Meghnath Markam vs State Of Chhattisgarh
2022 Latest Caselaw 4992 Chatt

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                                                                    NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR
                      Criminal Appeal No. 829 of 2019

Meghnath Markam S/o Mansingh Markam aged about 32 Years R/o Village -
Bargaon Police Station - Shobha District - Gariyaband (C.G.),
                                                            ---- Appellant

                                 Versus
State of Chhattisgarh Through District Magistrate Gariyaband District
(Revenue and Civil ) Gariyaband (C.G.).
                                                     --- Respondent


      For Applicant       -     Shri Anand Kesharwani, Advocate
      For State           -     Shri Kasif Shakeel, Dy. AG


     Order on Board by Hon'ble Shri Justice Sachin Singh Rajput
04/08/2022
      By way of instant appeal the appellant is assailing the legality,

validity and propriety of the judgment impugned dated 25.09.2018

passed by Additional Sessions Judge, Gariyaband, CG in Sessions Trial

No. 69/2016 convicting the accused/appellant under Section 304 Part-

II and 323 IPC and sentencing him to undergo rigorous imprisonment

for 07 years and pay fine of Rs. 2000/- u/s 304 (Part-II) and RI for six

months u/s 323 IPC, plus default stipulations.

2.    Facts

of the case in brief are that on 16.07.2016 the present

appellant was quarreling with his elder brother Dashnath (PW-7) and

sister-in-law Durga (PW-6) and at that time his maternal mother-in-law

Guhreen Bai (deceased) passed thereby and on seeing the quarrel

going on, when she asked the accused as to why he was doing so, he

lost his tamper and retorted as to who she was to put a question to

him like this, and saying so, he took up the firewood and dealt blows

with it on her head. He also inflicted club injuries to his sister-in-law

Durga Bai (PW-6) on her head. Thereafter, on information given by

Radhelal Markam (PW-14) merg No. 06/2016 was registered and after

merg inquiry, FIR (Ex.P-15) was recorded for the offence punishable

under Section 302 IPC. Spot map was prepred, inquest on the dead

body was carried out, dead body was sent for postmortem

examination, injured Durga Bai (PW-6) was sent for medical

examination, plain and blood stained soil was seized and seizure of

wooden piece was made on the memorandum of accused/appellant.

Thus on completion of investigation, charge sheet was filed under

Sections 302 and 323 IPC followed by chage being framed for the

same offences. However, the appellant denied the charge and claimed

trial.

3. In order to prove its case the prosecution has examined as many

as 19 witnesses. Statement of the accused/appellant was also

recorded under section 313 of the Code of Criminal Procedure where

he pleaded his innocence and false implication in the same. He

however did not examine anyone in support of his case.

4. After hearing the parties and making due appreciation of the

evidence on record, learned Court below by the judgment impugned

convicted the appellant under Section 304 Part-II in place of 302, and

323 IPC and imposed the sentence as detailed above. Hence this

appeal.

5. Counsel for the appellant submits that the findings recorded by

the Court below convicting and sentencing the accused/appellant as

mentioned above are not based on due appreciation of the evidence

on record and being so they are liable to be set aside. He submits that

there are number of contradictions and omissions in the statements of

the prosecution witnesses but still the Court below has ignored the

same while recording the findings against the appellant and therefore,

the judgment impugned cannot be allowed to stand. Lastly, it is

submitted that if conviction part of the judgment impugned is not

going to be interfered with, looking to the fact that out of the total

period of sentence of RI for 07 years imposed on the appellant, he has

already remained behind the bars for about 06 years, and since there

is no minimum sentence provided for the offence, the sentence

imposed on him may be reduced to the period already undergone.

6. On the other hand, counsel for the respondent/State supports

the judgment impugned and submits that the judgment impugned is

based on just and proper appreciation of the evidence of the witnesses

and therefore no interference with the same is called for in this

appeal. Even as regards sentence, the State counsel submits that the

Court below has already taken a lenient view in imposing the sentence

of seven years, and therefore, no interference is warranted with the

sentence part as well.

7. Heard counsel for the parties and perused the material available

on record including the judgment impugned.

8. Though there is no dispute as to the death of the deceased

being homicidal in nautre, in order to ascertain the same it appears

just and proper to refer to the evidence of Anju Sonwani (PW-19) who

along with Dr. Sudhanshu Patel (PW-16) conducted postmortem

examination on her body and gave report Ex. P-21. According to these

witnessess, there was abrasion in the forearm in the size of 1/2 cm x

1/2 cm; on the middle and back side of head there was swelling; and

in right cheek there was a blue mark. On internal examination they

noticed haemotoma (clotted blood); internal bleeding was there;

middle bone of the head was fractured coupled with bleeding; blood

mucous was there in the throat; both lungs had turned pale, and half

digested food was there in the stomach. All the injuries were ante

mortem in nature and death was opined to be homicidal in nature.

Cause of death, as opined, was hemorrhagic shock due to internal

bleeding.

Thus the view taken by the Court below that the death of the

deceased was homicidal in nature is just and proper and there is

nothing before this court to take a contrary view thereto.

9. Now the next question to be decided is as to who caused the

death of the deceased.

10. Most important and eyewitness to the incident is Radhelal

Markam (PW-14) who has stated in his evidence that on the date of

incident after hearing some hue and cry he went to the spot where a

quarrel between the appellant, his elder brother Dashnath (PW-7) and

sister-in-law Durga (PW-6) was going on, and at that very time Guherin

Bai (deceased) passed thereby and asked the accused as to why he

was indulging in quarrel. On this, the accused/appellant inflicted blows

with the wooden piece carried with him on her head, as a result of

which she fell down on the ground. According to this witness, the

appellant also assaulted Durga (PW-6) with the wooden piece on her

head and thereafter when he tried to run away, he was caught hold of

by the villagers. Another important witness to the incident is Durga Bai

(PW-6) who has stated that after being dealt a club blow by the

accused/appellant on her head, she fell down and became

unconscious and did not know as to what happened thereafter. She

has further stated that after some time she regained consciousness

and saw Guherin Bai lying there. Both these witnesses remained firm

in the cross examination to what they stated in the examination-in-

chief. This apart, there are other witnesses such as Krishna Netam

(PW-2), Ghasiya Ram Mandavi (PW-3), Dhannuram (PW-4), Panchuram

(PW-5), Dashnath (PW-7), Mahettar Markam (PW-8), Lachhentin Bai

(PW-12) and Ramlal Vishwakarma (PW-13 )who saw Guherin Bai lying

on the ground with injuries on head and came to know by the people

present there that it is the appellant who caused injuries to her, and

that accused was tied by the villagers when he was trying to run away.

11. Thus from the evidence discussed above, complicity of the

accused/appellant in causing the death of Guherin Bai and inflicting

injuries to Durga Bai (PW-6) is clearly established and thus his

conviction under sections 304 (Part-II) and 323 IPC is hereby

maintained.

12. As regards sentence, it is manifest from the record that the

appellant has been awarded the maximum sentence of RI for 07 years

and out of that he has already remained in jail for more than 6 years.

Nothing adverse regrading his behaviour and resultant danger being

posed to the society after his release, has been communicated by the

jail authorities. Taking a cummulative note of the situation highlighted

above, this Court is of the opinion that interest of justice would be

served if the sentence imposed on him is reduced to the period

already undergone by him. Order accordingly.

13. The appellant be set free forthwith if not required in any other

case.

14. Appeal is thus allowed in part with the observations and to

the extent indicated above.

Sd/-

(Sachin Singh Rajput) Judge Jyotishi