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2022 Supreme(Chh) 426
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, Sachin Singh Rajput, JJ.
Mohd. Shafique, S/o Mohd. Ishaque (In Jail) – Appellant
Versus
State of Chhattisgarh Through District Magistrate – Respondent
Criminal Appeal No.278 of 2011
Decided On : 11-10-2022
Advocate Appeared:
For the Appellant :Mr.Maneesh Sharma, Advocate
For the Respondent:Mr.Ashish Tiwari, Govt.Advocate, Mr.Sudeep Verma, Dy. Govt. Advocate and Mr.Soumya Rai, Panel Lawyer
Headnote:
Indian Penal Code,1860 – Sections 294, 323, 506 and 302 - Offence of Murder – Voluntarily Causing Hurt – Charged - Appellant herein abused filthy, his wife and children and also threatened to kill them and thereafter assaulted Sheru Mohd. by axe in his head and back by which he succumbed to death, of which the deceased himself lodged a report before his death to Police Station Kota vide Ex.P10 that on appellant has abused him filthy and also threatened him to administer poison to his son and alleging that by act ., appellant's wife has left him and also abused and assaulted him by axe - Pursuant to that report, FIR was registered against appellant vide Ex.P6 Complainant was sent for medical examination to Community Health Center, Kota, where Dr.Sandeep Dwivedi (PW2) declared him dead - Thereafter merg intimation was registered under Section 302 of IPC vide Ex.P8 - Inquest was conducted over dead body of deceased Sheru Mohd. vide Ex.P2. Postmortem was conducted by (PW2) vide Ex.P3 and opined that cause of death was due to injury on the vital organ of brain tissue subdural and subarachnoid hemorrhage and shock due to internal bleeding and death was homicidal in nature - Clothes of deceased was seized vide Ex.P9. Axe was seized vide Ex.P12 - Whether death of deceased Sheru @ Sher Mohd. was homicidal in nature ? - Whether appellant is author of crime ? – Held, Learned counsel for the appellant has relied upon decision of Bai Jiba (supra), which has impliedly overruled by decision of Supreme Court in the matter of State of Karnataka v. Shivalingaiah, AIR 1988 SC 115 and their Lordships of Supreme Court have held that act of squeezing testicles is dangerous to human life - In that view of matter, reliance placed in the aforesaid judgment is of no relevance - Similarly, decision cited by learned counsel for appellant in matter of Babu Ram (supra) is also not helpful to the appellant - Considering act of appellant causing injury in head of deceased (brain) by axe and considering nature of injury i.e. 3.08 sq.inch in head / temporal region, which was not only dangerous to life, but also designated as “hurt” which endangered life by which deceased died instantaneously, injury can be classified as injury which endangers life under Clause (viii) of Section 320 of IPC,Court set aside conviction of appellant for offence under Section 302 of IPC and instead thereof, he is convicted under Section 326 of IPC and sentenced to rigorous imprisonment for 5 years - Fine sentence imposed by trial Court shall remain intact - Criminal appeal filed by appellant Mohd. Shafique is partly allowed.
JUDGMENT :
Sanjay K. Agrawal, J.
1. The appellant herein questions the legality, validity and correctness of the impugned judgment dated 26.2.2011 passed by the Fifth Additional Sessions Judge, Bilaspur in Sessions Trial No.102/2010, by which he has been convicted for offence under Sections 302 and 294 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay fine of Rs.200/- under Section 302 of the IPC and SI for three months and further sentenced to pay fine of Rs.100/-.
2. The case of the prosecution, in brief, is that on 16.4.2010 at about 8 a.m. at village Pandra Pathra, Police Station Kota, District Bilaspur the appellant herein abused filthy to Sheru @ Sher Mohd., his wife and children and also threatened to kill them and thereafter assaulted Sheru Mohd. by axe in his head and back by which he succumbed to death, of which the deceased himself lodged a report before his death to the Police Station Kota vide Ex.P10 that on 15.4.2010 the appellant has abused him filthy and also threatened him to administer poison to his son and on 16.4.2010 alleging that by the act of Sheru Mohd., the appellant's wife has left him and also abused and assaulted him by axe. Pursuant to that report, FIR was registered against the appellant vide Ex.P6. Complainant Sheru Mohd. was sent for medical examination to Community Health Center, Kota, where Dr.Sandeep Dwivedi (PW2) declared him dead. Thereafter merg intimation was registered under Section 302 of the IPC vide Ex.P8. Inquest was conducted over dead body of deceased Sheru Mohd. vide Ex.P2. Postmortem was conducted by Dr.Sandeep Dwivedi (PW2) vide Ex.P3 and opined that cause of death was due to injury on the vital organ of brain tissue subdural and subarachnoid hemorrhage and shock due to internal bleeding and death was homicidal in nature. Clothes of the deceased was seized vide Ex.P9. Axe was seized vide Ex.P12. The appellant was charge-sheeted in the Court of Judicial Magistrate First Class, Kota for offence under Sections 294, 323, 506 and 302 of the IPC, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the Fifth Additional Sessions Judge, Bilaspur received the case on transfer for trial in accordance with law. The appellant / accused abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 17 documents Exs.P1 to P17. Statement of the accused/appellant was recorded under Section 313 of the CrPC, in which he denied guilt. However, the accused has examined none in his defence, but exhibited one document i.e. statement of Mohd.Anwar as Ex.D1.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 26.2.2011, acquitted the appellant from the charges under Sections 323 and 506 of the IPC and convicted him under Sections 302 and 294 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred.
5. Mr.Maneesh Sharma, learned counsel for the appellant, would submit that the prosecution has failed to bring home the evidence of clinching nature and the trial Court has convicted him by recording a finding which is perverse to the record. He would further submit that statements of Mohd.Aarif (PW6) and Mohd.Anwar (PW7) are not reliable and their conduct could create grave suspicion regarding their presence at the place of incident and make their evidence unreliable. He would also submit that non-mentioning about the head injuries on the body of the deceased by Mohd.Aarif (PW6) and Mohd.Anwar (PW7) at the time of inquest would clearly establish that they had not seen the incident and the deceased himself has lodged the FIR, but has not complained about any injury sustained by him on head nor he has made any mention about head injury at the time of filing MLC requisition Form and said fact has been admitted by the investigating officer Rajkumar Sori (PW10) and medi
