Chattisgarh High Court
Gendram Kol vs State Of Chhattisgarh on 22 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 676 of 2017
Gendram Kol, S/o Daddi Kol, Aged about 38 years,
R/o Schoolpara, Latkoni, Police Station Pendra,
Distt. Bilaspur, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Station House
Officer, Police Station Pendra, Distt. Bilaspur,
Chhattisgarh.
Respondent
For Appellant : Mr. Krishna Kumar Dewangan, Advocate
For State : Mr. Soumya Rai, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
22/06/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC
is directed against the impugned judgment of
conviction and order of sentence dated 20/09/2013
passed by learned Additional Sessions Judge,
Pendraroad in Sessions Trial No. 27/2013 whereby
the appellant/accused has been convicted for
offence punishable under Section 302 of IPC and
has been sentenced to life imprisonment and fine
of Rs. 200/, in default of payment of fine
additional R.I. for two months.
2. The case of the prosecution, in brief, is that on
27/03/2013 at about 04:00 PM at village Latkoni
Kala, the appellant assaulted his elder brother
Jeevanlal with a farsa (sharp edged weapon) on
account of dispute with regard to electricity
connection due to which Jeevanlal suffered
grievous injuries and died instantaneously and
the appellant thereby committed the offence.
3. Further case of the prosecution, in brief, is
that on 27/03/2013, complainant Gangabai Kol
(wife of deceased Jeevanlal) lodged FIR (Ex.
P/10) against the appellant at Police Station
Pendra stating that her house is next to the
house of the appellant and their electricity
connection had come from the appellant's house.
On the morning of 27/03/2013, the appellant had
quarreled with Jeevanlal and had threatened to
cut off their electricity connection. In the
afternoon, complainant Gangabai Kol as well as
her husband Jeevanlal advised the appellant but
he did not listen to them and disconnected their
electricity connection after which the
complainant and her husband said they would light
a lamp and thereafter, the appellant returned to
his house. At about 4 o'clock in the evening,
Jeevanlal sat just outside the door of his house
to eat food and his wife Gangabai Kol was serving
her food when the appellant came to their house
armed with a farsa and hit four times behind
Jeevanlal's neck from the sharp edged side of the
weapon due to which he died on the spot.
Thereafter, the complainant started shouting and
her nephew Bablu (P.W.2) and neighbour Sewakdas
(P.W.3) came on the spot and the appellant ran
away towards the school along with the farsa.
4. On the said report, merg intimation (Ex. P/9) was
registered and inquest was conducted vide Ex. P/1
and thereafter, the dead body of deceased
Jeevanlal was sent for postmortem. The postmortem
report has been filed as Ex. P/6 according to
which the mode of death was coma due to
hemorrhage and shock and the nature of death is
homicidal. The appellant was arrested vide Ex.
P/12 and his memorandum statement was recorded
vide Ex. P/3 pursuant to which the farsa was
recovered vide Ex. P/4 and it was sent for
chemical examination but no FSL report has been
brought on record. The Statement of the
complainant as well as the witnesses were taken
and after due investigation, the
appellant/accused was chargesheeted for offence
punishable under Section 302 of IPC which was
committed to the Court of Session for hearing and
disposal in accordance with law. The
appellant/accused abjured his guilt and entered
into defence.
5. In order to bring home the offence, prosecution
examined 8 witnesses and brought into record 18
documents. Statement of the appellant/accused was
recorded under Section 313 of CrPC wherein he
denied guilt, however, he examined none in his
defence.
6. Learned trial Court, after appreciating the oral
and documentary evidence on record, proceeded to
convict the appellant/accused for offence
punishable under Section 302 of CPC and sentenced
him as aforesaid which has been called in
question by way of the instant appeal.
7. Mr. Krishna Kumar Dewangan, learned counsel for
the appellant/accused, would submit that
prosecution has failed to bring home the offence
beyond reasonable doubt as the memorandum as well
as seizure witnesses have turned hostile and the
appellant/accused has been convicted for offence
punishable under Section 302 of IPC only on the
basis of sole testimony of complainant Gangabai
Kol (P.W.1), as such, the conviction of the
appellant/accused for offence punishable under
Section 302 of IPC deserves to be set aside.
8. Per Contra, Mr. Soumya Rai, learned State
counsel, would submit that prosecution has
brought sufficient evidence in shape of oral and
documentary evidence to convict the appellant for
offence punishable under Section 302 of IPC, as
such, learned trial Court has rightly convicted
him for the said offence on the basis of the
testimony of Gangabai Kol (P.W.1).
9. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
10. The first question for consideration would be,
whether the death of deceased Jeevanlal was
homicidal in nature ?
11. At this stage, it would be appropriate to notice
the description of the injuries suffered by the
deceased, which are as follows :
"(1) गरर न कके पपिछलके भभाग एवव गरर न कके बकेस तक एक कटभा हह आ घभाव
13cm x 3 cm थभा तथभा वह 5 cm गहरभा थभा, घभाव खखन सके सनभा हह आ थभा
तथभा घभाव सके तभाजभा खखन भभी बह रहभा थभा । उसकके ममॉसपिकेशभी कट गयके थके , जजसमम
पक आक्सभीपिभीटटो फफैन्टकेजलश कभा आक्सभीपिभीटल भभाग रकेपिभीजकेपमय ममॉसपिकेसभी,
इन्स्टनटोपिकेजसऑल ममॉसपिकेसभी तथभा गकेटर ऑक्सभीपिभीटल नबर कटभा हह आ थभा ।
(2) ममृतक कके 6 एवव सवभारकक्ल हडभी सतह कके उपिर एक कटभा हह आ घभाव थभा,
जजसकभा आकभार 12cm x 6cm x 5cm थभा । गरर न ककी पपिछलके भभाग ककी
ममॉसपिकेपशयमॉ कटभी हह ई थभी । उसकके एक्सकेन्टट नल ज्यखनर वकेन, इन्टट नल जयखनर वकेन
कटभी हह ई थभी ।
(3) ममृतक कके बमॉए स्ककेपिपुलभा हडभी कके सतह कके उपिर एक कटभा हह आ घभाव थभा,
जजसकभा आकभार 4cm x 2cm x 2cm थभा ।
(4) ममृतक कके बमॉए भपुजभा कके उपिरभी भभाग पिर एक फटभा हह आ घभाव थभा जजसकभा
2cm x 0.05cm तथभा हड़डभी तक गहरभा थभा ।"
12. Learned trial Court has recorded an affirmative
finding with regard to this question on the basis
of postmortem report (Ex. P/6) wherein Dr. Hemant
Tanwar (P.W.6), who has conducted the
postmortem, has opined that the cause of death is
coma due to hemorrhage and shock after injuries
over posterior part of neck and the nature of
death is said to be homicidal. As such, after
going through the postmortem report (Ex. P/6) and
after going through the medical evidence of Dr.
Hemant Tanwar (P.W.6), we are of the considered
opinion that learned trial Court is absolutely
justified in holding that death of deceased
Jeevanlal was homicidal in nature. Moreover, the
fact that the death of the deceased is homicidal
in nature has also not been seriously disputed by
learned counsel for the appellant. As such, the
finding recorded by the trial Court that the
death of deceased Jeevanlal is homicidal in
nature is hereby affirmed.
13. The next question for consideration is whether
the trial Court is justified in convicting the
appellant for offence punishable under Section
302 of IPC ?
14. Gangabai Kol (P.W.1), wife of deceased
Jeevanlal, is the eyewitness of the incident and
admittedly, she was present in the house when the
appellant came and assaulted the deceased with a
farsa as at that time she was serving food to her
husband. She has been subjected to cross
examination but in paragraph 4 she has reiterated
that she has seen the incident wherein the
appellant assaulted her husband with farsa. She
has refuted the fact that she had a strange
relationship with her husband and she has also
refuted that she has falsely implicated the
appellant in the crime in question. As such,
learned trial Court is justified in relying upon
the testimony of Gangabai Kol (P.W.1) that she
has seen the appellant assaulting her husband.
15. Similarly, after the incident had occurred, it
was reported by the complainant Gangabai Kol
(P.W.1) to the Police Station and after merg
enquiry, FIR (Ex. P/10) was lodged against the
appellant and pursuant to his memorandum
statement (Ex. P/3), recovery of farsa has been
made from the possession of the appellant. Though
it has been disputed that the said farsa was not
stained with blood and it was sent for chemical
examination but FSL report has not been brought
on record but the description and nature of the
injuries suffered by the deceased, as noticed
hereinabove, would show that the appellant
caused four injuries by farsa on the posterior
part of the neck of the deceased as well as on
his spinal cord on account of which he died on
the spot.
16. As such, considering the greivous injuries
suffered by the deceased on his neck which is a
vital part of the body and the recovery of farsa
from the possession of the appellant pursuant to
the memorandum statement though memorandum
witnesses namely Ajay Kumar Shukla (P.W.4) and
Ajay Kol (P.W.5) have turned hostile and have
not supported the case of the prosecution, but
the Investigating Officer has clearly supported
the case of the prosecution, we are of the
considered opinion that there is sufficient
material on record to connect the appellant from
the crime in question. Merely because memorandum
and seizure witnesses have turned hostile, the
statement of Investigating Officer (P.W.8)
cannot be discarded. Apart from this, the motive
of the appellant to cause murder of his brother
is quite apparent from the fact that though the
deceased and his family had taken electricity
connection from the house of the appellant and
after a brief dispute he had disconnected their
connection abruptly but the deceased and his wife
were still satisfied and did not hold any grudge
yet the appellant entered his house armed with a
farsa and caused greivous injuries on the neck
and back of the deceased. The appellant had taken
advantage of the deceased being unarmed and ready
to eat food which was being served by her wife,
as such, the motive of the offence is also
available on record. In that view of the matter,
we are of the considered opinion that learned
trial Court is absolutely justified in convicting
the appellant for offence punishable under
Section 302 of IPC. We do not find any merit in
the instant appeal.
17. Accordingly, this criminal appeal, deserves to be
and is hereby dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
