Chattisgarh High Court
Mehtar @ Nanu Dhivar vs State Of Chhattisgarh on 1 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.618 of 2014
(Judgment Reserved on 21-07-2022)
(Judgment Pronounced on 01-08-2022)
{Arising out of judgment dated 02-05-2014 passed in Sessions Trial
No.01/2013 of the learned Sessions Judge, Raipur}
Mehtar @ Nanu Dhivar S/o Dukalu Ram Dhivar Aged About 27 Years
R/o Motimpur Khurd, Ps Kharora, Civil And Rev. Dist. Raipur C.G. ,
Chhattisgarh
---- Appellant (In Jail)
Versus
State Of Chhattisgarh Through Ps Kharora, Distt. Raipur C.G. ,
Chhattisgarh
---- Respondent
For Appellant : Shri Shrawan Kumar Chandel, Advocate
For Respondent/State : Shri Sudeep Verma, Dy.GA along with
Shri Ishan Verma, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
CAV Judgment
Per Sanjay S. Agrawal, J.
1. This appeal has been preferred by the appellant under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC")
questioning the legality and propriety of the judgment and order dated 02-05-
2014 passed by the learned Sessions Judge, Raipur in Sessions Trial
No.01/2013, whereby the appellant has been convicted for having committed
the offence of murder of Smt. Motin Bai under Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as "IPC") and sentenced him to Rigorous
Imprisonment for life and fine amount of Rs.5,000/- and, in default, he has to
suffer additional Rigorous Imprisonment for five months.
2. Briefly stated, the case of the prosecution, is that on 15.11.2012 at
17.30 hours, the complainant-Santosh Kumar Dhiwar lodged a report at
Police Station Kharora of Village Motimpur, submitting inter alia, that on the
fateful date, Raut community of neighbouring village had come to dance,
where some quarrel had taken place with them by the appellant-Mehettar
alias Nanu Dhiwar, who is the son of complainant's elder father, owing to
which, his (Santosh Kumar) father-Suklu Dhiwar (PW-9) was going to lodge
the report. It is alleged therein that since his mother-Motin Bai, the deceased,
had not stopped him for lodging the report and instead provoking him to lodge
the same, therefore, the appellant has assaulted several times on her head
with the aid of Batta/Rafter (a kind of wooden stick), as a result of which, she
sustained serious injuries and owing to which, blood was oozing and
consequent upon that, she became unconscious. She was taken to the
hospital immediately, but the doctor has declared her dead.
3. Based upon the aforesaid information, the matter was investigated by
the Station House Officer, Kharora, while registering the offence against him
under Section 302 of IPC, in connection with Crime No.364 of 2012. Inquest
was conducted vide (Ex.P-2) and spot map was prepared vide (Ex.P-12) and
thereafter, the dead body was sent for postmortem on 16-11-2012, which was
conducted by Dr. Pankaj Kishore(PW-7), who opined vide report dated 16-11-
2012 (Ex.P-10) that the cause of death was due to shock and coma leading
to cardio-respiratory failure owing to head injury. The Batta/Rafter (a kind of
wooden stick) used in the alleged crime, was recovered with bloodstained
from the appellant vide(Ex.P-7) on 16-11-2012 based upon his disclosure
statement(Ex.P-8) and, a bloodstained shirt was also recovered from him vide
(Ex.P-9). The articles so seized were sent for its chemical examination on 11-
12-2012 vide(Ex.P-18) to the Forensic Science Laboratory, Raipur, where
human blood was found as per the report (Ex.P-19) submitted by the
Assistant Chemical Examiner. The appellant was arrested vide(Ex.P-17) and
the statement of the witnesses were recorded and after due investigation, the
appellant was chargesheeted for the commission of offence punishable under
Section 302 of IPC and the final report was accordingly submitted by the
Investigating Officer on 18-12-2012 before the Judicial Magistrate First Class,
Raipur, who in turn, has committed the case to the Court of Session in
exercise of powers enumerated under Section 209 of Cr.P.C. for its trial. The
appellant has denied the charges so framed and claimed to be tried.
4. In order to bring home the guilt of the appellant, the prosecution has
examined as many as 11 witnesses and produced 19 documents, while none
was examined by the appellant in his defence.
5. After considering the evidence led by the prosecution, it was held by
the learned trial Court by placing its reliance upon the postmortem report
(Ex.P-10) submitted by the Dr. Pankaj Kishore (PW-7) that the death of the
deceased-Motin Bai was homicidal in nature and the appellant was found to
be the author of the alleged crime, which occurred on 15-11-2012. In
consequence, the appellant has been convicted under Section 302 of IPC
and sentenced as mentioned hereinabove.
6. Being aggrieved with the aforesaid judgment of conviction and order of
sentence, the appellant has preferred this appeal.
7. Learned counsel for the appellant submits that the finding recorded by
the learned trial Court, convicting the appellant under Section 302 of IPC, is
apparently contrary to law, inasmuch as it did not appreciate the evidence in
its proper perspective and thereby erred in convicting him as such. It is
contended further that even if the prosecution case is accepted as it is, the
appellant, at the most, could be convicted under Section 304 Part-II of IPC
and praying for conversion of his conviction under Section 304 Part II of IPC,
instead of his conviction under Section 302 of IPC.
8. On the other hand, learned counsel appearing for the State/respondent
submits that since the deceased was assaulted by the appellant abruptly with
the aid of Batta/Rafter in absence of sudden quarrel or even in absence of
heat of passion, therefore, he has rightly been convicted under Section 302 of
IPC and his conviction is not required to be altered to that of Section 304
Part-II of IPC, as alleged herein by learned counsel for the appellant.
9. We have heard learned counsel for the parties and perused the entire
record carefully.
10. From perusal of the record, it appears that the postmortem of the dead
body of the deceased-Motin Bai was conducted by Dr. Pankaj Kishore(PW-7),
who has submitted his report vide (Ex.P-10) and opined that cause of death
was due to shock and coma leading to cardio-respiratory failure owing to
head injuries in the occipital area and accordingly observed her death to be
homicidal in nature. After due consideration of the said postmortem report
vide (Ex.P-10), which is duly corroborated by the evidence of Dr. Pankaj
Kishore (PW-7), the learned trial Court has rightly arrived at a conclusion that
the cause of death of the deceased was homicidal in nature and we
accordingly affirmed the same.
11. It is now to be considered as to whether the alleged crime was
committed by the appellant-Mehettar alias Nanu Dhiwar or not and if it is
found that he is the author of the alleged crime, then whether his conviction is
liable to be converted to that of Section 304 Part II of IPC ?
12. Santosh Dhiwar (PW-2) is the son of deceased-Motin Bai and was an
eye-witness of the alleged incident. According to him, when he was sitting in
the Choura (Baramda), the appellant came in a clandestine manner and
assaulted his mother with a wooden stick three to four times on her head from
its back side and he, therefore, shouted immediately by saying "Ma" "Ma" and
took her inside the house. It is stated further by him that the alleged wooden
stick with bloodstained was seized vide seizure memo (Ex.P-7) dated
16-11-2012 as per the disclosure statement (Ex.P-8) made by the appellant.
He was found to be stuck in his cross-examination with regard to the factum
of alleged assault as made by the appellant on the back part of the head on
his mother-Motin Bai.
13. Om Prakash Dhiwar (PW-3), who was in his home at the time of
commission of alleged offence, had come out from his house upon hearing
noise of said Santosh Dhiwar and has seen the appellant standing while
holding the balli (a kind of wooden stick) who ran away immediately from the
spot upon seeing him. It is stated further by him that the deceased-Motin Bai
was lying with pool of blood. He deposed further that in his presence, the
appellant has made his disclosure statement (Ex.P-8) and based upon it,
"wooden stick"(lakdi ki balli) and "shirt" were seized from him vide seizure
memos (Ex.P-7 and Ex.P-9), respectively.
14. Bharat Lal Dhiwar (PW-4), is the minor son of the deceased and
according to him, his mother was assaulted from its back side by the
appellant with Rafter (Batta), but, in his cross-examination, he was not found
to be firm, as he reached the place of incident upon hearing the noise of
others and found his mother to be lying on the floor.
15. Ram Lal Yadav (PW-5), who is belonging to the Raut Community of
neighbouring village, had come to the house of the appellant at Village-
Motimpur for performing the dance commonly known as "Raut nach".
According to him, since he and others of his community wanted to go back
soon after the performance of Raut-nach, therefore, the appellant got
annoyed and has thrown a brick on his head, for which, they wanted to lodge
the report and send Suklu, who is the husband of deceased-Motin Bai, for the
said purpose. Similar is the statement of Vicky Dubey (PW-1) and Kisan Lal
Sahu (PW-6) with some deviations, but, they also deposed that some quarrel
had taken place at the time of Raut-nach and during the course of quarrel, the
appellant has thrown a brick on the head of said Ram Lal, and thereafter,
Suklu, husband of the deceased-Motin Bai, went for lodging the report of the
said incident.
16. Suklu Ram Dhiwar (PW-9) is the husband of the deceased, who has
intercepted the alleged quarrel when it took place at the time of said dance,
which occurred owing to thrown of brick by the appellant on the head of said
Ram Lal. According to him, when he was going to lodge the report about the
said incident and was 2 km away from the Police Station Kharora, he
received the information from his son-Santosh that his mother has been killed
by the appellant while inflicting continuously on her head with the aid of Batta/
Rafter (a kind of wooden stick) and, therefore, he immediately rushed there
without lodging the report.
17. What is, therefore, reflected from the aforesaid evidence that on the
fateful day, i.e.15-11-2012, the Raut community of neighbouring village had
come for performing the dance at the house of the appellant at Village
Motimpur, where some quarrel took place as the said Raut community
wanted to go back soon, owing to which, the appellant got annoyed and
thrown a brick on the head of Ram Lal, one of the Members of the said
community, and on account of the said incident, Suklu Ram Dhiwar(PW-9),
the husband of the deceased-Motin Bai, was directed to lodge the report.
However, in the meantime, the appellant has abruptly assaulted on the head
of his wife several times with the aid of Batta/Rafter, owing to which, she
succumbed to the injuries. It revealed further that the autopsy of the dead
body was conducted by Dr. Pankaj Kishore (PW-7), who submitted his
postmortem report (Ex.P-10) wherein, he has observed the following injuries
at paragraphs 3 and 4, which read as under:-
3. "eSus e`frdk flj ds ¼e/; vFkkZRk chp vkSj fiNys Hkkx esa½ iSjkbVy vkSj
vkfDlfiVy dh gfMM;ka iwjh rjg ls VqVh gqbZ Fkh vkSj vkfDlfiVy gMMh
ij dbZ txg QzasDpj FksA flj ds vkarfjd ijh{k.k esa eSus ik;k fd & QksjgsM
esa [kwu dk /kCck FkkA
4. eSus "ko ds vkarfjd ijh{k.k esa ik;k fd& "ko ds ilyh] QqQql] daB
vkSj "okl uyh] nkfguk vkSj cka;k QsQM+k] ân; bR;kfn lkekU; FksA eqag]
xzkl dh uyh] isV] NksVh vksj cM+h vkar] Iyhgk] xqnkZ] ew=kl;] bR;kfn
lkekU; Fks A czsu ds vkfDlfiVy gfMM;kasa esa dbZ txg QzsDpj FksaA"
18. After noticing the aforesaid injuries, it was opined at paragraph 5, as
under:-
vfHker & "eSus e`frdk ds "ko dh pkWp mijkar ik;k fd & e`frdk dh
ekSr flj ds vkfDlfiVy {ks= es ?kkrd pksV ds dkj.k czsu dk tks Hkkx
ân; vkSj lkal dks fu;af=r djrk gS mls iwjh rjg uqdlku igqWpk Fkk ,oa
e`frdk dh ekSr lkal vkSj ân; dh xfr :dus ds dkj.k gqbZ FkhA "ko
djhcu 16 ls 20 ?kaVs iqjkuk FkkA e`frdk dh e`R;w gR;kRed izd`fr FkhA
e`frdk ds flj ds vkfDlfiVy fgLls esa vk;h pksV izd`fr ds lkekU;
vuqdze esa e`R;w dkfjr djus ds fy, Ik;kZIr Fkh A ----------------------------- "
19. According to the aforesaid opinion assigned by the Doctor, it is evident
that the injuries so caused intentionally to the occipital portion of the head of
the deceased were sufficient in the ordinary course of nature to cause her
death. The question which now arises for determination would be whether the
act on the part of the appellant would constitute the offence of murder as
defined under Section 300 of IPC or would constitute the culpable homicide
not amounting to murder as defined under Section 299 of IPC.
20. Section 299 defines "culpable homicide" which reads as under:-
"299. Culpable homicide.---- Whoever causes death by doing
an act with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits
the offence of culpable homicide."
and Section 300 defines "murder" which reads as under:-
300. Murder.---- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or
Secondly---- If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or
Thirdly---- If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or
Fourthly-----If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid."
Exception 1.--- When culpable homicide is not murder.---
Culpable homicide is not murder if the offender, whilst deprived
of the power of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
The above exception is subject to the following
provisos :--
First.--- That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm
to any person.
Secondly.---- That the provocation is not given by
anything done in obedience to the law, or by a public servant in
the lawful exercise of the powers of such public servant.
Thirdly.---- That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Explanation.--- Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact.
Exception 2.--- Culpable homicide is not murder if the offender,
in the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law and
causes the death of the person against whom he is exercising
such right of defence without premeditation and without any
intention of doing more harm than is necessary for the purpose
of such defence.
Exception 3.--- Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him
by law, and causes death by doing an act which he, in good
faith, believes to be lawful and necessary for the due discharge
of his duty as such public servant and without ill-will towards the
person whose death is caused.
Exception 4.--- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender having
taken undue advantage or acted in a cruel or unusual manner.
Explanation.--- It is immaterial in such cases which party offers
the provocation or commits the first assault.
Exception 5.---- Culpable homicide is not murder when the
person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death with his
own consent."
21. A bare perusal of the aforesaid provisions, particularly as provided in
opening sentence of Section 300 IPC, i.e., "Except in the cases hereinafter
excepted" would show that all "murders" are "culpable homicides" but all the
"culpable homicides" cannot be held to be "murders", if falls any of the
exceptions enumerated in the above mentioned exceptions of Section 300
IPC. Meaning thereby, the "culpable homicide" cannot be held to be "murder"
if any of the exceptions provided in Section 300 IPC is attracted.
22. The Scheme of the Penal Code relating to "culpable homicide" has
been explained by the Supreme Court in the matter of "State of Andhra
Pradesh v. Rayavarapu Punnayya and another" reported in (1976) 4 SCC
382 at para 12 of its judgment as under:-
"12. In the scheme of the Penal Code, 'culpable homicide' is
genus and 'murder' its specie. All 'murder' is 'culpable homicide'
but not vice-versa. Speaking generally, 'culpable homicide' sans
'special characteristics of murder', is 'culpable homicide not
amounting to murder'. For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the Code
practically recognises three degrees of culpable homicide. The
first is, what may be called, 'culpable homicide of the first degree'.
This is the greatest form of culpable homicide, which is defined in
Section 300 as 'murder'. The second may be termed as 'culpable
homicide of the second degree'. This is punishable under the first
part of Section 304. Then, there is 'culpable homicide of the third
degree'. This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among the
punishments provided for the three grades. Culpable homicide of
this degree is punishable under the second part of Section 304."
23. In the said matter, i.e., State of Andhra Pradesh v. Rayavarapu
Punnayya and another (supra), the Hon'ble Supreme Court has further
observed at para 21 as under:-
"21. ...................... whenever a court is confronted with the
question whether the offence is 'murder' or 'culpable homicide not
amounting to murder', on the facts of a case, it will be convenient
for it to approach the problem in three stages. The question to be
considered at the first stage would be, whether the accused has
done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused
and the death, leads to the second stage for considering whether
that act of the accused amounts to "culpable homicide" as defined
in Section 299. If the answer to this question is prima facie found
in the affirmative, the stage for considering the operation of
Section 300, Penal Code, is reached. This is the stage at which
the court should determine whether the facts proved by the
prosecution bring the case within the ambit of any of the four
clauses of the definition of 'murder' contained in Section 300. If
the answer to this question is in the negative the offence would be
'culpable homicide not amounting to murder', punishable under the
first or second part of Section 304, depending, respectively, on
whether the second or the third clause of Section 299 is
applicable. If this question is found in the positive, but the case
comes within any of the exceptions enumerated in Section 300,
the offence would still be 'culpable homicide not amounting to
murder', punishable under the first part of Section 304, Penal
Code."
24. As observed hereinabove, based upon the postmortem report
(Ex.P-10) coupled with the opinion given by Dr. Pankaj Kishore (PW-7), the
injuries so caused by the appellant on the occipital portion on the head of the
deceased were sufficient in the ordinary course of nature to cause her death
and the act of the appellant would, therefore, fall in clause "Thirdly" to Section
300 of IPC.
25. Clause "Thirdly" to Section 300 IPC is relevant for the purpose is
reproduced here in as under:-
"Thirdly---- If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or"
26. A bare perusal of the aforesaid clause would, therefore, show that it
consists of two parts. The first part is that there was an intention to inflict the
injury that is found to be present and the second part of that the said injury is
sufficient in the ordinary course of nature to cause death. Under the first part,
the prosecution has to prove from the given facts and the circumstances that
the intention of the accused was to cause that particular injury. Whereas the
second part whether it was sufficient to cause death is an objective enquiry
and it is a matter of inference or deduction from the particulars of the injury.
27. At this juncture, the principles laid down by the Supreme Court in the
leading case of Virsa Singh vs. State of Punjab, reported in AIR 1958 SC
465 is to be seen in order to ascertain the question as to whether clause
"Thirdly" to Section 300 IPC would be applicable in the present case or not.
That is the case where the appellant was sentenced to imprisonment for life
under Section 302 IPC. There was only one injury on the deceased and that
was attributed to him. It was caused as a result of the spear thrust and the
doctor opined that the injury was sufficient in the ordinary course of nature to
cause death. In these factual scenario, it has been observed at paragraphs
11, 12 and 13 as under :-
"(11) In considering whether the intention was to inflict the injury
found to have been inflicted, the enquiry necessarily proceeds on
broad lines as, for example, whether there was an intention to
strike at a vital or a dangerous spot, and whether with sufficient
force to cause the kind of injury found to have been inflicted. It is,
of course, not necessary to enquire into every last detail as, for
instance, whether the prisoner intended to have the bowels fall
out, or whether he intended to penetrate the liver or the kidneys
or the heart. Otherwise, a man who has no knowledge of
anatomy could never be convicted, for, if he does not know that
there is a heart or a kidney or bowels, he cannot be said to have
intended to injure them. Of course, that is not the kind of enquiry.
It is broad-based and simple and based on commonsense; the
kind of enquiry that 'twelve good men and true' could readily
appreciate and understand.
(12) To put it shortly, the prosecution must prove the following
facts before it can bring a case under S. 300 "thirdly";
First, it must establish, quite objectively, that a
bodily injury is present;
Secondly, the nature of the injury must be
proved; these are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is to
say, that it was not accidental or unintentional, or that
some other kind of injury was intended.
Once these three elements are proved to be
present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the
type just described made up of the three elements set
out above is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with
the intention of the offender.
(13) Once these four elements are established by the
prosecution (and, indisputably, the burden is on the prosecution
throughout) the offence is murder under S. 300 "thirdly". It does
not matter that there was no intention to cause death. It does not
matter that there was no intention even to cause an injury of a
kind that is sufficient to cause death in the ordinary course of
nature (not that there is any real distinction between the two). It
does not even matter that there is no knowledge that an act of
that kind will be likely to cause death. Once the intention to cause
the bodily injury is actually found to be proved, the rest of the
enquiry is purely objective and the only question is whether, as a
matter of purely objective inference, the injury is sufficient in the
ordinary course of nature to cause death. No one has a licence
to run around inflicting injuries that are sufficient to cause death
in the ordinary course of nature and claim that they are not guilty
of murder. If they inflict injuries of that kind, they must face the
consequences; and they can only escape if it can be shown, or
reasonably deduced that the injury was accidental or otherwise
unintentional."
28. Based upon the aforesaid principles, it is clear that in order to bring a
case under clause "Thirdly" to Section 300 IPC, the prosecution must prove
the injury and its nature present in the body and it is also required to be
established that the injury so inflicted was intentional in nature and it was not
occurred accidentally or some other kind of injury was intended to be caused.
After satisfying these elements, it must be proved further that the injury so
caused is sufficient in the ordinary course of nature to cause death and part
of this enquiry, as held in Virsa Singh's case (supra), would be purely
objective and inferential and would nothing to do with the intention of the
offender. Accordingly, applying the aforesaid principles to the case in hand
based upon the evidence led by the prosecution as observed hereinabove, it
is evident that the appellant has committed the offence of murder of said
Motin Bai and , therefore, he has been rightly convicted under Section 302 of
IPC.
29. In so far as the contention of learned counsel for the appellant that
since the alleged offence was committed, owing to certain quarrel and,
therefore, his conviction is liable to be altered to that of the offence under
Section 304 Part-II of IPC, is concerned, the same is, however, noted to be
rejected as it is evident from perusal of the evidence led by the prosecution
that neither any provocation was made by the deceased to him, nor a sudden
fight with her was taken place, yet, she was assaulted brutally by the
appellant on the back part of her head with the aid of Batta/Rafter. In view
thereof, none of the exceptions provided to Section 300 of IPC would be
attracted so as to alter the conviction of the appellant to that of Section 304
Part-II of IPC, instead of his conviction under Section 302 of IPC, as alleged
by learned counsel for the appellant.
30. Consequently, the appeal being devoid of merit, is hereby dismissed.
SD/- SD/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Tumane
HEAD NOTES
Criminal Appeal No.618 of 2014
Indian Penal Code, 1860 - Section 300, thirdly -
Applicability -Injuries inflicted by accused intentionally on
occipital region of the head of the deceased which are found
to be sufficient in the ordinary course of nature to cause death
based upon the opinion given by the Medical Expert -
Inference of offence would be drawn under 'thirdly' to Section
300 IPC, and, therefore, the conviction under Section 302 IPC
cannot be altered to that of Section 304 Part II IPC.
Cases Referred:-
1) State of Andhra Pradesh Vs. Rayavarapu Punnayya and
another reported in (1976) 4 SCC 382.
2) Virsa Singh Vs. State of Punjab reported in AIR 1958 SC
