Shiv Prasad Dhruw vs State Of Chhattisgarh

The instant appeal has been preferred by the accused against the judgment dated 30.10.2012 passed by the 5 th Additional Sessions Judge, Bilaspur

in Sessions Trial No.25 of 2012, whereby the accused has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo

imprisonment for life and pay fine of Rs.100 with default stipulation.

According to the case of prosecution, on 19.11.2011 at about 7 p.m., deceased Naresh Nut and Rajkumar (PW13) were consuming liquor in the

house of Rajkumar (PW13). At that time, the Appellant came there and he also demanded liquor from them. On replying by Rajkumar (PW13) that

the liquor is finished, the Appellant assaulted him by his hands and fists. The deceased asked the Appellant why he assaulted a weak person and tried

to intervene. On this, the Appellant assaulted the deceased with the help of a Tabbal. As a result of the assault, the deceased sustained grievous

injuries on head. He was taken to the hospital where he died during the course of treatment. On the basis of memorandum of the hospital, morgue

intimation (Ex.P9) was registered. After morgue inquiry, First Information Report (Ex.P15) was registered. Statements of witnesses were recorded

under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed against the Appellant. The Trial

Court framed charge against him.

To rope in the Appellant, the prosecution examined as many as 14 witnesses. In examination under Section 313 of the Code of Criminal Procedure,

the Appellant denied the guilt and pleaded innocence. No witness was examined in his defence.

On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of

this judgment. Hence, this appeal.

Learned Counsel appearing for the Appellant submits that the Appellant has been wrongly convicted by the Trial Court. The conviction is based

upon the statements of eyewitnesses Rajkumar (PW13) and Shantibai (PW14), but, there are material contradictions and omissions in their statements

and, therefore, their statements are not reliable and thus, the conviction of the Appellant is not sustainable.

Learned Counsel appearing for the State, opposing the argument advanced by Learned Counsel appearing for the Appellant, supported the

impugned judgment of conviction and sentence. It is submitted that the statements of Rajkumar (PW13) and Shantibai (PW14) are reliable and

Shakunbai (PW3) has also corroborated the prosecution case. It is submitted that the Trial Court has rightly convicted the Appellant.

We have heard Learned Counsel appearing for the parties and perused the statements of the witnesses and other evidence available on record of

the Trial Court with due care.

Post mortem examination over the dead body of Naresh Nut was conducted by Dr. Dharmendra (PW12) on 21.11.2011. He gave post mortem

report (Ex.P22), according to which, the deceased had sustained a fracture on the skull of 13 cms. length. A sub-dural hematoma was present in the

occipital region. As reported by Dr. Dharmendra (PW12), cause of the death was cardio respiratory failure as a result of coma due to the head

injuries.

As regards the incident, both the eyewitnesses Rajkumar (PW13) and Shantibai (PW14) deposed that at the time of incident, deceased Naresh Nut

and Rajkumar (PW13) were consuming liquor in the house of Rajkumar (PW13). The Appellant came there and demanded liquor. When it was told

by Rajkumar (PW13) that liquor was finished, the Appellant first assaulted Rajkumar (PW13) by his fists. It is further deposed that when the

deceased asked the Appellant why he assaulted a weak person and asked him to assault him, the Appellant assaulted the deceased with the help of a

Tangiya. As a result of the assault, the deceased sustained injuries on head. Shantibai (PW14), who is wife of Rajkumar (PW13) has also supported

the statement of Rajkumar (PW13) and categorically deposed that she witnessed the incident. Though there are some contradictions and omissions in

the statements of Rajkumar (PW13) and Shantibai (PW14), they are not material. On the point of assault made by the Appellant on the deceased with

a Tangiya, both the eyewitnesses Rajkumar (PW13) and Shantibai (PW14) remained firm during their cross-examination. Shakunbai (PW3), wife of

the deceased also deposed that when she reached the house of Rajkumar (PW13), at that time, she saw that her husband/the deceased was suffering.

Then her husband was taken to the hospital. In the hospital, Rajkumar (PW13) told her that the deceased was assaulted by the Appellant with a

Tangiya. The above statement of Shakunbai (PW3) is also not rebutted during her cross-examination.

On a minute examination of the statements of Rajkumar (PW13), Shantibai (PW14) and Shakunbai (PW3), it is well established that the Appellant

assaulted the deceased with the help of a Tangiya and as a result of the assault the deceased sustained injuries on head and later on he died during the

course of treatment. Though Dr. Dharmendra (PW12), who conducted post mortem examination over the dead body of the deceased, has not stated

nature of the death in his report (Ex.P22), from the statements of Rajkumar (PW13), Shantibai (PW14) and Shakunbai (PW3) it is well established

that nature of the death was homicidal.

From the statements of eyewitnesses Rajkumar (PW13) and Shantibai (PW14), it is clear that initially the deceased and Rajkumar (PW13) were

consuming liquor and at that time the Appellant came to them and asked for liquor from them. When they denied availability of liquor, the Appellant

first assaulted Rajkumar (PW13). Then, on being asked by the deceased from the Appellant why he assaulted a weak person and asked him to fight

with him, the alleged incident took place in the heat of passion upon a sudden quarrel. We are of the considered view that the act committed by the

Appellant is covered by Exception 4 of Section 300 of the Indian Penal Code.

Considering the facts of the case and the evidence adduced by the prosecution, it is established that the injuries suffered by the deceased were not

caused by the Appellant with an intention to cause his death, but, were caused with the knowledge that the same could cause his death. Therefore, in

our considered opinion, the act committed by the Appellant falls within the ambit of Section 304 Part II of the Indian Penal Code. Hence, conviction of

the Appellant is altered from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code.

The Appellant is in jail since 28.11.2011 and has completed jail sentence of more than 10 years. For the offence under Section 304 Part II of the

Indian Penal Code, he is sentenced with the period of imprisonment already undergone by him. Sentence of fine of Rs.100 is also imposed upon him.

In default of payment thereof, he shall be liable to undergo additional rigorous imprisonment for 1 month. If any amount has already been deposited

towards fine, the same shall be adjusted against the fine imposed today.

Consequently, the appeal is allowed in part to the extent indicated above.