Chattisgarh High Court
Kumma Bhaskar vs State Of Chhattisgarh on 6 July, 2022
CRA-1403-2021
Page 1 of 8
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1403 of 2021
Kumma Bhaskar, S/o Sukhram Bhaskar, aged about 25 years, Resident of
Balempara Gamawada, Police Station Bhansi, District Dantewada,
(Chhattisgarh)
---- Appellant
Versus
State of Chhattisgarh, through the Station House Officer, Police Station
Bhansi, District Dantewada (Chhattisgarh)
---- Respondent
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For Appellant : Mr. Dhirendra Prasad Mishra, Advocate
For Respondent-State : Mr. Sudeep Verma, Government Advocate &
Mr. Somya Rai, Panel Lawyer
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DB: Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Order on Board
(06.07.2022)
Sanjay K. Agrawal, J
(1) This criminal appeal filed by the appellant/accused under Section
374(2) of Cr.P.C. is directed against the impugned judgment of conviction
and order of sentence dated 23.09.2021, passed by the Court of learned
Sessions Judge, South Bastar, District Dantewada (C.G.) whereby the
appellant/accused has been convicted for offence under Section 302 of IPC
and sentenced to undergo life imprisonment with fine of Rs.500/- and, in
default of fine, rigorous imprisonment of 03 months.
(2) The case of the prosecution, in brief, is that on 19.09.2017 at about
06:00 PM in the evening at Village Gamawada Balempara the appellant
herein assaulted Joga Bhaskar (deceased) by means of iron pipe on the
pretext that he is involved in the act of witchcraft and thereby committed the
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offence under Section 302 of IPC and also under Sections 04 & 05 of the
Chhattisgarh Tonahi Pratadna Nivaran Act, 2005 (for short the "Act of 2005").
(3) The further case of the prosecution, in brief, is that on 19.09.2017
deceased- Joga Bhaskar after having food and consuming liquor had gone
out of his house and did not return back. On the next day i.e. 20.09.2017, in
the morning, when Smt. Lakkho Bhaskar (PW-01) was going to attend the
call of nature, she saw Joga Bhaskar (deceased) lying dead in front of
Bheema Baras's house and his dead-body is bloodied, thereafter, she
immediately informed Lachchhu Bhaskar (PW-02), who in turn, informed
about the said incident to Smt. Torko Bhaskar (PW-03), wife of the deceased-
Joga Bhaskar. Thereafter, a meeting of villagers was convened in the village,
in which the accused-appellant herein informed that deceased- Joga Bhaskar
was involved in the act of black magic/witchcraft, used to threatened his
family members and used to send snakes by spells (magic) and, on account
of which, the accused-appellant herein ensued a dispute with deceased-
Joga Bhaskar, threatened him to kill and in furtherance thereof assaulted him
by means of iron pipe on his head and committed his murder. Thereafter, at
the instance of Smt. Torko Bhaskar (PW-03), marg intimation (Ex.P/03) was
recorded and on the basis of which FIR (Ex.P/04) vide Crime No.35 of 2017
was also registered against the accused-appellant at Police Station Bhansi,
District Dantewada (CG) for offences punishable under Sections 302 of IPC
and also under Sections 04 & 05 of the Act of 2005. Spot map was prepared
vide Ex.P/08 and 'Panchnama' was prepared vide Ex.P/09. Appellant was
arrested vide Ex.P/12 and his memorandum has been recorded vide Ex.P/10
and pursuant to which a blood stained iron pipe was sized vide seizure
memo (Ex.P/11) and the same was sent to FSL for examination. In the FSL
report (Ex.P/23) it has been stated that blood was found in the said iron pipe,
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but it could not be gathered/ascertained that the said blood is human blood
or not. The dead-body of deceased- Joga Bhaskar was sent for postmortem
examination vide Ex.P/18 and, in the postmortem report (Ex.P/25), it has
been opined that cause of death is due to combined effect of head injury,
hemorrhage and shock and mode of death is homicidal in nature. The
postmortem of deceased was conducted by Dr. Nityanand Kumar, but on
account of his transfer to some other place, Dr. Alok Minj (PW-10) has given
statement before the Court and proved the postmortem report (Ex.P/25).
Thereafter, statement of witnesses were recorded and after due
investigation, the police filed charge-sheet in the Court of Judicial Magistrate
First Class, Bacheli, District Dantewada (CG) and, thereafter, the case was
committed to the Court of Sessions. The appellant/accused abjured his guilt
and entered into defence.
(4) The prosecution in order to prove its case examined as many as 10
witnesses and exhibited 26 documents, whereas the appellant/accused
examined none in his defence and has not exhibited any document.
(5) The learned trial Court after appreciating the oral and documentary
evidence available on record proceeded to convict the appellant only for
offence under Sections 302 of IPC and awarded sentence as mentioned
herein-above, against which this appeal has been preferred by the appellant/
accused questioning the impugned judgment of conviction and order of
sentence dated 23.09.2021.
(6) Mr. Dhirendra Prasad Mishra, learned counsel for the appellant
submits that the learned trial Court is absolutely unjustified in convicting the
appellant for offence under Section 302 of IPC as there is no cogent and
admissible evidence available on record to hold the present appellant guilty
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for the said offence. He submits that even the alleged recovery of blood
stained iron pipe pursuant to memorandum statement of the appellant-
accused has not been proved by any independent witnesses, as they have
not supported the case of the prosecution. Further, in the FSL report
(Ex.P/23) it has been stated that blood was found in the said iron pipe, but it
could not be gathered/ascertained that the said blood is human blood only
and there is no report from Serologist to that effect and, as such, the
appellant deserves to be acquitted from the charges under Section 302 of
IPC. In alternative, learned counsel for the appellant submits that even if the
act of the appellant in committing murder of the deceased is found to be
proved, but there is no intention on the part of the appellant to cause death of
the deceased, therefore it is an act of culpable homicide not amounting to
murder, therefore, it is a fit case where the conviction of the appellant can be
converted to an offence under Section 304 Part-II of IPC, hence, the present
appeal deserves to be allowed in full or part.
(7) Per-contra, Mr. Sudeep Verma, learned State counsel supported the
impugned judgment of conviction and order of sentence and submits that the
prosecution has proved the offence beyond reasonable doubt by leading
evidence of clinching nature. The learned trial Court has rightly convicted the
appellant for offence under Section 302 of IPC and it is not a case where
conviction of the appellant under Section 302 of IPC requires to be altered to
Section 304 Part-II of IPC, thus, the present appeal deserves to be
dismissed.
(8) We have heard learned counsel for the parties, considered their rival
submissions made herein-above and went through the records with utmost
circumspection.
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(9) The first and foremost question is as to whether the death of the
deceased was homicidal in nature, which the learned trial Court have
recorded in affirmative by taking into consideration the statement of Dr. Alok
Minj (PW-10), who has duly proved the postmortem report (Ex.P/25),
conducted by Dr. Nitayanad Kumar, who could not be examined on account
of his transfer, as such, cause of death is held to be due to combined effect
of head injury, hemorrhage and shock and mode of death is held to be
homicidal in nature. Taking into consideration the nature of injuries which
deceased has suffered and the statement of Dr. Alok Minj (PW-10), we are of
the considered opinion that the learned trial Court is absolutely justified in
holding that the death of the deceased- Joga Bhaskar to be homicidal in
nature. Accordingly, we hereby affirmed the said finding.
(10) Now the next question would be whether the accused-appellant herein
is the author of the crime in question and, if yes, whether his act falls under
the purview of culpable homicide not amounting to murder and his conviction
under Section 302 of IPC can be converted to Section 304 Part-II of IPC, as
contended by learned counsel for the appellant.
(11) Pursuant to memorandum statement of the accused-appellant herein
(Ex.P/10) a blood stained iron pipe, which is used as a weapon for assaulting
the deceased, was recovered vide seizure memo (Ex.P/11), which fact has
been proved by Itwari Bhaskar (PW-05), Rajkumar Bhaskar (PW-06) and the
Investigating Officer, namely, Somesh Singh Baghel (PW-09). The learned
trial Court in its judgment after hearing learned counsel for the parties and
after appreciating the evidence and other material available on record opined
that the recovery of iron pipe vide Ex.P/11 pursuant to memorandum
statement of the appellant (Ex.P/10) has duly been proved and even the
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Investigating Officer, namely, Somesh Singh Baghel (PW-09) has proved the
disclosure/memorandum statement of the appellant (Ex.P/10) and seizure
memo (Ex.P/11). There is no reason to disbelieve the statement given by the
Investigating Officer, namely, Somesh Singh Baghel (PW-09). Not only this,
the said seized iron pipe was sent for FSL examination and in the FSL report
(Ex.P/23) also it has been stated that blood has been found on the said iron
pipe, though it could not be ascertained that the said blood is human blood or
not. Further, the learned trial Court has relied on the extra-judicial confession
made by the appellant before Smt. Torko Bhaskar (PW-03). A careful reading
of statement of Smt. Torko Bhaskar (PW-03) would show that though in her
examination-in-chief before the trial Court she has stated that the appellant
has made extra-judicial confession of committing murder of her
husband/deceased- Joga Bhaskar in the meeting of villagers, but in Para-23
of her cross-examination she has stated that she has no knowledge about
the meeting of villagers convened with regard to death of her husband- Joga
Bhaskar and, as such, the fact of extra-judicial confession is not established/
proved. But still, fact remains that certain incriminating circumstances are
available in this case, such as seizure of blood stained iron pipe, which is
used at the time of crime in question, vide seizure memo (Ex.P/11) pursuant
to the disclosure/memorandum statement of appellant-accused (Ex.P/10)
and further in the FSL report (Ex.P/23), blood has been found on the said
iron pipe, however it is not clear whether the said blood is human blood or
not. Further, motive that has been ascribed is clear from the statement of
Smt. Torko Bhaskar (PW-03), wherein in Para-09 of her examination-in-chief
before the Court she has stated that the appellant-accused had quarreled
with her husband/deceased- Joga Bhaskar on account of his involvement in
witchcraft activities and threatening his family members and, in furtherance
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thereof, had assaulted him by means of iron pipe and committed his murder.
Apart from that there is no evidence available on record to show that there is
old enmity between the appellant-accused and the deceased- Joga Bhaskar.
(12) Before proceeding further, it is significant to discuss here some tragic
facts involved in the present case. Village Balempara Gamawada, which
comes within the ambit of Police Station Bhansi, is a backward area and it is
a fact of common knowledge that the appellant and the deceased belonged
to under-developed community and most of them are illiterate and they
believe in superstitions. It is a common phenomena in the community
dominated areas that they practice magic and many other types of witchcraft
to achieve their object whether good or bad. They hold many superstitions
responsible for any misfortune and mis-happenings in their life and
sometimes they became revengeful for no other reason but for their own
doubts that someone is playing witchcraft on them or something wrong had
been happened in their family or life due to witchcraft played by someone.
Many a time, on the basis of their suspicion, they declare some woman as a
witch and even their panchayat passes weird/hippocratic orders against
them.
(13) In the instant case, the appellant was suspecting that the deceased-
Joga Bhaskar is involved in the act of witchcraft and, on that account, he
developed a plea of anger/protest, but he remained silent. There is nothing
on record to show that there is old enmity between the appellant-accused
and the deceased- Joga Bhaskar, but only on account of involvement of the
deceased in witchcraft activities, the appellant herein is said to have
murdered the deceased- Joga Bhaskar. Nothing serious was there. The
appellant has no criminal history. No brutality appears in the incident and no
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head or any grievous injury was caused. Thus, we are of the considered
opinion that though the appellant has caused injury with the knowledge that it
is likely to cause death of deceased- Joga Bhaskar, but there was no
intention or motive on his part to cause death of the deceased, as such, the
appellant has satisfied the four requirements namely: (i) it was sudden attack
on account of revenge; (ii) there was no premeditation; (iii) the act was done
out of revenge/vengeance and (iv) the appellant had not taken any undue
advantage or acted in a cruel manner and, therefore, the act of the appellant
would fall within the purview of Section 304 Part-II of IPC.
(14) Accordingly, in view of aforementioned discussions, the conviction of
the appellant under Section 302 of IPC and sentence of life imprisonment
with fine of Rs.500/- and, in default of fine, rigorous imprisonment of 03
months, awarded by the learned trial Court, is hereby set aside and, instead
thereof, he is convicted for offence under Section 304 Part-II of IPC. In view
of Constitution Bench judgment of Supreme Court in the matter of Willie
(William) Slaney vs. State of Madhya Pradesh1 as well as in the matter of
Joseph vs. State of Kerala2, the appellant herein is sentenced to undergo
rigorous imprisonment of 05 years with fine of Rs.250/-, and in default of fine,
additional rigorous imprisonment of 15 days.
(15) The criminal appeal is allowed in part to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
[email protected]
1 AIR 1956 SC 116
2 1995 SCC (Cri) 165
