Keshav Sahu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal filed by the appellant herein under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 30.9.2013, passed by the learned Additional Sessions Judge, Gariaband in Sessions Trial No.2/2013, by which the appellant herein has been convicted and sentenced as under:-

Conviction

Sentences

Section 302 of the IPC

Imprisonment for life and fine of Rs.500/-, in default, additional rigorous imprisonment for one month

Section 307 of the IPC

Rigorous imprisonment for ten years and fine of Rs.500/-, in default, additional rigorous imprisonment for one month

Section 354 of the IPC

Rigorous imprisonment for two years and fine of Rs.500/-, in default, additional rigorous imprisonment for one month

(All sentences were directed to run concurrently)

Case of the prosecution, in brief, is that on 12.9.2012 at about 2-2.30 p.m. near Mudanala Nursery, village Parsadakala, Police Station Fingeshwar, the appellant caused death of Heera Bai Nishad and thereby committed the offence under Section 302 of the IPC and further outraged the modesty of victim Kumari Domin Nishad and caused severe injuries to her, which were likely to cause her death and thereby committed the offence under Sections 354 and 307 of the IPC. It is further case of the prosecution that on 12.9.2012 at 2-2.30 p.m. deceased Heera Bai Nishad and Domin (PW-2) both were going back to their home after taking bath in floating steam, near Mudanala nursery, village Parsadakala the appellant caught hold of victim Domin (PW-2) and when she protested, then the appellant caused injuries on her body and when deceased Heera Bai Nishad tried to intervene, some altercation took place and deceaded Heera Bai Nishad fell down, thereafter the appellant caught-hold of Heera Bai Nishad and assaulted her by knife by which she suffered grievous injuries. Thereafter, Domin (PW-2) had gone to nearby school and informed them about the incident, in the meanwhile, the accused absconded from the spot. Heera Bai Nishad died instantaneously. Domin (PW-2) was taken to the Community Health Center, Fingeshwar. Merg intimation was registered vide Ex.P-1. Spot map was prepared by investigating officer vide Ex.P-2. Inquest was conducted over the dead body of deceased Heera Bai Nishad vide Ex.P-9. FIR was registered for offence under Section 302 and 307 of the IPC vide Ex.P-3. Dead body of deceased Heera Bai Nishad was sent for postmortem to Community Health Center, Fingeshwar, where Dr.P. Kudesia (PW-13) conducted postmortem vide Ex.P-16 and opined that cause of death was due to excessive bleeding and death was homicidal in nature. Victim Domin (PW-2) was also examined by Dr.P. Kudesia (PW-13) vide Ex.P-7 and found four incised wounds over her body and all injuries were grievous in nature. Pursuant to memorandum statement of the appellant vide Ex.P-12, one knife was recovered from his pocket on production vide Ex.P-14. After due investigation, the police filed the charge-sheet in the Court of Judicial Magistrate First Class, Rajim, who in turn, committed the case to the Additional Sessions Judge, Gariaband for trial in accordance with law. The appellant abjured his guilt and entered into defence that he has not committed any offence and he has falsely been implicated in crime in question.

In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 25 documents. The appellant-accused examined none in his defence and no document has been exhibited in his support.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.9.2013, convicted the appellant herein for offence under Sections 302, 307 and 354 of the IPC and sentenced as aforementioned in opening paragraph of this judgment, against which, this appeal has been preferred by the appellant herein.

Learned counsel for the appellant would submit that Domin (PW-2) has not witnessed the incident as as soon as she suffered injuries she ran away from the spot as per her own version. Therefore, conviction on the basis of statement of Domin (PW-2) is bad in law. He would further submit that so far as knife recovered from possession of the appellant pursuant to his memorandum statement is concerned, only blood has been found on knife, but origin and blood group could not be ascertained. Therefore, conviction of the appellant is not in accordance with law and it is liable to be set aside.

On the other hand, learned State Counsel for the respondent/State would support the impugned judgment and submit that Domin (PW-2) has witnessed the incident and pursuant to memorandum statement of the appellant, knife has been seized in which blood has been found and Domin (PW-2) being eyewitness has clearly supported the case of the prosecution. In that view of the matter, the appeal deserves to be dismissed.

We have heard learned counsel appearing for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.

Conviction of the appellant under Section 302 of the IPC:-

The trial Court relying upon postmortem report (Ex.P-16) which has duly proved by Dr.P. Kudesia (PW-13) has clearly come to the conclusion that death of deceased Heera Bai Nishad was homicidal in nature as the deceased died on account of rupture due to stab wound near liver. As such, the finding recorded by the trial Court that death of deceased Heera Bai Nishad was homicidal in nature is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. We hereby affirm that finding.

The question for consideration would be, whether the appellant is author of the crime or not ?

Domin (PW-2) is eyewitness who has seen the incident. She and her sister (deceased Heera Bai Nishad) both were going back to home after taking bath in floating steam. She has clearly stated in her statement before the Court that they had gone to the field for the purpose of sowing paddy and thereafter coming back to their home after taking bath, then near nursery the appellant came to them and caught-hold of her hands (Domin) and when she protested, the appellant caused injuries on her cheek, hand and stomach, which is apparent from Ex.P-17 duly proved by Dr.P. Kudesia (PW-13). Thereafter, the appellant caught-hold of her sister Heerabai, then she gone to nearby school and shouted for help. She has been subjected to cross-examination. Though she has been declared hostile, but in her cross-examination also, she has stated that the appellant had caught-hold of her sister Heerabai after assaulting her. Furthermore, pursuant to memorandum statement of the appellant vide Ex.P-12, knife has been recovered from his possession vide Ex.P-13, in which blood has been found in FSL report vide Ex.P-11. Furthermore, as per postmortem report (Ex.P-16), eleven stab injuries have been noticed on the body of the deceased and all can be caused by knife, which has been recovered from possession of the appellant in which blood has been found and the fact of catching by the appellant to deceased Heera Bai Nishad has been established by Domin (PW-2). As such, as per statement of Domin (PW-2) and statement of Dr.P. Kudesia (PW-13) and postmortem report (Ex.P-16) in which stab injuries have been noticed on the body of the deceased and knife has been recovered from possession of the appellant pursuant to his memorandum statement in which blood has been found in FSL report (Ex.P-11) though it has not been said to be human blood or origin and blood group could not be ascertained, but in view of oral, medical and circumstantial evidence available on record, we are of the considered opinion that the trial Court is absolutely justified in convicting the appellant for offence under Section 302 of the IPC. We hereby affirm the conviction of the appellant under Section 302 of the IPC.

Conviction of the appellant under Sections 307 and 354 of the IPC

Considering the statement of Domin (PW-2), conviction of the appellant under Section 354 of the IPC is well merited and is hereby maintained. Domin (PW-2) has suffered four incised wounds vide Ex.P-7 and all injuries were grievous in nature.

The Supreme Court in the matter of Jai Narain Mishra and others v. State of Bihar 1971(3) SCC 762 where four to five persons attacked a man with deadly weapons but causing only three simple and one grievous hurt to the injured by farsa, their Lordships held that offence under 326 of the IPC would be made out and held as under in paragraph 11 of the report: -

“11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C. and sentenced to 5 years rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1½" x ½” x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307, I.P.C., but Section 326, I.P.C. His conviction, therefore, under Section 307, I.P.C. is set aside and we convict him under Section 326, I.P.C. His sentence of 5 years rigorous imprisonment will have to be reduced accordingly to 3 years rigorous imprisonment.”

Reverting to the facts of the case in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court for offence under Section 307 of the IPC, it is quite vivid that in this case, the appellant has used knife and caused incised wounds to Domin (PW-2) and most of the injuries were caused on non-vital parts of the body, but considering the nature of injuries and in view of the decision of the Supreme Court in Jai Narain Mishra (supra), where three injuries were of simple nature though deadly weapons were used and the fourth injury, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid, their Lordships of the Supreme Court altered conviction from Section 307 of the IPC to Section 326 of the IPC. Therefore, having regard to the manner in which the offence is committed and other attending circumstances as noticed herein-above, we are of the considered opinion that offence under Section 307 of the IPC is not made out and the learned Additional Sessions Judge is absolutely unjustified in convicting the appellant for offence under Section 307 of the IPC, it is the offence under Section 326 of the IPC that is made out against the appellant. Accordingly, conviction and sentence imposed upon the appellant under Section 307 of the IPC are set aside and instead thereof, he is convicted under Section 326 of the IPC and sentenced to undergo rigorous imprisonment for ten years and fine of 500/-, in default, additional rigorous imprisonment for one month.

Accordingly, it is held that conviction and sentences of the appellant under Sections 302 and 354 of the IPC are hereby maintained and his appeal to that extent is dismissed.

Conviction of the appellant under Section 307 of the IPC is altered to Section 326 of the IPC. The criminal appeal is allowed in part to the extent indicated herein-above.