Shivkumar vs The State Of Chhattisgarh
2021 Latest Caselaw 3536 Chatt

                                                                               NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                        Criminal Appeal No. 713 of 2015

   • Shivkumar, S/o Laxman Bhuihar, Aged About 36 Years, R/o Masjidpara,
       Dharamjaigarh,    Police       Station-   Dharamjaigarh,   District   Raigarh,
       Chhattisgarh.

                                                                       ---- Appellant

                                        Versus

   • The State of Chhattisgarh, Through Station House Office, Police Station-
       Dharamjaigarh, District- Raigarh, Chhattisgarh.

                                                                   ---- Respondent




       For Appellant              :      Shri C.R. Sahu, Advocate.
       For State/Respondent       :      Shri Sudeep Verma, Dy. G.A.




                Hon'ble Shri Justice Arvind Singh Chandel
                Hon'ble Shri Justice Deepak Kumar Tiwari
                              Judgment on Board


Arvind Singh Chandel, J.

07/12/2021

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

30.10.2013 passed by the Additional Sessions Judge, (FTC) District -

Raigarh, (C.G.) in Sessions Trial No.58/2011 wherein appellant has

been convicted and sentenced as under :-

               Conviction                           Sentence

          U/s 302 of the I.P.C.        For life imprisonment and fine of
                                      Rs.2,000/- with default stipulations.

          U/s 323 of the I.P.C.                R.I. for six months.


                       Both sentences to run concurrently.

2. In the present case, name of the deceased is Radha Bai, who is the

wife of the appellant. Sant Kumar (PW11) is the son of the appellant

and the deceased who stay with them. According to the case of

prosecution, on 02.01.2011 at around 8:30 PM, when deceased Radha

Bai returned after attending call of nature, the appellant doubting upon

the character of her wife and for the reason of late return, a quarrel

took place between both of them, and appellant assaulted her with the

help of club. When son of the appellant Sant Kumar (PW11) tried to

intervene, then appellant also assaulted him with club. Then Sant

Kumar called the neighbours where the incident was witnessed by

Parsuram (PW9), Amar Sai (PW1), Rajni Bai (PW2), Gopal Sarthi

(PW6), Fattu. Thereafter, injured Radha Bai was taken to the hospital

and during course of treatment, at about 10:15 PM, she died.

Complainant Sant Kumar (PW11) lodged the First Information Report

(Ex.P16) and merg intimation (Ex.P17). Inquest proceeding was

conducted vide Ex.P1. Post-mortem of the dead body was conducted

by Dr. B.L. Bhagat (PW4). His report is Ex.P9. During course of

investigation, disclosure statement of the appellant under Section 27 of

the Evidence Act was recorded vide Ex.P3. On the basis of the said

report, club was seized vide seizure memo vide 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. To prove the guilt of the accused/appellant,

prosecution has examined as many as 12 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. Shri C.R. Sahu, 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. He further

submits that there was no motive or intention on the part of the

appellant to kill his wife (deceased). Therefore, conviction of the

appellant for the offence under Section 302 of the I.P.C. is bad in the

eyes of law. Material independent witnesses Amar Sai (PW1), Rajni

Bai (PW2), Budhan Sarthi (PW5), Gopal Sarthi (PW6), Banjare Sarthi

(PW7) have not supported the case of the prosecution and have

narrated different story. Therefore, whole prosecution story becomes

suspicious. The trial Court without any material on record, has erred in

convicting the appellant for the alleged offence only on the extraneous

consideration of documents and evidences produced before it. The

judgment of the trial Court is only based upon the assumption and

presumption, which cannot be sustainable for conviction of appellant.

5. Per contra, Shri Sudeep 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. We 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 Radha Bai was the wife

of the appellant and they used to stay together with their son Sant

Kumar (PW11). Sant Kumar (PW11) in his Court statement, has

deposed that on the date of incident at about 12:00 mid-night, a

quarrel took place between his parents i.e. appellant and the deceased

and when he tried to intervene, then appellant assaulted him in his

arms. He also deposed that at that time appellant assaulted the

deceased with the help of a club over her head, due to which she

sustained injuries over her head. He further deposed that at the time of

incident, Amar Sai (PW1), Gultan and 2-3 persons were also present.

However, during cross-examination, this witness has admitted the fact

that there was cordial relationship between his parents (appellant and

deceased). His father (appellant) used to take good care of her mother

(deceased).

8. Amar Sai (PW1) is the neighbour of the appellant. Supporting the

statement of Sant Kumar (PW11), Amar Sai (PW1) has deposed that

on the date of incident, when he was in his house, Sant Kumar (PW11)

came to him and told that appellant was committing marpit with the

deceased, upon which, he (Amar Sai) along with his son Gopal went to

the house of the appellant and saw that appellant was assaulting the deceased with his leg. At that time, deceased was lying faint and she

was in unconscious condition.

9. Rajni Bai (PW2) in her Court statement has also deposed that after

hearing the chaos, she went to the house of the appellant where she

saw that deceased was lying down in the courtyard of the house.

Same statement was also given by Gopal Sarthi (PW6) and he further

deposed that at that time, appellant was standing near the deceased.

10. Dr. B.L. Bhagat (PW4) conducted the post-mortem of the dead body of

the deceased. His post-mortem report is Ex.P9. According to the

report, he found total seven injuries on the dead body of the deceased

out of which three injuries were in the vital parts of the body. Injury

No.5 occurred in the left parietal region of the scalp 6x2 cm in size,

clotted blood in & around wound. Injury No.6 occured in the left

occipital region of scalp 4x2 cm in size, clotted blood in & around

wound. Injury No.7 is a ruptured wound in the back side of the right

ear. As opined by Dr. B.L. Bhagat (PW4), cause of death is due to

syncope as a result of external bleeding and nature of death is found

to be homicidal.

11. On minute examination of the evidence, it makes clear that deceased

sustained total seven injuries on her body out of which three injuries

occurred in the vital parts of the body, two of them were caused in the

parietal region and one behind the right ear and as opined by the

Doctor, the nature of death was homicidal. According to the statement

of Sant Kumar (PW11), who is the real son of the appellant and

deceased, all the above injuries were caused by the appellant with the

help of a club. The above statement of Sant Kumar (PW11) is not duly rebutted. During his cross-examination, he remained firm. The

statement of Sant Kumar (PW11) is duly corroborated by Amar Sai

(PW1). From the statements of Rajni Bai (PW2) and Gopal Sarthi

(PW6), it is established that when they reached at the spot, they saw

that deceased was lying in the injured condition and appellant was

standing near her (deceased). Thus, from the evidence available on

record, it is well-established that it is the appellant who caused death

of his wife Radha Bai with the help of a club.

12. At this stage, Shri C.R. Sahu, learned Counsel for the appellant would

next submit that having regard to the facts and circumstances of the

case, the offence committed by the appellant would fall within one or

the other exception to Section 300 of the I.P.C. and the appellant

would be guilty of committing culpable homicide not amounting to

murder and the act committed by the appellant would fall within the

ambit of Section 304 of the I.P.C. only.

13. Per contra, Shri Sudeep Verma, learned State counsel would submit

that there is total seven injuries out of which three injuries were found

on the vital part of the body of the deceased, therefore, appellant had

knowledge as well as intention to commit murder of his wife

(deceased). Thus, the trial Court has rightly convicted and sentenced

the appellant for the offence punishable under Section 302 of the I.P.C.

14. On perusal of evidence adduced by the prosecution, we find that, in

the present case, the prosecution has failed to prove any motive on the

part of the appellant for committing murder of his wife. It was the case

of the prosecution that appellant used to doubt on character of his wife

(deceased) and due to this, on the date of incident, a quarrel took place between both of them and as a result, appellant committed

murder of his wife. But as admitted by son of the appellant and

deceased i.e. Sant Kumar (PW11), appellant and deceased had

cordial relationship between them and appellant used to take good

care of deceased. There is no material available on record which

shows that appellant used to doubt on the character of his wife

(deceased). On perusal of statement of Sant Kumar (PW11), it reveals

that on the date of incident, in the late night, a quarrel took place

between the appellant and the deceased and appellant assaulted the

deceased with the help of a club. Though, deceased sustained seven

injuries on her body, out of which only three injuries were caused on

the vital part, and none of the injuries are grievous in nature. There is

no motive on the part of the appellant for commission of murder of the

deceased, but appellant has assaulted the deceased with the help of a

club on the vital parts of the body, looking to the above, we are of the

opinion that appellant had the knowledge about the consequences of

the act committed by him and the said act would fall within the ambit of

Section 304 Part 2 of the I.P.C. Accordingly, conviction of the appellant

is altered from Section 302 of the I.P.C. to Section 304 Part 2 of the

I.P.C. Conviction of the appellant under Section 302 of the I.P.C. is set

aside. Conviction of the appellant under Section 323 of the I.P.C. is

affirmed.

15. 10 years is the maximum prescribed punishment for the offence under

Section 304 Part 2 of the I.P.C. It is reported that the appellant is in jail

since 03.01.2011, thereby he has already undergone jail sentence of

10 years in this case. Therefore, he be released forthwith, if not

required in any other case.

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

above.

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

judgment forthwith for information and necessary compliance.

                      Sd/-                                   Sd/-

            (Arvind Singh Chandel)                 (Deepak Kumar Tiwari)
                    Judge                                  Judge




Prakash