Amit Ram vs State Of Chhattisgarh
2021 Latest Caselaw 3551 Chatt

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                                                              NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

               Judgment Reserved on : 16.11.2021

               Judgment Delivered on : 08.12.2021

                        CRA No.1480 of 2018
     Amit Ram, S/o- Lohar Sai Painkra, Aged about- 18 years 6
     months, R/o- Village Amartha, Police Station- Shankergarh,
     District- Balrampur (C.G.)                   ----     Appellant
                                Versus
     State of Chhattisgarh, Through- Police Station Sanna, District-
     Jashpur (C.G.)                                 ---- Respondent

     For Appellant              : Shri S. P. Sahu, Advocate

     For Respondent/State      : Shri Chitendra Singh, P.L.

           Hon'ble Shri Justice Gautam Chourdiya
                       CAV Judgment

1. This appeal is filed under Section 374 (2) of Code of

Criminal Procedure, 1973 against the judgment of conviction

and order of sentence dated 28.06.2018, passed by the

Sessions Judge, Jashpur, District- Jashpur (C.G.) in Session

Case No. 17/2018, whereby the appellant Amit Ram stands

convicted and sentenced as under:-

Conviction Sentence

Under Section 304 part-II R.I. for five years with fine of Rs. of Indian Penal Code 1,000/- and in default of payment of fine amount further R.I. for three months.

2. As per prosecution case, PW/1 Nandkumar Painkra,

appellant Amit Ram and deceased Dhaneshwar were

working under Parmanand Chouhan and would operate the

swing of Parmanand Chouhan. Prior to one day of incident

i.e. 25.11.2017 the swing of Parmanand Chouhan was

installed in the fair at village Champa and on the next day

i.e. 26.11.2017 when fair was over and while PW/13

Nandkumar Painkra and the appellant were unbolting the

swing, deceased Dhaneshwar started raising dispute with

them over moblie phone. In this process, the appellant

assaulted the deceased with a club on his head. However,

next morning as the deceased was not feeling well he was

taken to hospital at village Champa and from there he was

taken to Ambikapur Hospital where he died on 27.11.2017.

3. Merg intimation was given by PW/9 Utkarsh Kumar. During

investigation, inquest over the dead body was conducted

vide Ex.P/9 and thereafter, PW/12 Dr. B.C. Painkra

cunducted post-mortem vide Ex.P/17 and notice following

injuries: (i) lacerated wound present over right temporo

parietal region of skull sized 2"x1"x1/2 cm, (ii) abrasion over

right leg, lower portion (front part) sized 1/2"x1" and (iii)

abrasion over left knee joint (front portion) sized 1"x1/2".

4. PW/12 Dr. B.C. Painkra opined the cause of death as coma,

mode of death as subdural haemorrhage due to injury

number 1 and the death was homicidal in nature.

5. Site plan Ex.P/1 and P/15 were prepared, plain and blood

stained soil were seized from the place of occurance and on

the memorandum of appellant No. 1 bamboo club, half

jeans pant & one full shirt were seized vide Ex.P/4. Clothes

of the deceased were also seized vide Ex. P/11. As per

Progress report and Aadhar Card of the appellant were

seized vide Ex.P/12, he was found to be above 18 years of

age on the date of incident. The seized articles were sent to

FSL for chemical examination and report of FSL is Ex.P/6.

According to which, human blood was found on the club and

clothes seized from the accused as well as on the cloths of

the deceased. After recording statements of the witnesses

and completing the investigation charge-sheet was filed

against the appellant u/s 302 of IPC.

6. The trial Court framed charge u/s 302 of IPC against the

appellant, who denied the same and prayed for trial.

7. Prosecution in order to prove its case examined as many as

14 witnesses and statement of the appellant was also

recorded u/s 313 of CrPC where he denied the incriminating

circumstances appearing against him in the prosecution

case, pleaded innocence and prayed for trial. However, no

witness was examined or any evidence aduced by him in his

defence.

8. The trial court, considering overall material available on

record by the impugned judgment convicted and sentenced

the appellant as mentioned in para-1 of this judgment.

9. Learned counsel for the appellant submits that impugned

judgment is per se illegal as the trial Court did not

appreciate the omissions and contradiction in the

statements of the witnesses. The prosecution has failed to

proved its case against the appellant beyond reasonable

doubt. Even memorandum and seizure have not been

proved by PW/1 Firoj Alam and PW/4 Prem Say, they have

also turned hostile and not supported the prosecution case.

10. On the other hand learned State counsel supports the

impugned judgment and submits that trial Court after due

appreciation of the entire oral and documentary evidence on

record has rightly convicted and sentenced the appellant by

the impugned judgment which needs no interference by this

Court.

11. Heard learned counsel for the parties and perused the

material available on record.

12. PW/4 Prem Say, father of the deceased states that he was

informed by his nephew Nandkumar and Vicky that the

deceased is quarreling with the appellant and the deceased

is lying at the place of occurrence, thereafter, he alongwith

Nand Kumar, Vicky and his daughter Phoolvati Bai went to

the place of occurrence where his son Dhaneshwar was

lying and then he was taken to Ambikapur Hospital for

treatment where he died. He states that he was informed by

Nandkumar Painkra that there was quarrel between the

appellant and the deceased over mobile phone and that

appellant himself had informed him that he assaulted the

deceased with club.

13. PW/13, Nandkumar Painkra, has also stated that on the

date of incident, in the night, while he alongwith the

appellant were about to take their dinner, the deceased

came there in drunken condition and inquired about his

mobile on which he told that he was not having the mobile

phone, thereafter, the deceased asked the appellant about

his mobile and appellant expressed his ignorance about the

same. However, after some time the deceased again came

and slapped the appellant but the appellant did nothing and

when the deceased was again trying to assault the

appellant, he accidentally slipped and fell on the stone.

During this, the appellant took up a club lying there and

assaulted the deceased with it on his head and his waist

and fled from there. According to this witness, he lifted the

deceased from the spot and lay him on the bed but the

deceased did not eat anything and slept. Next morning, the

deceased was talking but he was not feeling well. After

some time, the deceased was taken by him to hospital at

Champa and from there he was referred to Ambikapur

hospital. The deceased was taken to Ambikapur hospital by

his father, sister, Parmanand Chouhan and Nandkumar

Painkra where the deceased died during the course of

treatment. In cross examination, he remained firm.

14. PW/1 Firoj Alam and PW/2 Jagdish Yadav witnesses to the

memorandum and seizure, though admitted their signatures

on the said documents but they did not support the

prosecution case. PW/3, S.K. Singh, Senior Scientist Officer

has proved receipt of articles sent by the police for chemical

examination. According to him, he examined the articles and

prepared the FSL report vide Ex.P/6.

15. PW/5, Phoolvati bai, sister of the deceased, states that she

was informed by Nandkumar and Vicky that the deceased

was assaulted by the appellant with club.

16. PW/6, Rudreshwar Say has proved site plan Ex.P/15. PW/7,

L. R. Bhagat, Head Constable assisted in the investigation.

PW/8, Dr. Kapil Kumar Shrivastava had given primary

treatment to the deceased on 27.11.2017 at Primary Health

Centre Champa and then referred him for higher treatments

vide Ex.P/20.

17. PW/11, Gambhir Das Sonwani,Investigating Officer, has duly

supported the prosecution case. PW/12, Dr. BC Painkra

conducted post-mortem on the body of the deceased on

28.11.2017 vide Ex.P/30 and noticed certain injuries as

mentioned in the preceding paragraph. According to him,

cause of death is coma, mode of death is subdural

haemorrhage due to injury number 1 and the death was

homicidal in nature.

18. Considering the statement of the PW/13 Nandkumar Painkra

which remains uncontroverted in cross-examination, it also

finds corroboration from the evidence of autopsy surgeon

Dr. BC Painkra, there is no reason to disbelieve this witness.

There is no omissions and material contradiction in the

statement of PW/13. FSL report Ex.P/6 also supports the

prosecution case, according to which human blood was

found on the clothes of the deceased and the appellant,

human blood was also found on the club which was seized

on the memorandum of the appellant. The defence could not

bring on record anything which could suggest that there was

previous enmity between the appellant and the deceased,

due to which he was falsely implicated in the crime. In these

circumstances, the complicity of the appellant in the crime

stands proved beyond all reasonable doubt. However,

considering the fact that the incident took place between the

appellant and the deceased all of a sudden, over mobile

phone, there was no premeditation on the part of the

appellant to commit crime, he assaulted the deceased with

a club which was lying on the spot itself, the evidence goes

to show that in fact, the deceased was the aggressor as

first he slapped the appellant and while he was again trying

to assault the appellant, out of anger the appellant too

assaulted him with club, the appellant did not act in any

unusual or cruel manner, this Court is of the opinion that the

trail Court was justified in convicting the appellant u/s 304

Part-II of IPC.

19. As regards the sentence, in the matter of Lakshmi Chand

and another Versus State of Uttar Pradesh reported in

(2018) 9 SCC 704 the Hon'ble Supreme Court considering

the fact that the incident took place as the bullocks of the

appellants strayed into the neighbouring compound of the

deceased. Prem Lal who drove them out with a lathi,

appellants with accused Kashmira (since deceased) went to

the house of the deceased Prem Lal, armed with a lathi, iron

rod and knife, assaulted the deceased and when PW/1,

Banarasi, PW2, Omveer and another witnesses Rajendra

Singh intervened, the appellants scampered away from the

spot, considering the act of the appellant, the fact that the

occurrence took place on the spur of the moment, the

assault was not made on a vital part of the body, the

appellant went away upon being challenged, the genesis of

the assault lay in a dispute between neighbors with regard

to strayed cattle, the occurrence had taken place long ago in

1980, reduced the sentence of the appellant No.2 to a

period of two years.

20. In the present case, considering the facts and circumstances

of the case, nature of dispute regarding mobile phone giving

rise to the incident, the incident took place all of sudden in

the heat of passion upon a sudden quarrel without any

premeditation on the part of the appellant, the deceased

was the aggressor, the manner in which the assault was

made by the appellant on the deceased, detention period of

the appellant, the age of the appellant at the relevant time,

there is no criminal antecedent of the appellant, the fact that

the appellant has remained in jail since 21.12.2017 for

about last four years, keeping in view of the judgment of the

Hon'ble Supreme Court in Lakshmi Chand (supra), this

Court is of the opinion that the ends of justice would be

served if the appellant is sentenced to the period already

undergone by him.

21. In the result, the appeal is allowed in part. While maintaining

conviction of the appellant u/s 304 Part-II of IPC, his jail

sentence is reduced to the period already undergone by

him. However, the fine amount with the default sentence as

imposed by the trial Court shall remain intact. The appellant

is reported to be in jail, therefore, he be set at liberty

forthwith if not required in any other case.

Sd/-

(Gautam Chourdiya)

Judge Nadim