Ban Singh vs State Of Chhattisgarh
2021 Latest Caselaw 2884 Chatt

                                                                           NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No.1379 of 2017

   Ban Singh, aged 60 years, son of Kariya Ram, resident of Village Golawand,
   Thana Kondagaon, District Kondagaon, Chhattisgarh
                                                                    ---- Appellant
                                        versus
   State of Chhattisgarh through Police Station House Kondagaon, District
   Kondagaon, Chhattisgarh
                                                                  --- Respondent


   For Appellant                   :       Shri Gajendra Sahu, Advocate
   For Respondent                  :       Shri Sanjay Pathak, Panel Lawyer


                       Hon'ble Shri Justice Goutam Bhaduri
                     Hon'ble Shri Justice Arvind Singh Chandel

                                  Judgment on Board

   Per Arvind Singh Chandel, J.

26.10.2021

1. The instant appeal has been preferred against the judgment dated

5.8.2017 passed by the Sessions Judge, Kondagaon in Sessions

Trial No.356 of 2012, whereby the Appellant has been convicted

and sentenced as under:

Conviction Sentence

Under Section 302 of the Imprisonment for life and Indian Penal Code fine of Rs.200; in default of payment of fine additional rigorous imprisonment for 3 months

2. Prosecution case, in brief, is that deceased Shivlal was step son of

the Appellant. Parvati (PW4) is mother of Shivlal. She, after death

of her first husband Ramdhar, was married with the Appellant. It is

the case of the prosecution that the Appellant was in the habit of

consuming liquor and thereafter quarreling with his wife Parvati

(PW4) and beating her. Shivlal used to inculcate the Appellant and

prevent him to do so. In the morning of 9.2.2010 also, the

Appellant quarreled with Parvati (PW4). Shivlal inculcated the

Appellant. On this, a dispute took place between the Appellant and

Shivlal. Shivlal got annoyed and slapped the Appellant twice. For

this reason, the Appellant assaulted Shivlal with a knife and gave

him a knife blow on the chest. This incident took place in the badi

(fencing) of the house of Shivlal at about 3 p.m. As a result of the

assault, Shivlal shouted and fell down. Subrat (PW1) and Vijay

(PW2) reached on the spot. Subrat (PW1) snatched the knife from

the hand of the Appellant. Injured Shivlal was taken to the police

station where he lodged First Information Report (Ex.P6). Offence

under Section 307 of the Indian Penal Code was registered against

the Appellant. During treatment in the hospital, dying declaration

(Ex.P1) of Shivlal was recorded by Sub-Divisional Magistrate K.C.

Devsenapati (PW3). Shivlal died during treatment in the hospital.

Morgue intimation (Ex.P11) was recorded. Inquest proceeding

(Ex.P3) was conducted. Post mortem examination was conducted

on the dead body of Shivlal by Dr. K.K. Nag (PW11). His report is

Ex.P18 in which it is opined that the cause of death was excessive

haemorrhagic shock and coma which took place due to injury in the

lung. Nature of the death is reported to be homicidal. On

completion of the investigation, a charge-sheet was filed against

the Appellant for the offence punishable under Section 302 of the

Indian Penal Code. The Trial Court framed a charge against him

under Section 302 of the Indian Penal Code.

3. In support of its case, the prosecution examined as many as 11

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellant denied the guilt and pleaded

innocence. No witness was examined in his defence.

4. On completion of the trial, vide the impugned judgment, the Trial

Court convicted and sentenced the Appellant as mentioned in first

paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submits that there is

no eyewitness in this case. The Trial Court has recorded its finding

only on the basis of dying declaration (Ex.P1) of the deceased.

Referring to the statement of Sub-Divisional Magistrate K.C.

Devsenapati (PW3), Learned Counsel argued that the dying

declaration (Ex.P1) does not contain thumb impression or signature

of the deceased and, therefore, it is suspicious document and

conviction cannot be sustained on the basis of a suspicious

document. It is further argued that from the evidence adduced by

the prosecution it appears that there was no previous enmity

between the Appellant and the deceased and the alleged incident

took place on a sudden provocation and there was only a single

blow and the relation between the Appellant and the deceased was

of father and son. Therefore, the act committed by the Appellant

falls within the ambit of Section 304 Part II of the Indian Penal

Code.

6. Learned Counsel appearing for the State opposes the above

submission and supports the impugned judgment of conviction and

sentence. He submits that on the basis of the evidence adduced

by the prosecution, the Trial Court has rightly convicted the

Appellant. Though the written dying declaration (Ex.P1) does not

contain thumb impression or signature of the deceased, there is

nothing in the statement of K.C. Devsenapati (PW3) on the basis of

which his statement could be disbelieved. It is further argued that

Subrat (PW1) and Vijay (PW2) categorically deposed that when

they reached on the spot, they saw that the Appellant was standing

there with a knife and the deceased was lying down. Having seen

them, the Appellant left the knife there and ran away. Both Subrat

(PW1) and Parvati (PW4), brother and mother of the deceased,

respectively and Surajabai (PW5) also deposed that injured Shivlal

told them that the Appellant assaulted him with a knife and ran

away. Thus, there is also an oral dying declaration of the deceased

made before these witnesses. Hence, it is argued that the Trial

Court has rightly convicted the Appellant.

7. We have heard Learned Counsel appearing for the parties and

perused the statements of the witnesses and other evidence

available on record with due care.

8. It is not in dispute that the deceased was step son of the Appellant.

Subrat (PW1) is brother of the deceased and Parvati (PW4) is his

mother. It is also not in dispute that Vijay (PW2) is nephew of the

deceased.

9. Though there is no eyewitness in this case, in their Court

statements Subrat (PW1) and Vijay (PW2) categorically deposed

that at the time of incident Shivlal (deceased) shouted that " ej x;k".

Having heard the shout, they went to the spot and saw that the

Appellant was standing there with a knife in his hand and Shivlal

had suffered an injury on the chest and he was alive at that time.

Having seen them, the Appellant fled from the spot. Both these

witnesses remained firm during their cross-examination. Subrat

(PW1) further deposed that Shivlal told them that the Appellant

assaulted him. This statement is duly corroborated by Parvati

(PW4) and Surajabai (PW5). On the point of assault also, the

above statements of witnesses Subrat (PW1), Parvati (PW4) and

Surajabai (PW5) are not duly rebutted during their cross-

examination. Therefore, it is also established that the deceased had

made an oral dying declaration before these witnesses.

10. On a minute examination of the above evidence, it is clear that

though there is no eyewitness in this case, Subrat (PW1) and Vijay

(PW2), who reached on the spot immediately on being shouted by

the deceased, saw that the Appellant was standing there with a

knife in his hand and the deceased was lying down and he had

suffered an injury on the chest and having seen both these

witnesses the Appellant fled from there. From their statements

and from the statements of Parvati (PW4) and Surajabai (PW5), it

is also well established that at that time the deceased had made an

oral dying declaration before these witnesses. Furthermore, the

First Information Report (Ex.P6) against the Appellant was also

lodged by the deceased himself. During the course of treatment

also, he made a written dying declaration (Ex.P1) in the hospital

before Sub-Divisional Magistrate K.C. Devsenapati (PW3) in which

he stated that he was assaulted by the Appellant with a knife.

Thus, from the entire evidence adduced by the prosecution, it is

well established that it was the Appellant who assaulted the

deceased with a knife due to which he died.

11. Now, the question remains that whether the act committed by the

Appellant falls within the ambit of Section 302 of the Indian Penal

Code or Section 304 Part II of the Indian Penal Code. It is not in

dispute that the deceased was step son of the Appellant. According

to the case of the prosecution itself, the Appellant was in the habit

of consuming liquor and thereafter quarreling with his wife Parvati

(PW4) and beating her. The deceased inculcated and prevented

the Appellant from doing so. On the date of incident also, the

Appellant was quarreling with Parvati (PW4). At that time, the

deceased inculcated the Appellant. During that time, the deceased

slapped the Appellant twice. Thereafter, the Appellant assaulted

the deceased with a knife. Thus, it appears that the incident was a

result of a sudden provocation. From perusal of the post mortem

report (Ex.P18), it also appears that only one injury was suffered by

the deceased. Therefore, it appears that there was no intention on

the part of the Appellant to commit murder of the deceased.

Hence, in our considered view, the act committed by the Appellant

falls within the ambit of Section 304 Part II of the Indian Penal

Code. Therefore, the conviction of the Appellant is altered from

Section 302 of the Indian Penal Code to Section 304 Part II of the

Indian Penal Code.

12. As regards the sentence, it is reported that the Appellant is still in

jail and he has already served more than 10 years of jail sentence.

The maximum prescribed jail sentence for the offence under

Section 304 Part II of the Indian Penal Code is 10 years and the

Appellant has already served more than 10 years. Therefore, he

be released from jail immediately, if not required in any other case.

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

above.

                       Sd/-                                       Sd/-

              (Goutam Bhaduri)                          (Arvind Singh Chandel)
                  Judge                                          Judge

Gopal