Sewakram And Another vs State Of Chhattisgarh
2022 Latest Caselaw 7275 Chatt

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                                                            NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                     CRA No. 349 of 2012

  1. Sewakram, S/o Sitaram Diwaker, Aged about- 34 years,

  2. Amardas. S/o- Sirdari Diwakar, Aged about- 19 years,

     Both are R/o Village Kathiya, P.S. Kharora, District- Raipur,
     Chhattisgarh                                ---- Appellants

                             Versus

    State of Chhattisgarh, Through - P.S. Kharora, District-
     Raipur, Chhattisgarh                  ---- Respondent


 For Appellant          : Shri Manish Sharma, Advocate

 For Respondent         : Shri Animesh Tiwari, Deputy Advocate
                          General


          Hon'ble Shri Justice Sanjay K. Agrawal
        Hon'ble Shri Justice Rakesh Mohan Pandey
                    Judgment on Board
                         05/12/2022

Sanjay K. Agrawal, J.

1) This Criminal Appeal preferred under Section 374 (2) of the

CrPC is directed against the impugned judgment of conviction

and order of sentence dated 16.03.2012 passed by Sixth

Additional Sessions Judge, Raipur, District- Raipur,

Chhattisgarh in Sessions Trial No. 100/2011, whereby the two

appellants have been convicted for the offence punishable

under Section 302 read with Section 34 of the IPC and

sentenced to life imprisonment and fine of Rs.2,000/- each,

in default of payment of fine, additional R. I. for 3 months

each. They have also been convicted for the offence

punishable under Section 7 of Drugs and Magic Remedies

(Objectionable Advertisements) Act, 1954 (hereinafter

referred to as "the Act, 1954") and sentenced to undergo

Simple Imprisonment for 3 months each.

2) Case of the prosecution, in brief, is that on 08.03.2011 at

about 8:00 P.M. at village- Kathiya, Police Station- Kharora,

District- Raipur, Chhattisgarh, in furtherance of their

common intention the appellants hererin along with

acquitted co-accused Sirdari and juvenile accused

Vishwajeet, on the pretext of treating deceased - Smt.

Meena Bai by witchcraft, tied her with nylon rope thereby

beaten her by which she suffered grievous injuries and died.

It is further case of the prosecution that the deceased was a

person of weak mind, as three days prior to the incident i.e.

05.03.2011, dissatisfied with her in-laws, reached to the

village Kathiya from Bangoli. Where Baiga of village Kathiya

co-accused [Juvenile] Vishwajeet Bhardwaj alongwith

present appellants treated the deceased by playing

witchcraft in the afternoon, by which the deceased was tied

by rope and beaten up by the appellants by which she

suffered injuries and died.

3) Complainant- Nanakchand Dahariya (PW/1) lodged Dehati

merg intimation in Police Station Kharora vide Ex. P/1. FIR

was registered vide Ex.P/10. Investigating Officer

Ghanshyam Das Soni (PW/9) reached to the spot, prepared

spot map vide Ex.P/3. In the presence of panchas inquest

was conducted over dead body of the deceased vide

Ex.P/5. On the recommendation of panchas, dead body of

the deceased was sent for postmortem vide Ex.P/9, which

was conducted by Dr. Azad Ahmad Siddique (PW/11) by his

report vide Ex.P/25, where he opined that cause of death

was on account of asphyxia due to throtteling and death

was homicidal in nature. Pursuant to the memorandum

statement of the appellant No.1 Sewakaram Ex.P/11, black

coloured nylon rope and articles used in witchcraft were

seized vide Ex.P/12 and pursuant to memorandum

statement of the appellant No.2 Amardas Diwakar vide

Ex.P/13, a bamboo stick, rope and black & white coloured

nylon rope were seized vide Ex.P/14. Statements of the

witnesses were recorded under Section 161 of the CrPC.

4) After due investigation, the accused/appellants were

charge-sheeted for offence under Section 302 read with

Section 34 of the IPC and Section 7 of the Act, 1954,

before the jurisdictional criminal court and the case was

committed to the Court of Sessions for conducting the trial

and hearing and disposal in accordance with law. The

accused/appellants abjured the guilt and entered into

defence.

5) In order to bring home the offence, the prosecution

examined as many as 15 witnesses and exhibited 27

documents. The defence has examined none and exhibited

two documents which are Ex.D/01- statement of

Nanakchand and Ex.D/02 statement of Mahendra Kumar.

6) The trial Court after appreciating oral and documentary

evidence available on record, acquitted co-accused Sirdari

Diwakar and convicted and sentenced the appellants herein

under Section 302 read with Section 34 IPC and Section 7

of the Act, 1954, against which, the instant appeal under

Section 374(2) of the CrPC has been preferred.

7) Shri Manish Sharma, learned counsel appearing for the

appellants, would submit that the prosecution has failed to

prove the offence against the appellants beyond reasonable

doubt, therefore, the appellants deserves to be acquitted. In

alternative, he would further submit that there is no evidence

against the appellants for commission of murder of the

deceased. The deceased is said to have been beaten by

main accused Vishwajeet (juvenile) and at the most the

appellants can be convicted under Section 323 of the IPC.

The impugned judgment of conviction and order of sentence

is liable to be set-aside.

8) Shri Animesh Tiwari, learned Deputy Advocate General

appearing for the State/respondent, would support the

impugned judgment and would submit that the appellants

have rightly been convicted for the offence under Section

302 IPC and appeal deserves to be dismissed.

9) We have heard learned counsel for the parties and

considered their rival submissions made herein-above and

also went through the original record of trial Court with

utmost circumspection.

10) The first question for consideration would be, whether death

of deceased-Meena Bai was homicidal in nature, which has

been answered by the learned trial Court in affirmative, relying

upon the postmortem report Ex.P/25 wherein Dr. Azad Ahmad

(PW/11), who has conducted the postmortem of deceased

Meenabai, has opined cause of death on account of Asphyxia

due to throttling, which is homicidal in nature. The finding so

recorded by the trial Court that death of deceased Meenabai

was homicidal in nature, is the correct finding of fact based on

the evidence available on record, it is neither perverse nor

contrary to the record and it has not been seriously

questioned on behalf of the defence. We hereby affirm the

said finding.

11) Now, the next question would be, whether the appellants are

the perpetrator of the crime?

12) In the case of the defence that the co- accused Vishwajeet

(juvenile) was residing in the house of the appellant No.1, who

used to treat by practicing 'Jhadphoonk'/witchcraft and also

treated deceased - Meena Bai. That is the reason the

appellant No.1 has falsely been implicated in this case. At the

most there is allegations of beating by the appellants but

according to the statement of Dr. Azad Ahmad Siddique (PW/11)

injuries were simple in nature and were not sufficient to cause

death, therefore, the appellants cannot be convicted for the

offence punishable under Section 302/34 IPC.

13) In order to appreciate the plea raised on behalf of the

appellants, It would be appropriate to notice the nature of

injuries which have been suffered by the deceased and

explained by Dr. Azad Ahmed Siddique (PW/11) in his

statement before the Court which states as under:-

"[email protected]{kd d".kk dqekj oekZ dzekad 433 iqfyl Fkkuk [kjksjk ds }kjk Jherh ehuk firk nqyjok dqjsZ 30 lky xzke fVdjhMhg iqfyl Fkkuk [kjksjk dk fuoklh Fkk] ds 'ko ijh{k.k gsrq fnukad 09&03&2011 dks nksigj 3 ctdj 40 feuV ij 'ko ijh{k.k gsrq yk;k Fkk A mlh fnukad dks 4 ctdj 30 feuV ij mDr 'ko dk iksLVekVZe esjs }kjk fd;k x;k A ijh{k.k ij eSaus ik;k fd mDr 'ko esa e`R;q i'pkr dh vdM+u mijh vkSj fupys Hkqtk esa ekStwn Fkk A e`R;q i'pkr 'kjhj ds i`"B Hkkx esa iksLVekVZe LVs;fuax ik;k x;k Fkk A mldk 'kjhj gYdk lQsn iM+ x;k Fkk A mlds 'kjhj ij yky Hkwjk daVh;wtu ik;k x;k Fkk] tks fd nkfgus vxz Hkqtk ,oa nkfgus dU/ks ds mijh Hkkx ij ik;k x;k Fkk tks 16x Hkqtk ds iwjh xksykbZ rd fLFkr Fkk A mlh izdkj yky Hkwjs daVh;wtu nkfgus Nkrh ij Fkk] ftldk vkdkj 4- 5 bap x 3 bap Fkk A blh izdkj yky Hkwjs daVh;wtu cgqr lh la[;k esa Nkrh ds nkfgus Hkkx ij ckgj dh vksj fLFkr Fkk] ftldk vkdkj 10-5 bap x 16 bap Fkk A mDr daVh;wtu 3 bap x 0-5 bap ls ysdj 6 bap x 1-5 bap Fkk A

[email protected] xys ij ,oa Nkrh ds mijh Hkkx ij daVh;wtu ik;k x;k Fkk ftldk vkdkj 6 bap x 2-5 bap Fkk] ml ij cgqr ls NksVs 16 dh la[;k esa yky Hkwjs [kjksap Hkh ik;s x;s Fks ftldk vkdkj 1 lsa-eh- x 0-5 ls-eh- ls ysdj 2-5 lsa-eh- x 1-5 lsa-eh- rd Fkk A nkfgus psgjs ij daVh;wtu ik;k x;k Fkk] ftldk vkdkj 4 bap x 2 bap rd Fkk A

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Nkrh ds ck;s rjQ ,oa ck;s da/ks ij 5 bap x 5-5 bap dk daVh;wtu Fkk A [email protected];h Hkqtk ij 1 bap x 0-5 bap ls ysdj 6 bap x 5 bap ds ikap daVh;wtu ekStwn Fks A nkfgus tka?k ij ikap daVh;wtu 2 bap x 1 bap ls ysdj 6 bap x 3 bap rd Fks A blh izdkj nkfgus iSj ij daVh;wtu ik;k x;k Fkk] ftldk vkdkj 3-5 bap x 8 bap Fkk A blh izdkj cka;h tka?k ,oa ck;s iSj ij daVh;wtu Fkk] ftldk vkdkj 2 bap x 1-5 bap ls ysdj 8 bap x 3 bap rd Fks A [email protected] ij yky jax dh [kjksap 1-5 lsa-eh- x 1 lsa-eh- dh Fkh A nkfgus iqVBs ds Hkkx ij 8 bap x 6 bap dk daVh;wtu Fkk rFkk ck;as iqVBs ij 4 bap x 3 bap dk daVh;wtu Fkk A ck;sa vxz Hkqtk ij 16 dh la[;k esa daVh;wtu ,oa [kjksap ftldk vkdkj 1 lsa-eh- x 0-5 lsa-eh- ls ysdj 2-5 lsa-eh-

           x 1 lsa-eh- rd ds Fks A
           vkarfjd ijh{k.k&
           [email protected]         xys esa cgqr ls daVh;wtu vxz ,oa
           ckgjh Hkkx ij ekStwn Fks A efLr"d]

QsQM+s] ;d`r] yhoj] frYyh] xqnkZ vxz dtLVsM ik;s x;s Fks A ân; ds nkfgus psEcj esa jDr ekStwn Fkk A daB ,oa 'okl uyh datLVsM Fkk] ftles lQsn jax dk >kx ik;k x;k A isV esa vkIIkpk Hkkstu ik;k x;k FkkA vfHker& [email protected] erkuqlkj e`rdk dks vk;h mijksDr pksVs e`R;q iwoZ dh Fkh rFkk 'ko ijh{k.k ls yxHkx 24 ?kUVs iwoZ dh Fkh esjs erkuqlkj e`rdk dh e`R;q dk dkj.k ne ?kqVus ls gks ldrh gS] tks fd xyk ?kksVus ls gks ldrh gS A e`rdk dh e`R;q dh izd`fr ekuo o/k izd`fr dh gks ldrh gSA"

14) As per statement of Dr. Azad Ahmed Siddique (PW/11), who

conducted postmortem over the body of the deceased, would

show that cause of death is on account of asphyxia due to

strangulation. In para 15 he has stated that no fracture in hyoid

bone was found and nature of injuries are simple in nature. In

para 17 he stated that if a person remained for long time

in exposure of smoke, on that account, death of a person

may also occur.

15) In order to consider the plea raised by learned counsel for

the appellants regarding nature of injury, it would be

appropriate to notice definition of "grievous hurt" as defined in

Section 320 of IPC.

"320. Grievous hurt.- The following kinds of hurt only are designated as grievous.-

First to seventhly xxx xxx xxx

Eighthly.- Any hurt which endangers life or which cause the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

16) Grievous hurt is hurt of more serious kind. This section

merely gives the description of grievous hurt. A person cannot

be said to have caused grievous hurt unless the hurt caused

is one of hurts specified under Section 320 of IPC. Therefore,

it is duty of the Court to give a finding on its own whether the

hurt was simple or grievous.

17) The expression "dangerous" is an adjective and the

expression "endanger" is a verb. An injury which can put life

to an immediate danger of death would be an injury which

can be termed as "dangerous to life" and, therefore, when a

doctor describes an injury as "dangerous to life" he means an

injury which endangers life in terms of clause (8) of Section

320 of the IPC, for it describes the injury "dangerous to life"

only for the purpose of the said clause. He instead of using of

the expression that this was an injury which "endangered life"

describes it that the injury was "dangerous to life", meaning

both the times the same thing. (see Atma Singh v. State of

Punjab)1.

18) The Supreme Court in the matter of Pandurang and others

v. State of Hyderabad2 has held that a blow on the head

with an axe which penetrates half of an inch into the head is

likely to endanger life and would fall within the definition of

"grievous hurt" and setting aside the conviction under Section

302 of IPC, convicted the accused therein under Section 326

of IPC.

19) Similarly, in the matter of M/s. Formina Sebasio Azardo

and another v. State of Goa 3 their Lordships of the Supreme

Court held that the nature of injuries found on the deceased

attract the definition falling under clause (viii) of Section 320

of the IPC establishing that the injuries were such to

endanger the human life set aside the conviction under

Section 302 of IPC and sentenced them imprisonment for a

period of 5 years.

20) The Supreme Court in the matter of State of Karnataka v.

Shivalingaiah4 their Lordship of the Supreme Court have

held that the act of squeezing testicles is dangerous to

human life. It actually lead to the cardiac arrest and thus 1 1980 CrLJ 1226 2 AIR 1955 SC 216 3 AIR 1992 SC 133 4 AIR 1988 SC 115

would clearly to be covered by Section 320 of the IPC and

therefore, amounts to grievous hurt.

21) Reverting to the facts of the present case in light of

definition of grievous hurt and the principles of law laid down

by their Lordships of the Supreme Court in M/s. Formina

Sebastio Azardeo (supra), State of Karnataka (supra), it is

quite vivid that nature of injuries as noticed by Dr. Azad

Ahmed Siddiue (PW/11) in Ex.P/25 was not only dangerous

but has ultimately taken life of Meenabai (deceased). Taking

into consideration the statements of Nanakchand Dahariya

(PW/1) and Agarchand Dahariya (PW/2), brothers of the

deceased, it is established that witchcraft had been played by

Vishwajeet (juveile) at the house of appellant herein and

statement of Omprakash Dahariya (PW/3), nephew of the

deceased, Mona Prasad Dahariya (PW/4), Dularvin Bai (PW/

13), revealed that the co-accused Vishwajeet (juvenile)

practiced and treated the deceased by witchcraft, as such,

the two appellants herein had neither intention to cause

death, nor had knowledge that assault made by them is likely

to cause the death of Meenabai and their act of beating her

would fall within the offence under Section 325/34 of Indian

Penal Code, as such, conviction of the appellants for the

offence under Section 302 IPC is set-aside and similarly as

there is no evidence against the appellants for offence

Section 7 of the Act, 1954, the same is also set-aside and

instead thereof the appellants the appellants are convicted for

offence under Section 325/34 IPC. Since the appellants have

served more than three years of jail sentence, taking into

consideration the period they have already undergone, we

award the sentence to the appellants for the period already

undergone by them and it is directed that the appellants be

released forthwith, if not required in any other offence.

22) Accordingly, this criminal appeal is partly allowed to the

extent indicated herein-above.

        Sd/-                                        Sd/-

(Sanjay K. Agrawal)                     (Rakesh Mohan Pandey)
      Judge                                    Judge




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