Chattisgarh High Court
Gajraj Rajwade vs State Of Chhattisgarh on 4 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1328 of 2014
Gajraj Rajwade S/o Sahdev-Rajwade Aged About 42 Years, R/o Village -
Darhora, Thana - Chandaura, Distt. - Surajpur, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh Through- Thana Incharge Cahndaura, Distt.-
Surajpur, Chhattisgarh
---Respondent
For Appellant : Mr. Anurag Verma, Advocate.
For State/Respondent : Mr. Soumya Rai, Panel Lawyer.
D.B.:- Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
Judgment on Board
Per R.C.S. Samant, J.
04/03/2022
1. This criminal appeal has been preferred against the judgment of
conviction and order of sentence dated 28.10.2014 passed by the learned
Additional Sessions Judge, Pratappur, District- Surajpur, Chhattisgarh in
Sessions Trial No.425/2011 convicting the accused/appellant for
commission of offence under Section 302 of the Indian Penal Code and
sentencing him to undergo rigorous imprisonment for life with fine of
Rs.500/- with default stipulation.
2. The prosecution case, in brief, is this that on the date of incident i.e.
07.06.2011 at about 06:30 a.m., deceased Dhanmeth, Ramdhari Rajwade
(P.W.-1) and others were cutting bamboo from kitchen-garden (बबड़ड़). The
appellant came on the spot and asked deceased- Dhanmeth and others
not to cut bamboo. Deceased- Dhanmeth had an argument with the
appellant. It was during this argument, the appellant inflicted one injury
by axe on left ankle of deceased- Dhanmeth and when she was about to
fall, he inflicted another injury with the same axe on her back below her
neck, due to which, Dhanmeth became unconscious. FIR was lodged by
Ramdhari Rajwade (P.W.-1), which was initially registered for commission
of offence under Section 307 of IPC. Dr. Vinod Kumar Painkra (P.W.-11)
medically examined Dhanmeth (deceased) and noticed injuries on left
side of her back below neck and on her left ankle, which were lacerated
wounds. Dhanmeth (deceased) was then referred to District Hospital,
Ambikapur for further treatment. The doctor had given report vide
Ex.P/19. Dhanmeth (deceased) remained admitted in Dr. B.R. Ambedkar
Hospital, Raipur, C.G. from 07.06.2011, who died on 30.06.2011. On the
information given by hospital, unnumbered morgue intimation was
recorded in Police Station- Madhopara on 30.06.2011. Subsequent to
which, numbered morgue intimation was recorded by Police Station
having jurisdiction on 14.07.2011 vide Ex.P/11. Inquest procedure was
conducted and inquest report was prepared vide Ex.P-7. Crime Details
Form was prepared vide Ex.P/2. Dr. Shiv Narayan Manjhi (P.W.-9)
conducted the postmortem examination on the body of deceased
Dhanmeth and opined vide his report Ex.P/9 that death of deceased had
resulted from the injuries present on her body. Spot map was prepared
by Revenue Officer vide Ex.P/3. Bloodstained soil, plain soil and shorn
hairs of deceased were seized from the spot vide Ex.P/4. Hairs of
deceased were cut and collected, her clothes were seized from Ramdhari
Rajwade (P.W.-1) vide Ex.P/5. Axe/weapon of offence, was seized from
possession of appellant vide Ex.P/8. Accused/appellant was formally
arrested. Statement of witnesses were recorded under Section 161 of
Cr.P.C. On completion of investigation, charge-sheet was filed before the
Court having jurisdiction.
3. After the committal proceedings, the learned Sessions Judge took
cognizance of the offence and framed charge against the appellant under
Section 302 of I.P.C. Appellant abjured his guilt and prayed for trial. The
prosecution examined 11 witnesses in all. On completion of prosecution
evidence, the appellant was examined under Section 313 of Cr.P.C., in
which, he denied all the incriminating evidence present against him and
pleaded innocence and false implication. No witness was examined in
defence. The learned Sessions Judge after granting opportunity of
hearing to the prosecution and the defence, delivered the impugned
judgment.
4. It is submitted by the counsel for the appellant, that the conviction of
appellant under Section 302 of I.P.C. is totally erroneous and
unsustainable. From the testimony of eyewitness- Ramdhari Rajwade
(P.W.-1), it is clear that there had been an argument of appellant with
deceased- Dhanmeth before he inflicted injuries upon her with an axe
and this stands corroborated from the testimony of Man Sai (P.W.-3), who
has stated in his statement about argument that took place between
them. Similar statement has been made by Kunti Bai (P.W.-8) also.
Therefore, it was the case of sudden provocation because of which the
appellant lost his self-control and inflicted injury upon the deceased.
5. It is also submitted that there had been a previous enmity between the
appellant and the deceased and her other family members. The incident
in this case is clearly not an offence under Section 302 of I.P.C. as all the
ingredients constituting commission of offence of murder are missing.
Deceased- Dhanmeth did not die immediately. She was admitted in the
hospital and she died on 30.06.2011 i.e. after about 23 days from the date
of incident. The doctor conducting postmortem examination has
mentioned in the report Ex.P/9 that the injuries of the deceased were
healed, therefore, opinion given by him that cause of death had been the
injuries, is contradictory to the findings recorded by him. In the
alternative, it is submitted that act committed by appellant will come
within the ambit of Exception 4 to Section 300 of I.P.C. Appellant is in jail
for the last 10 years & 8 months. Hence, it is prayed that conviction of
appellant be converted into Section 304 Part II of I.P.C. and appellant be
sentenced to the period already undergone by him.
6. Learned State counsel opposes the submissions made by counsel for
appellant and submits that prosecution has proved its case beyond
reasonable doubt. The learned trial Court has not committed any error in
convicting the appellant for commission of offence under Section 302 of
I.P.C. Eyewitness account of Ramdhari Rajwade (P.W.-1), Man Sai (P.W.-3)
and Kunti Bai (P.W.-8) very clearly support the prosecution case and
further the opinion of the Dr. Shiv Narayan Manjhi (P.W.-9) corroborates
the evidence given by the eyewitnesses. Hence, it is a case of intentional
murder. No case is made out for conversion of conviction of appellant
from Section 302 of I.P.C. to Section 304 Part II of I.P.C. Hence, the Appeal
is liable to be dismissed.
7. It is not being disputed that deceased- Dhanmeth was inflicted injuries by
the appellant with an axe and that the deceased- Dhanmeth has died
subsequent to that. The submission that the injuries caused by the
appellant were not direct cause of death of deceased, is taken into
consideration.
8. Dr. Vinod Kumar Painkra (P.W.-11) has examined the injury of Dhanmeth
on 07.06.2011, who found one lacerated wound on the scapular region
measuring 15x5 cm by which, the scapular bone was exposed. He had
found another lacerated wound on left leg above the ankle measuring
4x8 cm by which, the bone was exposed. He had advised for X-ray
examination vide his report Ex.P/19. The deceased was admitted for
treatment subsequent to which, she has died on 30.06.2011.
9. The post-mortem examination was conducted by Dr. Shiv Narayan Manjhi
(.P.W.-9). He has mentioned in his postmortem report Ex.P/9 presence of
the injuries which had healed to some extent and after mentioning the
other findings, he has opined that the cause of death of the deceased
was cardio-respiratory arrest which had occurred due to the
complications from the injuries which had been suffered by the deceased
and it is also his opinion that the death of the deceased was homicidal. In
cross-examination, there is no challenge to the opinion given by him that
death had resulted from the complications due to the injuries caused to
the deceased. Hence, it is not a case of immediate death but according to
the proof present in the case, the injuries caused to the deceased had
been the cause of her ultimate death. Therefore, the submissions made
by the appellant side on this point is not sustainable.
10. Another ground raised is taken into consideration and it is examined
whether all the ingredients for conviction under Section 302 of I.P.C. are
present against the appellant or not.
11. Ramdhari Rajwade (P.W.-1) stated that on the date of incident, deceased-
Dhanmeth and her family were cutting bamboo from the badi (बबड़ड़).
Appellant attempted to stop them from cutting bamboo after which he
had argument with deceased- Dhanmeth and it was during this argument,
he inflicted injuries on the deceased regarding which F.I.R. vide Ex.P/1
was lodged by this witness. In cross-examination, he has admitted that his
family and the appellant were separately earning their livelihood and
there had been no partition of the joint property between them.
However, there had been dispute regarding partition present.
12. Dev Kumari (P.W.-2) is not the witness of this argument.
13. Man Sai (P.W.-3) has supported the statement made by Ramdhari Rajwade
(P.W.-1), according to which, there had been an argument regarding
cutting of bamboo and subsequent to that, the appellant inflicted injury
on the deceased. As it has been almost conceded by the appellant that
the appellant had inflicted injuries on deceased, therefore, there is no
need to make scrutiny of the evidence regarding seizure and other
proceedings. It is only the circumstances in which the appellant had acted
needs consideration.
14. On close scrutiny of the evidence present in the case, it is evident that
the things had been normal before the deceased and her family members
started cutting bamboo from the badi(बबड़ड़). The appellant objected, on
which the deceased and others argued with him and then the incident of
inflicting injuries on the deceased occurred. It appears that appellant did
not have any intention from the beginning to inflict injury upon the
deceased, however, he had done so in the heat of the argument. It
appears to be a case covered under Exception 1 to Section 300 of Indian
Penal Code. The appellant in this case was deprived of the power of self-
control as reiterated by the argument made by the deceased and also the
retaliation to his objection with respect to cutting of bamboo from the
badi(बबड़ड़) and according to the evidence, it was the deceased, who was
arguing with the appellant, therefore, it can be said that she was the
person who had given provocation to the appellant. It is concluded
accordingly that the occurrence has taken place in this manner. The
argument on behalf of the appellant in this respect appears to be
sustainable that the ingredients to make out a case under Section 302 of
I.P.C. are not present in this case and according to the conclusion drawn,
the offence committed by the appellant is culpable homicide not
amounting to murder, which is an offence punishable under Section 304
part I of Indian Penal Code.
15. After consideration on all the submissions, the evidence and the law
applicable, we are of this view that this Appeal is fit to be allowed in part.
16. The appeal is allowed in part. The conviction and sentence against the
appellant under Section 302 of I.P.C. is set aside. The appellant is now
convicted under Section 304 Part I of I.P.C. As in this case, the facts and
circumstances are not fit for punishing the appellant with life
imprisonment, therefore, the other punishment prescribed under Section
304 part I of I.P.C. is of maximum 10 years' rigorous imprisonment
appears to be appropriate. The appellant is in jail since 07.06.2011 and
therefore, has undergone more than 10 years in jail, therefore, it is
ordered that the appellant be sentenced with period of detention
already undergone by him in jail. The appellant shall be released from
custody immediately in case, there is no other reason to detain him in any
other case.
17. Accordingly, the Criminal Appeal stands disposed off.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Nisha/Monika
