Kartam Deva vs State Of Chhattisgarh

Sanjay S. Agrawal, J

This criminal appeal has been preferred by the accused under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) questioning the legality and propriety of the judgment and order dated 01.07.2015 passed by the Court of learned 2nd Additional Sessions Judge, South Bastar Dantewada in Sessions Trial No.244/2013, whereby the appellant has been convicted for having committed the offence of murder of his wife – Kartam Dule under Section 302 of the Indian Penal Code, 1860 (for short, the IPC) and sentenced to undergo rigorous imprisonment for life and fine of Rs.100/- and, in default of fine, has to suffer additional simple imprisonment of one month.

Briefly stated the case of the prosecution is that on 19.07.2013 at 5.00 pm, the appellant – Kartam Deva has assaulted his wife – Kartam Dule with the aid of axe, owing to the dispute regarding preparation of food. On account of the alleged assault, said Kartam Dule sustained serious injuries on her head and died. A report was lodged by Sodhi Joga, brother of the deceased on 20.07.2013, based upon the information which he received from Kartam Gangi and Sodhi Deva. On the strength of the said report, a merg intimation vide Ex.P.2 was registered and F.I.R. vide Ex.P.1 was also registered on 20.07.2013 by Police Station Dornapal under Section 302 of IPC in connection with Crime No. 10/2013. Inquest of the dead body was conducted on 19.07.2013 vide Ex.P.7 and spot map was prepared vide Ex.P.15. The dead body of the deceased was sent for autopsy on 20.07.2013, which was conducted by Dr.P.N.Shandilya, who opined vide his report (Ex.P.16) that the cause of death was due to shock owing to forceful head injury as right temporal bone of the deceased was fractured which led to brain haemorrhage and excessive loss of blood. The cause of death was thus opined by him to be homicidal in nature. An axe with bloodstained, alleged to have been used, was recovered from the house of the appellant on 20.07.2013 vide seizure memo (Ex.P.5), based upon his disclosure statement made on 20.07.2013. The alleged article along with others were sent for its chemical examination where blood was found on the alleged axe vide F.S.L. report (Ex.P.18). The appellant was arrested and the statement of the witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the commission of offence punishable under Section 302 of IPC and the final report was accordingly submitted by the Investigating Officer before the Judicial Magistrate First Class, Konta, District Sukma, who in turn has committed the case to the Court of Sessions in exercise of the powers enumerated under Section 209 of Cr.P.C. for its trial. The appellant has denied the charges so framed and claimed to be tried.

In order to bring home the guilt of the appellant, the prosecution has examined as many as 11 witnesses and produced 19 documents while the appellant, by taking a plea of alibi, has examined one witness, namely Kavasi Deva (D.W.01) in his defence.

After considering the evidence led by the parties, it was held by the learned trial Court that since the dead body was found in pool of blood at home and as the appellant, who was found to be at home, failed to offer his explanation, as required under Section 106 of the Indian Evidence Act, therefore, the appellant has been held to be the author of the crime in question. In consequence, he has been convicted under Section 302 of IPC and sentenced, as mentioned herein above.

Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant-accused has preferred this appeal.

Learned counsel appearing for the appellant submits that the finding recorded by the learned trial Court convicting the appellant under Section 302 of IPC is apparently contrary to law, inasmuch as, it did not appreciate the evidence in its proper perspective and thereby erred in convicting him as such. It is contended further that even if the prosecution case is accepted as it is, the appellant, at the most, could be convicted under Section 304 Part-II of IPC and prayed for conversion of his conviction under Section 304 Part-II of IPC instead of conviction under Section 302 of IPC.

On the other hand, learned counsel appearing for the State has supported the impugned judgment of conviction and order of sentence as passed by the trial Court.

We have heard learned counsel for the parties and perused the entire record carefully.

From perusal of the record, it appears that the autopsy of the dead body of deceased Kartam Dule was conducted by Dr. P.N.Shandilya (P.W.10), who has submitted his report (Ex.P.16) while opining that the cause of death has occurred due to shock and brain haemorrhage owing to head injury and loss of heavy blood which led to failure of cardio-respiratory and, accordingly observed her death to be homicidal in nature. After due consideration of the said post-mortem report (Ex.P.16), duly supported by the evidence of Dr. P.N.Shandilya, the learned trial Court has rightly arrived at a conclusion that the cause of death of the deceased was homicidal in nature and we accordingly affirm the same.

It is now to be considered as to whether the alleged crime was committed by the appellant – Kartam Deva or not and, if it is found that he is the author of the crime in question, then whether his conviction is liable to be altered to that of Section 304 Part-II of IPC?

Sodhi Joga (P.W.1), who lodged the report, was the brother of the deceased Kartam Dule and according to him, he received the information from the daughter-in-law of the appellant, namely, Kartam Gangi (P.W.4) that his sister was assaulted by the appellant with the aid of axe, owing to which, she died. He was, thus, not an eye-witness of the occurrence of the alleged incident, while Kartam Gangi (P.W.4), who informed him regarding the alleged incident, has, however, turned hostile without supporting the prosecution story.

Kartam Dula (P.W.2) was the cousin of the appellant in whose presence, the appellant has made his disclosure statement vide Ex.P.4, based upon which, the axe, alleged to have been used, was seized from him vide seizure memo (Ex.P.5). But, in evidence, it has been stated by him that nothing was recovered from him in his presence. He has, thus, turned hostile without supporting the prosecution case. Smt. Shanti (P.W.3), daughter of the appellant, however, deposed that she was not aware as to how her step mother Kartam Dule has died. Likewise, Sodhi Masa (P.W.5) and Kartam Muya (P.W.6), who are the brother and brother-in-law of the deceased respectively, were also not aware how she died. These witnesses have also turned hostile without supporting the prosecution case.

Sodhi Deva (P.W.7), who is the son of deceased's brother, has also turned hostile. Sodhi Hinga (P.W.8), who is the brother of the deceased has deposed that the appellant has assaulted the deceased with the aid of axe when a quarrel took place between them with regard to preparation of food. He, however, stated that he has not seen the appellant inflicting the deceased with the axe.

From perusal of the aforesaid testimony of the prosecution witnesses, it appears that none of them have seen the appellant assaulting the deceased - Kartam Dule with the aid of axe and witnesses to the seizure memo (Ex.P.5) have also turned hostile. But, it, however, appears from the statement of Investigating Officer Gourishankar Mahilkar (P.W.11) that a bloodstained axe was recovered vide seizure memo (Ex.P.5) from the house of the appellant and the evidence of this witness could not have been rebutted in his cross-examination. Therefore, it is evident that the alleged axe with bloodstained, used in alleged offence, was recovered from the house of the appellant and based upon the F.S.L. report (Ex.P.18), it was found to be a human blood.

Now, in so far as the evidence of defence witness Kavasi Deva (D.W.1) is concerned, it is, however, difficult to hold that the appellant was not at home at the time of the commission of the offence as he (Kavasi Deva) was not present with the appellant all the time and the trial Court has, therefore, not committed any illegality in holding that the appellant was present at the time of commission of offence. No explanation whatsoever has been offered by him so as to hold that he was not the author of the alleged crime.

The question, which now arises further for determination, would be whether the act on the part of the appellant would fall in Exception 4 to Section 300 of IPC or not. According to reports, i.e., merg intimation (Ex.P.2) and F.I.R. (Ex.P.1) lodged by the complainant Sodhi Joga (P.W.1), vis-a-vis the statement of Sodhi Hinga (P.W.8), it appears that the deceased was assaulted by her husband – Kartam Deva, the appellant herein, when she refused to prepare the food. It is thus evident that the incident occurred in a sudden fight in a heat of passion without any premeditation on part of the appellant. At this juncture, it is to be seen the principles laid down by the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) reported in (2019) 6 SCC 122 wherein it has been observed at para 16 that four ingredients are to be tested for bringing a case within the purview of Exception 4 to Section 300 of IPC, which reads as under :-

“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

While applying the aforesaid principles to the case in hand, it appears, as observed herein above, that there was no premeditation on part of the appellant to cause death of his wife, but, only on account of petty dispute in not preparing the food, the appellant suddenly started quarrelling with her and assaulted her with the aid of axe, pursuant to which, she (deceased) sustained grievous injuries and died. Besides, looking to the injuries sustained by deceased – Kartam Dule, as recorded by Dr. P.N.Shandilya (Ex.P.10) in his post-mortem report (Ex.P.16), which have been inflicted on her head, it appears that the appellant must have had the knowledge that such injuries would likely to cause death. In view thereof, the act of the appellant, would fall in Exception 4 to Section 300 of IPC and since the alleged assault was made without his intention to cause the death of his wife, therefore, his conviction is liable to be altered to that of Section 304 Part-II of IPC instead of Section 302 of IPC, as held by the trial Court. Accordingly, the conviction of him for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside and the appellant is hereby convicted for offence punishable under Section 304 Part-II of IPC and sentenced to undergo 9 years rigorous imprisonment. Rest of the observation of the trial Court in relation to imposition of fine amount is concerned, the same shall remain intact. He shall be set at liberty forthwith, if not required in any other offence.

In view of above, this criminal appeal is allowed in part to the extent indicated herein above.