Chattisgarh High Court
Gohar Singh Gond vs State Of Chhattisgarh on 8 November, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1857 of 2018
Gohar Singh Gond S/o Dhaniram Gond, aged about 36
years, R/o Imlipara Kot, P.S. Surajpur, District
Surguja, Chhattisgarh
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Aarakshi Kendra Surajpur,
District Sarguja (CG)
Respondent
For Appellant: Mr.Vipin Singh, Advocate
For Respondent/State: Mr.Animesh Tiwari, Deputy Advocate
General
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Arvind Singh Chandel
Judgment on Board
(08.11.2021)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC
is directed against the judgment of conviction recorded
for offence punishable under Section 302 of the IPC and
sentence awarded under Section 302 of the IPC i.e.
imprisonment for life and fine of ₹100/, in default of
payment of fine, to further undergo rigorous
imprisonment for five days by the Second Additional
Sessions Judge (F.T.C.), Surajpur by the impugned
judgment dated 22.11.2006 in Sessions Trial No.84/2006.
2. Case of the prosecution, in brief, is that on
24.11.2005 at 8 a.m. the appellant assaulted Pawaro Bai
(since deceased) on her head / back part of her body by
bamboostick by which she suffered grievous injuries
and succumbed to death and thereby committed the
offence under Section 302 of the IPC.
3. Further case of the prosecution is that on 24.11.2005
Heera Lal (PW5), son of deceased Pawaro Bai, lodged
merg on 24.11.2005 vide Ex.P11 at Police Station
Surajpur and thereafter F.I.R. (Ex.P4) was registered
on the same day at 15.30 p.m. against one Gohar Singh,
appellant herein for offence under Section 302 of the
IPC in Crime No.302/2005. Investigating officer
M.S.Rathiya (PW11) proceeded for the scene of
occurrence and after summoning the witnesses vide
Ex.P/1, prepared inquest of dead body of the deceased
vide Ex.P/2. Statements of the witnesses were recorded
under Section 161 of the CrPC. Dead body of the
deceased was sent for postmortem to Primary Health
Center, Surajpur, where Dr.Smt.Sashi Tirki (PW9)
conducted postmortem on body of deceased Pawaro Bai and
submitted her report vide Ex.P9 in which she noticed
five injuries, out of which, four injuries were simple
in nature and injury No.5 was grievous in nature, which
was sufficient to cause death. Cause of death was shock
due to excessive hemorrhage and death was homicidal in
nature. The appellant was arrested by investigating
officer M.S. Rathiya (PW11) and on his memorandum
statement Ex.P6, bamboostick was recovered from the
appellant vide Ex.P7 in presence of Hiran Singh and
Hardev Narayan (PW6). Patwari Amresh Kumar Singh
(PW12) also prepared spot map vide Ex.P14 and
panchnama vide Ex.P15. After completion of
investigation, chargesheet was filed against the
appellant / accused and it was committed to the trial
Court / Court of Session. The appellant herein abjured
the guilt and entered into defence.
4. In order to bring home the abovestated offence, the
prosecution examined as many as 12 witnesses and
exhibited 16 documents, whereas the accused / appellant
examined 3 defence witnesses in his support.
5. The trial Court after appreciating oral and documentary
evidence available on record, by its judgment dated
22.11.2006, convicted the appellant for offence under
Section 302 of the IPC and sentence him as
aforementioned, against which, this criminal appeal has
been preferred by the appellant / accused.
6. Mr.Vipin Singh, learned counsel for the appellant /
accused, would submit that the prosecution witnesses
particularly Silochani (PW2) and Smt.Bahalo Bai (PW3)
both are daughtersinlaw of deceased Pawaro Bai and
thereby they are interested witnesses. Similarly, Heera
Lal (PW5) is son of deceased Pawaro Bai. All being
interested witness, their testimonies could not have
been relied upon to base conviction for offence under
Section 302 of the IPC. Even otherwise, Silochani
(PW2) and Smt.Bahalo Bai (PW3) have clearly stated
that they have not seen the appellant assaulting the
deceased. Therefore, conviction recorded and sentence
awarded is bad and liable to be setaside.
Alternatively, he would submit that the deceased was
aged about 55 years & weak woman and since she was
abusing the appellant, therefore, the appellant is said
to have assaulted the deceased and four injuries were
simple in nature and are said to have been caused on
back side of body of the deceased and only one injury
is said to have been caused on head of the deceased.
Considering the nature of injuries, it can safely be
inferred that there was no intention to cause death.
Even otherwise, offence under Section 302 of the IPC is
said to have been found proved by this Court, it would
fall within the ambit of Section 304 PartII of the
IPC. The appellant is in jail since 26.11.2005 i.e.
more than fifteen years. Therefore, sentence to the
period already undergone be awarded and he be released
by granting the appeal in part.
7. On the other hand, Mr.Animesh Tiwari, learned Deputy
Advocate General, for the respondent / State, while
opposing the submissions made by learned counsel for
the appellant, would submit that learned trial Court
has fairly and objectively considered the testimonies
of Silochani (PW2) and Smt.Bahalo Bai (PW3) and
rightly reached to the conclusion that the deceased was
assaulted by the appellant by which she suffered
grievous injury on her head as opined by Dr.Smt.Shashi
Tirki (PW9) and succumbed to death and has rightly
convicted the appellant under Section 302 of the IPC.
While replying other submission, Mr.Aninesh Tiwari,
learned Deputy Advocate General, would submit that
since the appellant caused injury on head of the
deceased, which is vital part of the body, particularly
injury No.5, it cannot be held that there was no
intention to cause death and it is not the case where
conviction of the appellant can be converted for
offence under Section 304 PartII of the IPC, as such,
the appeal deserves to be dismissed.
8. I have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and
also went through the records with utmost
circumspection.
9. Conviction of the appellant is solely based on the
testimonies of eyewitnesses Silochani (PW2) and
Smt.Bahalo Bai (PW3). As per prosecution case, on
24.11.2005 at about 8 a.m. the appellant herein
assaulted deceased Pawaro Bai by bamboostick, which
was seized from him vide Ex.P7, by which she suffered
five injuries, out of which, four were simple in nature
and one injury was grievous in nature, by which she
died.
10. The trial Court has convicted the appellant herein for
the aforesaid offence resting his conviction on the
basis of testimonies of Silochani (PW2) and Smt.Bahalo
Bai (PW3), daughtersinlaw of deceased Pawaro Bai. It
is admitted fact on record that cattles owned by
deceased Pawaro Bai had grazed the agricultural field /
crops of the appellant and on that account, the
appellant had came to the house of Pawaro Bai and some
quarrel took place 45 days prior to the date of
incident. Thereafter on 24.11.2005 again deceased
Pawaro Bai was abusing the appellant herein and in that
event, the appellant came to the house of the deceased
and assaulted her by bamboostick, by which she
suffered four injuries on her back portion and one
injury on her head, which was grievous in nature and
sufficient to cause death. The trial Court has further
held that injuries were caused by the appellant and
relied upon the testimonies of Silochani (PW2) and
Smt.Bahalo Bai (PW3) and taken into consideration the
medical evidence by Dr.Smt.Shashi Tirki (PW9) came to
the conclusion that death of deceased Pawaro Bai was
homicidal in nature. The said finding has not been
seriously disputed by learned counsel for the appellant
herein. Even otherwise, considering the testimony of
Silochani (PW2), who has clearly stated that on the
date of incident the appellant came to the house of the
deceased and assaulted her and at that time, she and
her sisterinlaw (jethani) Smt.Bahalo Bai (PW3) were
present and even in crossexamination she has clearly
stated that she has seen the appellant assaulting the
deceased. Similarly Smt.Bahalo Bai (PW3) of her
examinationinchief as well as in crossexamination
has maintained her version that she has seen that the
appellant has assaulted the deceased by bamboostick,
as such, the fact that the appellant has assaulted the
deceased by bamboostick by which she suffered injuries
and died is duly established. Merely because Silochani
(PW2) and Smt.Bahalo Bai (PW3) are closely related to
the deceased, their testimonies cannot be discarded,
which is duly supported by Dr.Smt.Shashi Tirki (PW9),
as such, it is duly established that death of deceased
Pawaro Bai was homicidal in nature and finding in this
regard by the trial Court is hereby affirmed.
11. Now coming to the submission of learned counsel for the
appellant that since there was no intention to cause
death of deceased Pawaro Bai, therefore, conviction of
the appellant under Section 302 of the IPC can be
converted to Section 304 PartII of the IPC.
12. It is not in dispute as noticed hereinabove that
cattles owned by deceased Pawaro Bai had grazed the
agricultural field / crops owned by the appellant and
for which some quarrel took place between the appellant
and the deceased 45 days prior to the date of incident
and thereafter on 24.11.2005 the deceased was sitting
in her home and abusing the appellant herein, then the
appellant came there and caused five injuries and as
per medical evidence of Dr.Smt.Shashi Tirki (PW9),
four injuries were simple in nature and injury No.5
being in head was grievous in nature, which was
sufficient to cause death. Dr.Smt.Shashi Tirki (PW9)
has clearly noticed irregular swelling blackish in
colour on her upper part of upper occipital region
extending upto the vault of scalp. She also found
subdural heamotoma in brain and that injury was caused
by hard and blunt object and injury is sufficient to
cause death.
13. The fact remains that on account of having been caused
four injuries on back portion of body of the deceased
by the appellant and one injury on head by which she
succumbed to death, the question is whether the
appellant had any intention to cause death of the
deceased as noticed hereinabove.
14. The total life of the dispute between the appellant and
the deceased was 45 days prior to the date of
incident. Admittedly, cattles owned by the deceased had
grazed the agricultural field / crops owned by the
appellant herein, for which some quarrel took place
between them and after 45 days of that quarrel, the
deceased Pawaro Bai was again abusing the appellant,
which was overheard by the appellant, then he came to
the house of the deceased and on sudden provocation, he
caused four injuries on back portion of her body by
bamboostick and one injury on her head by which she
suffered grievous injuries and died thereafter.
15. At this stage, it would be appropriate to notice
Section 304 of the IPC, which states as under:
"304. Punishment for culpable homicide not
amounting to murder.--Whoever commits culpable
homicide not amounting to murder shall be
punished with imprisonment for life, or
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine, if the act by which the death is
caused is done with the intention of causing
death, or of causing such bodily injury as is
likely to cause death,
or with imprisonment of either description
for a term which may extend to ten years, or with
fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but
without any intention to cause death, or to cause
such bodily injury as is likely to cause death."
To make out an offence punishable under Section 304
Part II of the IPC, the prosecution has to prove the
death of the person in question and such death was
caused by the act of the accused and that he knew that
such act of his is likely to cause death, but there
should not be intention to cause death.
16. In the instant case, though bamboostick blow was
caused by the appellant to the deceased who was infirm
and weak woman aged about 55 years, but four blows were
caused on back portion of her body and all were simple
in nature and incidentally, one blow was caused on her
head and head injury was grievous in nature, which was
sufficient to cause death and as such, it can safely be
inferred that causing injury by bamboostick
particularly one blow on head was sufficient to cause
death, but considering the fact that there was no
previous enmity between them except the dispute which
was remained only 45 days for grazing cattles on the
field owned by the appellant, single blow on head came
to be caused by the appellant and further considering
that deceased Pawaro Bai was weak and infirm woman, we
are of the considered opinion that we are unable to
hold that there was intention on the part of the
appellant to cause death of deceased Pawaro Bai though
he knew that it was likely to cause death, as such, it
is the case where conviction of the appellant herein
would fall within the meaning of PartII of offence
under Section 304 of the IPC.
17. Accordingly, conviction of the appellant under Section
302 of the IPC is hereby setaside and instead thereof,
he is convicted for offence under Section 304 Part II
of the IPC. Since the appellant is in jail from
26.11.2005 i.e. for more than fifteen years, we award
the sentence to the period already undergone by him.
The appellant is in jail, he be released forthwith, if
not required in any other case.
18. The criminal appeal is allowed in part to the extent
indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Arvind Singh Chandel)
Judge Judge
B/
