Sudama Munda vs State Of Chhattisgarh
2021 Latest Caselaw 3461 Chatt

                                                                              NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No. 1177 of 2016

   • Sudama Munda, S/o Ramlal Munda, Aged About 50 Years R/o Bhadrapara,
     Police Station Lailunga, District Raigarh, Chhattisgarh.

                                                                       ---- Appellant

                                       Versus

   • State Of Chhattisgarh Through Station House Office, Police Station Lailunga,
     District Raigarh, Chhattisgarh.

                                                                    ---- Respondent




       For Appellant             :     Shri Anil Pillai, and Shri Anupam Pandey
                                       Advocates.
       For State/Respondent      :     Shri Ravish Verma, G.A.




                 Hon'ble Shri Justice Arvind Singh Chandel
                               Judgment on Board


03/12/2021


  1.     This appeal has been preferred against the impugned judgment dated

         29.07.2016 passed in S.T. No.130/2015 by the 2 nd Additional Sessions

         Judge, Raigarh, (C.G.) wherein appellant has been convicted and

         sentenced as under :


                    Conviction                            Sentence

             U/s 304 Part-2 of the I.P.C.   R.I. for 10 years and fine of Rs.2,000/-
                                                    with default stipulations.
 2.   In the present case, name of the deceased is Premo Bai. Appellant

     herein, is the husband of the deceased Premo Bai. Kudkuna (PW7) is

     the daughter of appellant and deceased. Facts

of the case, in brief, are

that on 02.07.2015 at around 6:30 PM, deceased Premo Bai was

sleeping her two years old child. At that time, appellant came and

asked for food, upon which, the deceased told the appellant to take

food himself, on which, the appellant being annoyed, hit on the

abdomen of the deceased by foot two-three times due to which she

sustained injuries in her abdomen. She was hospitalized in Community

Health Centre, Lailunga. During course of treatment, on 05.07.2015,

the deceased died. Thereafter, merg was registered and enquest

proceeding was conducted. Post-mortem of the deceased was

conducted by Dr. Manoj Patel (PW1). His report is Ex.P4. Statements

of the witnesses were recorded under Section 161 of Cr.P.C. After

completion of the investigation, a charge-sheet was filed. Trial Court

framed the charge under Section 302 of the I.P.C. To prove the guilt of

the accused/appellant, prosecution has examined as many as 9

witnesses. No defence witness has been examined. Statement of

appellant under Section 313 of the Cr.P.C. was recorded, wherein

accused/appellant has pleaded innocence and false implication in the

matter.

3. On completion of the trial, the trial Court has convicted and sentenced

the appellant as mentioned in first paragraph of this judgment. Hence,

this appeal.

4. Learned Counsel appearing on behalf of the appellant submits that trial

Court has wrongly convicted the appellant without there being sufficient and clinching evidence against him. Judgment of the trial

Court is contrary to the facts and circumstances of the case, therefore,

the case in hand is liable to be set aside. If the entire case of the

prosecution is taken as it is, the alleged act committed by the appellant

fall within the purview of Section 323 of the I.P.C. only, because there

is only one injury sustained by the deceased in her stomach which was

caused by the appellant by his foot. There is no material present on

record which shows that appellant was aware or had knowledge that

by hitting the deceased in the stomach could led to the death of the

deceased in normal course.

5. Per contra, Shri Ravish Verma, learned Counsel appearing for the

State supports the impugned judgment and submits that sentence

awarded by the trial Court is just and proper and requires no

interference.

6. I have heard learned Counsel appearing for the parties, perused the

statement of witnesses and other annexed documents available on

record minutely.

7. There is no dispute on the point that deceased was the wife of the

appellant. Kudkuna (PW7) is the daughter of the appellant and the

deceased and she is the sole eye-witness of the case. In her

examination-in-chief, she has deposed that on the date of incident, a

quarrel took place between her parents i.e. between appellant and

deceased and appellant hit the deceased on her stomach by foot. In

her cross-examination, she has admitted the fact that after hearing the

chaos, she came to the spot. At that time, her mother (deceased) was

lying down. She further admitted the fact that his father (appellant) hit her mother in the state of toxication due to which leg of cot hit on her

stomach and she sustained injury. Firstly, the deceased was medically

examined by Dr. Manoj Patel (PW1) on 04.07.2015. His report is

Ex.P1. According to his report, there was injury found in the front of

abdomen of the deceased which was caused by hard and blunt object.

During examination, it was found that condition of victim was serious

and her blood pressure and pulse were not detected. According to this

witness, death of the deceased occurred on 05.07.2015. Thereafter, he

informed the police about the death of the deceased vide Ex.P3.

During course of investigation, he conducted the post-mortem of the

deceased. According to the post-mortem report of the deceased, large

intestine was found pale and was tore approximately 2 cm in length. As

per the opinion of the Doctor, death of the deceased was due to

septicemic shock. During his cross-examination, in paragraph 6 of this

witness, he had admitted that the injury found in the stomach of the

deceased could have occurred by falling and getting hit on the leg of

the cot but according to this witness, the said injury could be occurred

when getting hit 2-3 times on the leg of the cot. There is nothing on

record which shows that appellant pushed the deceased and she got

hurt 2-3 times on the leg of the cot. Therefore, from the statement of

Kudkuna (PW7), it is well-established that deceased got injured by got

hit on her stomach by foot by the appellant. From the statement of

Kudkuna (PW7), medical report of the deceased i.e. Ex.P1 and post-

mortem report i.e. Ex.P4, it appears that deceased sustained only

single injury on her stomach due to which her large instestine was tore

2 cm in length and the death occurred due to septicemic shock. Since,

appellant has caused single injury in the abdomen of the deceased and as per the statement of Kudkuna (PW7), at that time, appellant

was in the state of toxication, the appellant was not aware or had

knowledge that by hitting the deceased in the stomach, could led to the

death of the deceased in normal course. In my considered opinion, the

act of the appellant does not fall within the purview of Section 304 Part

2 of the Indian Penal Code, but would fall within the purview of Section

323 of the I.P.C only. Accordingly, conviction of the appellant is altered

from Section 304 Part 2 of the I.P.C. to Section 323 of the I.P.C.

8. The maximum sentence prescribed for the offence punishable under

Section 323 of the I.P.C. is one year. It is reported that the appellant is

in jail since 08/07/2015. He be released forthwith, if not required in any

other case.

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

above.

10. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Prakash