1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 746 of 2014
Gendee @ Guruwaru S/o Bodhram Uraon, Aged 50
years, Profession Labourer, R/o Uraonpara
Gharghoda, Thana Gharghoda, Distt. Raigarh,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Gharghoda, Distt. Raigarh, Chhattisgarh.
Respondent
For Appellant : Mr. Alok Kumar Dewangan, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
22/03/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 13/06/2014 passed by learned Sessions Judge, Raigarh in Sessions Trial No. 16/2012 whereby the appellant/accused has been convicted for offence under Section 302 of the IPC and he has been 2 sentenced to life imprisonment and fine of Rs. 5,000/ in default of payment of fine amount, additional R.I. for one year.
2. The case of the prosecution, in brief, is that on 09/08/2011 at 9:00 PM at Village Uraon para Gharghoda, Distt. Raigarh, the appellant herein assaulted Shankar Uraon with an axe and caused grievous injuries in his neck on account of which he succumbed to death and the appellant/accused, thereby, committed the offence under Section 302 of IPC.
3. Further case of the prosecution is that, on 09/08/2011 at about 8:30 PM, Shankar Uraon was sitting with the appellant herein when Heerabai, appellant's wife, came and started abusing Shankar Uraon pursuant to which he chased to kill her with a wooden pole and at the same time, the appellant ran behind Shankar Uraon with an axe and after pushing him to the ground hit his neck with the axe 56 times on account of which Shankar Uraon suffered grievous injuries and succumbed to death. The said incident was reported by the son of Shankar Uraon namely Jyotish Uraon (P.W.2) to Police Station Gharghoda and First Information Report (Ex. P/4) 3 was lodged against the appellant/accused for offence punishable under Section 302 of IPC on the basis of which merg intimation (Ex. P/5) was registered and spot map (Ex. P/6) was prepared. Thereafter, summons were issued to the witnesses under Section 175 of CrPC (Ex. P/8) and after preparing inquest report (Ex. P/9), the dead body of deceased Shankar Uraon was sent for postmortem (Ex. P/15A) to Community Health Centre, Gharghoda wherein the postmortem was conducted by Dr. S.R. Painkra (P.W.6) and the report has been submitted vide Ex. P/15. Blood stained soil as well as wooden pole were seized from the spot (Ex. P/10) and thereafter, statements of the witnesses were recorded. Pursuant thereof, the appellant/accused was taken into custody and on the basis of his memorandum statement (Ex. P/11), axe was seized (Ex. P/12) and the clothes worn by the appellant/accused at the time of the incident as well as by the deceased were also collected (Ex. P/13) and thereafter, all the seized articles were sent for chemical analysis and the F.S.L. report has been filed as Ex. P/24. After due investigation, the appellant/accused was chargesheeted for offence under Section 302 of IPC which was committed to the Court of Session 4 Judge, Raigarh for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.
4. In order to bring home the offence, prosecution examined 9 witnesses and brought into record 24 documents. Statements of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.
5. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant/accused and awarded sentence as mentioned hereinabove against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence.
6. Mr. Alok Kumar Dewangan, learned counsel for the appellant/accused, would submit that prosecution has failed to prove the offence against the appellant beyond reasonable doubt as Bholu Uraon (P.W.5), who is said to be eyewitness, has not really witnessed the incident and so far as circumstantial evidence is concerned, chain of circumstances are not established to point out that the aforesaid offence has been committed by 5 the appellant/accused. He would alternatively submit that at the most, appellant's case would fall under Section 304 Part I or Part II of IPC as appellant did not have any intention to kill deceased Shankar Uraon and the assault came to be made because of a pity issue and the appellant is in jail since 11/08/2011, as such, his sentence reduced to the period already undergone.
7. Mr. Sudeep Verma, learned State counsel, would support the impugned judgment of conviction and submit that the manner in which the appellant/accused has caused three injuries on the neck of deceased Shankar Uraon with an axe which has also been recovered on the basis of memorandum statement of appellant and further taking consideration of the fact that as per the FSL report (Ex. P/24), blood has been found on the axe as well as on the clothes of the appellant/accused, it cannot be held that he is not guilty for offence under Section 302 of IPC, as such, the instant appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival submissions made herein 6 above and went through the records with utmost circumspection.
9. The first question for consideration would be, whether the death of deceased Shankar Uraon was homicidal in nature ?
10. The trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/15) wherein Dr. S.R. Painkra (P.W.6), who has conducted the postmortem of deceased Shankar Uraon, has opined that three grievous injuries were found on the neck of the deceased which were incised wounds and blood vessels of his neck were severed on account of which deceased Shankar Uraon died due to hypovolemic shock as a result of excessive bleeding. It has further been stated that his death is homicidal in nature. Moreover, the fact that the death of deceased Shankar Uraon was homicidal in nature has also not been seriously disputed by learned counsel for the appellant. As such, the finding recorded by the trial Court that death of Shankar Uraon is homicidal in nature is hereby affirmed.
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11. This finding brings us to the next question which is, whether the death of deceased Shankar Uraon was caused by the appellant herein ?
12. Prosecution has cited Bholu Uraon (P.W.5) as eyewitness. He has stated in paragraph 1 of his statement that when he was returning from the shop, he found deceased Shankar Uraon lying on the ground. Thereafter, he went and informed about the same to Jyotish Uraon, son of Shankar Uraon, and when both of them returned to the place where Shankar Uraon was lying, the appellant/accused was standing there holding an axe. At this stage, Bholu Ram (P.W.5) was declared hostile and he was asked leading questions by the Additional Public Prosecutor wherein he has stated that he has not witnessed the incident but in his crossexamination, in paragraph 9, he has admitted to the extent that though he has not witnessed the incident but he has seen the appellant standing in the spot of the incident holding an axe but in paragraph 10 he has refuted the fact that he has not seen the incident.
13. Pursuant to the memorandum statement (Ex. P/11) of the appellant herein, axe was recovered and it was sent for chemical analysis. Similarly, the 8 clothes worn by the deceased as well as the by the appellant/accused were also sent for chemical analysis and according to the FSL Report (Ex. P/24), blood has been found on the axe as well as on the clothes of the appellant/accused.
14. Learned counsel for the appellant/accused has submitted that since the FSL report does not disclose that human blood was found in the said articles, therefore, it cannot be held on the basis of the FSL report that appellant/accused has committed the murder of deceased Shankar Uraon. However, in the matter of Balwan Singh v. State of Chhattisgarh and Another 1, their Lordships of the Supreme Court have summarized the law in this regard particularly failure to establish origin of blood as being of human origin and/or its blood group and have held in paragraphs 22 and 23 as under : "22. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, depending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered agains the accused At the same time, as mentioned above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items of recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account 1 (2019) 7 SCC 781 9 of the time lapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan2, where one of us (Mohan M. Shantanagoudar, J.) had the occasion to author the judgment, this Court, relying on State of Rajasthan v. Teja Ram3, had held that the failure to determine the blood group of the bloodstains collected from the scene of offence would not prove fatal to the case of the prosecution. In Prabhu Dayal case, although the FSL report could not determine the blood group of the bloodstains on account of disintegration, the report clearly disclosed that the bloodstains were of human origin, and the chain of circumstantial evidence was completed by the testimonies of the other witnesses as well as the reports submitted by the ballistic experts and the forensic science laboratory regarding the weapon used to commit murder.
23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."
15. Reverting to the facts of the case in light of the principle of law laid down by their Lordships of Supreme Court in Balwan Singh (supra), it is quite vivid that in the instant case, blood stained axe as well as clothes of the 2 (2018) 2 SCC 127 3 (1999) 3 SCC 507 10 appellant/accused were recovered and they were sent for chemical analysis. The FSL report (Ex. P/24) shows that blood was found on the said articles and though it has not been established that the said blood is of human origin but the benefit of doubt cannot be given to the appellant/accused herein. Moreover, it is not a case where the appellant/accused has pleaded a defence or has alleged mala fides on the part of the prosecution, or accused the prosecution of fabricating the evidence to wrongly implicate him in the crime in question. It has neither been questioned by the appellant/accused that the investigation carried out by the Police is tainted, therefore, though the blood found on the seized articles (axe and appellant's clothes) has not been proved to be of human origin but that is not fatal to the prosecution. Even otherwise, the presence of the appellant/accused in the place of incident holding an axe has been established by the testimonies of Jyotish Uraon (P.W.2), Bholu Ram (P.W.5) and Karmela (P.W.7).
16. At this stage, the argument of learned counsel for the appellant/accused that the present case would fall within Exception 4 of Section 300 of IPC has to be noticed. It is the 11 case of the prosecution that appellant was sitting with deceased Shankar Uraon when suddenly appellant's wife Heerabai came and started abusing Shankar Uraon on account of which he chased her to kill with a wooden pole, but the appellant came behind him with an axe and caused injuries to Shankar Uraon on account of which he succumbed to death. The entire incident happened without premeditation as the appellant/accused and deceased Shankar Uraon, both were having good relations, and they were sitting together at the time of the incident and only when appellant's wife Heerabai came and started abusing Shankar Uraon, in the heat of the moment, deceased Shankar Uraon chased appellant's wife with a wooden pole and in turn appellant/accused hit Shankar Uraon with an axe and caused his death. The said incident happened in a sudden fight erupted between the appellant and deceased Shankar Uraon when appellant's wife came and started abusing Shankar Uraon. The appellant/accused caused fatal injuries to Shankar Uraon in the heat of passion upon a sudden quarrel which arose between them and the appellant/accused did not take any undue advantage and did not act in a cruel or unusual 12 manner. As such, we are of the considered opinion that the present case would fall within Exception 4 of Section 300 of IPC.
17. Now, the only question that is left for consideration is, whether the case of the appellant/accused would fall under Section 304 Part I or Part II of IPC ?
18. As per the memorandum statement (Ex. P/11) of the appellant/accused and as noticed hereinabove, at the time of the incident, appellant was sitting with deceased Shankar Uraon when suddenly appellant's wife Heerabai came and started abusing Shankar Uraon on account of which he chased her to kill with a wooden pole, but the appellant came behind him with an axe and hit him in his neck due to which deceased Shankar Uraon suffered three major injuries in his neck and died due to excessive bleeding and hypovolemic shock. The incident was reported to the Police by Jyotish Uraon (P.W. 2) and thereafter, First Information Report (Ex. P/4) has been lodged against the appellant/accused which clearly states that when the deceased Shankar Uraon chased appellant's wife with a wooden pole to kill her, then only the appellant/accused came 13 and assaulted Shankar Uraon with an axe. The wooden pole along with blood stained soil has also been seized from the place of incident vide Ex. P/10. Similarly, in the merg intimation registered by Jyotish Uraon (P.W.2), the incident has been reported in a light manner. It is reported in the First Information Report that appellant/accused as well as deceased Shankar Uraon, both had very cordial relations and on the date of the incident, they were sitting together at Shankar Uraon's house but since appellant's wife Heerabai came on the spot and started abusing Shankar Uraon, he chased her with a wooden pole and in turn, the appellant hit the deceased in his neck with an axe and caused him three grievous injuries and he succumbed to death.
19. A careful perusal of the statement of Dr. S.R. Painkra (P.W.6) who examined the deceased Shankar Uraon would show that there were three major injuries on his neck of about 4.5x0.5x0.5 inches, 4x0.5x1.5 inches and 3.5x0.5x0.5 inches, however, there were no injuries in the other parts of his body including his brain. The cause of death is hypovolemic shock as a result of 14 excessive bleeding and the nature of death is homicidal.
20. The aforesaid evidence would show that there was no enmity between the appellant and the deceased and both had very cordial relations. There was no dispute of any kind between them and the appellant did not come with premeditated mind to kill the deceased Shankar Uraon, but the manner in which three fatal neck injuries have been caused on account of which blood vessels of the neck i.e. vital part of the body, were ruptured and deceased Shankar Uraon died due to excessive bleeding, we are of the opinion that though the appellant's act would come within 'culpable homicide not amounting to murder' but the way in which death is caused, it is done with the intention which is likely to cause death. Therefore, the conviction of the appellant under Section 302 of IPC is converted into Section 304 Part I of IPC and since the appellant is in jail since 11/08/2011 i.e. for more than 10 years, we hereby award the sentence as the period already undergone. The appellant be released from jail forthwith, if not required for any other case. 15
21. Accordingly, the instant criminal appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet