required to undergo three months' further rigorous imprisonment, ordered on 28.9.2001 by the 1st Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 44 of 1999.
2. FIR, Exhibit P-1 was lodged by PW-1, Mainabai, wife of deceased Kahatlal naming six persons including the Appellants. The accused and deceased were co-villagers. Their fields were adjacent to each other. The accused suspected the deceased and his family of stealing their crops. On 8.2.1999 when the deceased and his family were in their fields sitting by the bonfire, at about 8:30 p.m. the accused are stated to have come and assaulted them. Appellant No. 2 is also stated to have suffered injuries. They were all taken to the hospital where the deceased succumbed at about 3:50 a.m. on 9.2.1999.
3. Learned Counsel for the Appellants submitted that the deceased and his family were the aggressors who entered the field of the Appellants and would steal crops. The accused had acted in self defence evident from the injury report, Exhibit D-3 of Appellant No. 2. Appellant No. 1 had also stated in his defence under Section 313 Cr.P.C. that he had suffered injuries. PW-2, Dorelal and PW-3, Jitendra, both sons of the deceased, have also stated that Appellant No.1 was taken to the hospital along with Appellant No. 2. It was therefore a case of either self defence or free fight. In both situations the nature of assault made cannot be measured in golden scales. The deceased did not die of any specific injury caused due to assault. Most of the injuries were bruises. PW-18, Dr. A.K. Tamrakar, who conducted the post mortem stated that considering the age of the deceased, the ribs may have broken because of the fall attributable to the low calcium in the body. No assault was made on any sensitive part of the human body such as the head. Death was attributable to breathing problems leading to the neurogenic shock. There was long standing enmity between the parties with some litigations also. If the accused had any intention to kill they had several opportunities in the past to do so. The Appellants therefore did not have any intention to kill. At best they may be stated to have the intention to teach a lesson to the deceased and his family for stealing crops. There is no material to conclude any intention to cause such injury which may cause death or was likely to cause death. The conduct of the Appellants in having taken the deceased and the injured to the hospital for treatment along with themselves militates against any intention to kill. Conviction under Section 304 Part I IPC was therefore not sustainable and at best if they are liable the conviction ought to be under Section 325 IPC which provides for a maximum imprisonment of seven years. Reliance was placed on AIR 1993 SC 2323 (Baijnath Mahton v. State of Bihar) that in the facts of the case sentence of two years shall suffice.
4. In the FIR, PW-1, Mainabai said that the assault took place while they were returning from their fields while in Court she stated that it took place while she was in her fields. The story that the witness and the deceased were tied to a pole in front of the shop of Babulal and beaten up again has been disbelieved inter-alia on the ground of finding no mention in the FIR. The presence of four co-accused has been disbelieved on the reasoning that they were all related and in view of past enmity the possibility of false implication of the entire family cannot be ruled out. If the witnesses were unreliable with regard to some of the co-accused in a common incident of assault there was no justification for relying upon the same witnesses to distinguish the present two appellants and convict them. The Appellants were also entitled to acquittal.
5. Learned Counsel for the State submitted that there is no evidence that Appell
