Ghoghra @ Ghoghro @ Shivprashad vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant/accused herein under Section 374(2) of the CrPC is directed against the impugned judgment dated 5.5.2016 passed by the Additional Sessions Judge (F.T.C.), Surguja (Ambikapur), in Sessions Trial No. 371/2011, by which the appellant herein has been convicted for offences under Sections 302, 323 and 324 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo simple imprisonment for one month, rigorous imprisonment for one year and fine of Rs.1000/-, in default of payment of fine to further undergo simple imprisonment for one month and and rigorous imprisonment for one year and fine of Rs.1000/-, in default of payment of fine to further undergo simple imprisonment for one month.

Case of the prosecution, in brief, is that on 15.5.2011 at 8-9 p.m. at village Purkela, P.S. Lundra the appellant came under the influence of liquor and pushed his mother Fuleshwari Bai (since deceased) and also abused his wife Budhiyaro (PW-3) and caused simple injuries to her by dangerous weapon and thereby committed the offence. It is further case of the prosecution that on 15.5.2011 at 8-9 p.m. when Budhiyaro (PW-3) and her mother-in-law deceased Fuleshwari Bai were about to sleep after having their meal, the accused/appellant came under the influence of liquor and started abusing his wife Budhiyaro (PW-3) and his mother deceased Fuleshwari Bai on the pretext of not serving food and he pushed his mother Fuleshwari Bai, by which she fell down and suffered injuries. Fuleshwari Bai was taken to Primary Health Centre, Raghunathpur on 17.5.2011 and thereafter she was shifted to Government Hospital, Ambikapur where she died on 20.5.2011. The appellant has also assaulted his wife Budhiyari (PW-3) by stick and knife, by which she suffered injuries, which was intervened by Sardodin and Chantidihan (PW-7). FIR (Ex.P-3) was lodged by Nanka (PW-2). The appellant/accused was arrested on 30.6.2011 vide Ex.P-11. Fuleshwari Bai was medically examined vide Ex.P-13. Stick and knife were seized from Budhiyaro vide Ex.P-16. Inquest was conducted vide Ex.P-4. Dr.Amupam Minz (PW-8) conducted postmortem of deceased Fuleshwari Bai vide Ex.P-9 and opined that mode of death was coma due to head injury. During the course of investigation, merg intimation being Merg No.15/2011 was recorded vide Ex.P-2A. After completion of investigation, the charge-sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur, who in turn, committed the case to the Court of Sessions, Surguja (Ambikapur), from where the Additional Sessions Judge (F.T.C.), Ambikapur (Surguja) received the case on transfer for trial. The accused abjured the guilt and entered into defence.

In order to bring home the above-stated offence, the prosecution examined as many as 14 witnesses and exhibited 20 documents. However, the appellant examined none in his defence and no document has been produced to support his case.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 5.5.2016, convicted the appellant herein for offence under Sections 302, 323 and 324 of the IPC and sentenced him as mentioned in opening paragraph of this judgment.

Mr.Santosh Bharat, learned counsel appearing for the appellant, would submit that the appellant has falsely been implicated in crime in question. If the prosecution story is accepted as it, then at the most, the appellant can be convicted under Section 323 of the IPC and cannot be convicted under Section 302 of the IPC. He would rely upon the judgment of the Supreme Court in the matter of Jani Gulab Shaikh v. State of Maharashtra 1970 SCC (Cri) 532.

On the other hand, Mr.D.C.Verma, learned Government Advocate appearing for the respondent/State, would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted the appellant herein for offence under Sections 302, 323 and 324 of the IPC and as such, the appeal deserves to be dismissed.

We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

The first question would be, whether death of deceased Fuleshewari Bai was homicidal in nature. The trial Court after appreciating medical evidence particularly statement of Dr.Anupam Minz (PW-8), who has conducted postmortem of deceased Fuleshwari Bai and statement of Dr.Y.K.Kindo (PW-10) who has medically examined Fuleshwari Bai, came to the conclusion that death of deceased Fuleshwari Bai was homicidal in nature. The aforesaid finding has not been seriously disputed by the learned counsel for the appellant. Taking into consideration the medical evidence available on record and finding recorded by the trial Court, we are of the opinion that the trial Court is absolutely justified in holding that death of deceased Fuleshwari Bai was homicidal in nature. We affirm the said finding.

Now, the question is whether, death was caused by the appellant herein and the trial Court is justified in convicting the appellant under Section 302 of the IPC.

Admittedly, on the fateful day of 15.5.2011 the appellant came to the house under the influence of liquor, he started abusing his wife Budhiyaro (PW-3) on the pretext of not serving food, at that time, deceased Fuleshwari Bai (mother of the appellant) also came there and when she tried to intervene not to abuse her daughter-in-law Budhiyaro (PW-3), then the appellant pushed his mother Fuleshwari Bai by which she suffered injuries. Injured witness Budhiyaro (PW-3), who is also eyewitness, has been declared hostile, but in para-3, she has partly supported the case of the prosecution. Dr.Anupam Minz who has conducted postmortem has been examined as PW-8. In internal examination, he has noticed seven injuries in the body of Fuleshwari Bai and also noticed fracture in right temporal bone and also stated that it could be caused by hard and blunt object. Dr.Y.K.Kondo (PW-10), who has examined deceased Fuleshwari Bai immediately after the incident on 17.5.2011, has also noticed four injuries on her body, which could be caused by hard and blunt object. As such, it has been established that injuries were caused by the appellant by which Fuleshwari Bai fell down and suffered injuries as noticed by Dr.Anupam Minz (PW-8).

Now, the question is, whether the conviction of the appellant under Section 302 of the IPC is justified.

It is quite apparent from evidence available on record particularly injured eyewitness Budhiyaro (PW-3) that the accused/appellant on the fateful day came to the house and started abusing his wife Budhiyaro (PW-3) for not serving food and when his mother Fuleshwari Bai intervened, then he pushed her. It is also established that he caused some injuries by stick (hard and blunt object). Nothing has been brought on record to show that the appellant intended to cause death of Fuleshwari Bai. In fact, the appellant was angry that his wife Budhiyaro, who was not serving food to him and on that pretext, he abused and assaulted his wife and when deceased Fuleshwari Bai came to intervene, then he also pushed/assaulted Fuleshwari Bai by stick. As such, there was no intention at all alleged and proved by the prosecution for causing death of Fuleshwari Bai. Even otherwise, there is no evidence on record that the appellant had intention to cause such bodily injury as is likely to cause death or with the knowledge that he is likely by such an act to cause death as fracture was found in right temporal bone.

Considering the fact that injuries were inflicted on 15.5.2011 and FIR was lodged on 17.5.2011 and she was medically examined on that day and thereafter she died on 20.5.2011, we are of the considered opinion that the prosecution has failed to prove that the accused had intention to cause death or the accused had knowledge that death was likely to result in the circumstances in which the injuries were caused by him to the deceased.

In that view of the matter, conviction of the appellant under Section 302 of the IPC is set-aside and he is convicted under Section 326 of the IPC. Considering the grievous hurt caused by the appellant herein to the deceased by hands, fists and also by stick, we sentence to the period already undergone by him i.e. 30.6.2011 till today i.e. more than 10 years and 9 months. The trial Court has also convicted the appellant both under Sections 323 and 324 of the IPC. Considering the aforesaid fact, we set-aside his conviction under Section 323 of the IPC. However, his conviction under Section 324 of the IPC is maintained. He be released forthwith, if not required in any other case.

The criminal appeal is partly allowed to the extent indicated herein-above.