Chattisgarh High Court
Shiv Prasad Dhruw vs State Of Chhattisgarh on 3 January, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.553 of 2014
Shiv Prasad Dhruw, son of Phakulal Dhruw, aged about 35 years, Caste
Gond, resident of Village Sarseni, Police Station Hirri, Civil and Revenue
District Bilaspur, Chhattisgarh
---- Appellant
versus
State of Chhattisgarh through Station House Officer, Police Station Hirri, Civil
and Revenue District Bilaspur, Chhattisgarh
--- Respondent
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For Appellant : Smt. C.K. Navrang, Advocate
For Respondent : Shri Soumya Rai, Panel Lawyer
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Hon'ble Shri Justice Rajendra Chandra Singh Samant
Hon'ble Shri Justice Arvind Singh Chandel
Judgment on Board
Per Arvind Singh Chandel, J.
3.1.2022
1. The instant appeal has been preferred by the accused against the
judgment dated 30.10.2012 passed by the 5 th Additional Sessions
Judge, Bilaspur in Sessions Trial No.25 of 2012, whereby the
accused has been convicted under Section 302 of the Indian Penal
Code and sentenced to undergo imprisonment for life and pay fine
of Rs.100 with default stipulation.
2. According to the case of prosecution, on 19.11.2011 at about 7
p.m., deceased Naresh Nut and Rajkumar (PW13) were consuming
liquor in the house of Rajkumar (PW13). At that time, the Appellant
came there and he also demanded liquor from them. On replying
by Rajkumar (PW13) that the liquor is finished, the Appellant
assaulted him by his hands and fists. The deceased asked the
Appellant why he assaulted a weak person and tried to intervene.
On this, the Appellant assaulted the deceased with the help of a
Tabbal. As a result of the assault, the deceased sustained
grievous injuries on head. He was taken to the hospital where he
died during the course of treatment. On the basis of memorandum
of the hospital, morgue intimation (Ex.P9) was registered. After
morgue inquiry, First Information Report (Ex.P15) was registered.
Statements of witnesses were recorded under Section 161 of the
Code of Criminal Procedure. On completion of the investigation, a
charge-sheet was filed against the Appellant. The Trial Court
framed charge against him.
3. To rope in the Appellant, the prosecution examined as many as 14
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 the
Appellant has been wrongly convicted by the Trial Court. The
conviction is based upon the statements of eyewitnesses Rajkumar
(PW13) and Shantibai (PW14), but, there are material
contradictions and omissions in their statements and, therefore,
their statements are not reliable and thus, the conviction of the
Appellant is not sustainable.
6. Learned Counsel appearing for the State, opposing the argument
advanced by Learned Counsel appearing for the Appellant,
supported the impugned judgment of conviction and sentence. It is
submitted that the statements of Rajkumar (PW13) and Shantibai
(PW14) are reliable and Shakunbai (PW3) has also corroborated
the prosecution case. It is submitted 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 of the Trial Court with due care.
8. Post mortem examination over the dead body of Naresh Nut was
conducted by Dr. Dharmendra (PW12) on 21.11.2011. He gave
post mortem report (Ex.P22), according to which, the deceased had
sustained a fracture on the skull of 13 cms. length. A sub-dural
hematoma was present in the occipital region. As reported by Dr.
Dharmendra (PW12), cause of the death was cardio respiratory
failure as a result of coma due to the head injuries.
9. As regards the incident, both the eyewitnesses Rajkumar (PW13)
and Shantibai (PW14) deposed that at the time of incident,
deceased Naresh Nut and Rajkumar (PW13) were consuming
liquor in the house of Rajkumar (PW13). The Appellant came there
and demanded liquor. When it was told by Rajkumar (PW13) that
liquor was finished, the Appellant first assaulted Rajkumar (PW13)
by his fists. It is further deposed that when the deceased asked the
Appellant why he assaulted a weak person and asked him to
assault him, the Appellant assaulted the deceased with the help of
a Tangiya. As a result of the assault, the deceased sustained
injuries on head. Shantibai (PW14), who is wife of Rajkumar
(PW13) has also supported the statement of Rajkumar (PW13) and
categorically deposed that she witnessed the incident. Though
there are some contradictions and omissions in the statements of
Rajkumar (PW13) and Shantibai (PW14), they are not material. On
the point of assault made by the Appellant on the deceased with a
Tangiya, both the eyewitnesses Rajkumar (PW13) and Shantibai
(PW14) remained firm during their cross-examination. Shakunbai
(PW3), wife of the deceased also deposed that when she reached
the house of Rajkumar (PW13), at that time, she saw that her
husband/the deceased was suffering. Then her husband was
taken to the hospital. In the hospital, Rajkumar (PW13) told her
that the deceased was assaulted by the Appellant with a Tangiya.
The above statement of Shakunbai (PW3) is also not rebutted
during her cross-examination.
10. On a minute examination of the statements of Rajkumar (PW13),
Shantibai (PW14) and Shakunbai (PW3), it is well established that
the Appellant assaulted the deceased with the help of a Tangiya
and as a result of the assault the deceased sustained injuries on
head and later on he died during the course of treatment. Though
Dr. Dharmendra (PW12), who conducted post mortem examination
over the dead body of the deceased, has not stated nature of the
death in his report (Ex.P22), from the statements of Rajkumar
(PW13), Shantibai (PW14) and Shakunbai (PW3) it is well
established that nature of the death was homicidal.
11. From the statements of eyewitnesses Rajkumar (PW13) and
Shantibai (PW14), it is clear that initially the deceased and
Rajkumar (PW13) were consuming liquor and at that time the
Appellant came to them and asked for liquor from them. When they
denied availability of liquor, the Appellant first assaulted Rajkumar
(PW13). Then, on being asked by the deceased from the Appellant
why he assaulted a weak person and asked him to fight with him,
the alleged incident took place in the heat of passion upon a
sudden quarrel. We are of the considered view that the act
committed by the Appellant is covered by Exception 4 of Section
300 of the Indian Penal Code.
12. Considering the facts of the case and the evidence adduced by the
prosecution, it is established that the injuries suffered by the
deceased were not caused by the Appellant with an intention to
cause his death, but, were caused with the knowledge that the
same could cause his death. Therefore, in our considered opinion,
the act committed by the Appellant falls within the ambit of Section
304 Part II of the Indian Penal Code. Hence, conviction of the
Appellant is altered from Section 302 of the Indian Penal Code to
Section 304 Part II of the Indian Penal Code.
13. The Appellant is in jail since 28.11.2011 and has completed jail
sentence of more than 10 years. For the offence under Section
304 Part II of the Indian Penal Code, he is sentenced with the
period of imprisonment already undergone by him. Sentence of
fine of Rs.100 is also imposed upon him. In default of payment
thereof, he shall be liable to undergo additional rigorous
imprisonment for 1 month. If any amount has already been
deposited towards fine, the same shall be adjusted against the fine
imposed today.
14. Consequently, the appeal is allowed in part to the extent indicated
above.
Sd/- Sd/-
(Rajendra Chandra Singh Samant) (Arvind Singh Chandel)
Judge Judge
Gopal
