Chattisgarh High Court
Devsai vs State Of Chhattisgarh on 7 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 223 of 2014
Devsai, Aged about 25 years, S/o Shri Ransai R/o
Ramnagar Dudhmaniapara, P.S. Basantpur, Distt.
Balrampur Ramanujganj, Chhattisgarh, Civil and
Revenue Distt. Ramanujganj, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through P.S. Basantpur,
Ramanujganj, Chhattisgarh.
Respondent
For Appellant : Mr. Ajay Mishra, Advocate
For State : Mr. Himanshu Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
07/03/2022
Sanjay K. Agrawal, J.
1. This criminal appeal is directed against the
impugned judgment of conviction and order of
sentence dated 02/01/2014 (Annexure P/1) passed
by learned Second Additional Sessions Judge,
Ramanujganj in Sessions Trial No. 237/2011
whereby the appellant/accused has been convicted
for offence under Section 302 of the IPC and he
has been sentenced to life imprisonment and fine
of Rs. 500/, in default of payment of fine
amount, further imprisonment for six months.
2. The case of the prosecution, in brief, is that on
20/03/2011 at about 7:00 PM, the appellant
assaulted Manmati, his sisterinlaw, on her head
with a spade which caused her death and he,
thereby, committed the aforesaid offence under
Section 302 of the IPC.
3. Further case of the prosecution is that appellant
and his wife Kalawati were residing at Village
Ramnagar, Police Station Basantpur and on
20/03/2011, his wife and other family members
celebrated the festival of Holi when at about
7:00 PM, appellant came to his house and asked
for food from his wife and after finding that his
wife served food with a little delay, he started
abusing her and threatened to kill her with a
spade. Meanwhile, Manmati, wife of the brother of
the accused (his sisterinlaw), came on the spot
and tried to resolve the dispute, but the
appellant did not take her advice and assaulted
Manmati thrice on her head with a spade by which
she fell down and due to grievous injury on her
head succumbed to death then and there.
Thereafter, upon hearing the noise, Memlal (P.W.
1), Heeraman (P.W.2) and Dheersai (P.W.14)
came on the spot of the incident and Memlal (P.W.
1) lodged merg and on that basis, offence under
Section 302 of the IPC was registered against the
appellant at Police Station Surajpur and
thereafter, the wheels of investigation started
running. Police reached the spot of the incident
and after summoning the witnesses vide Ex. P/1,
prepared inquest report (Ex. P/2). Thereafter,
the dead body of the deceased Manmati was sent
for postmortem to Community Health Centre,
Wadrafnagar, where Dr. R.B. Prajapati (P.W.7)
conducted the postmortem and submitted the report
vide Ex. P/6 holding the cause of death to be
syncope i.e. excessive bleeding caused by
lacerated wounds and head injury and the nature
of death to be homicidal. Thereafter, pursuant to
the memorandum of the appellant (Ex. P/11), a
spade was recovered from him vide Ex. P/12 in the
presence of the witnesses along with some other
articles which were sent for chemical analysis,
but the report has not been exhibited. The
statement of the appellant and the witnesses were
recorded under Section 161 of CrPC and charge
sheet was filed against the appellant and it was
committed to the Court of Session. The appellant
herein abjured his guilt and entered into
defence.
4. In order to bring home the offence, the
prosecution examined as many as 16 witnesses and
exhibited 16 documents whereas the
appellant/accused examined none in his defence.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, convicted the
appellant for offence under Section 302 of the
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.
6. Mr. Ajay Mishra, learned counsel for the
appellant, would submit that the prosecution
witnesses namely Kalawati (P.W. 6) and Smt.
Poonam (P.W. 11) on whom the trial Court has
placed reliance, have not been found trustworthy
in crossexamination. Even though they have
clearly admitted that they have not seen the
incident and though they have been declared
hostile, yet their testimony has been relied upon
by the trial Court and on that basis, the
appellant has been convicted. Alternatively, he
would also submit that the appellant had no
intention to commit murder of the deceased
Manmati as the quarrel was between the appellant
and his wife Kalwati and since the deceased
Manmati came to intervene in between, out of
grave and sudden anger, the appellant assaulted
her with spade on account of which she suffered
injuries and succumbed to death, therefore, this
case would be attracted under Section 304 Part II
of the IPC and since the appellant is already in
jail from 24/03/2011 i.e. for about eleven
years, taking the period already undergone, his
conviction is liable to be altered under Part II
of Section 304 IPC.
7. Mr. Himanshu Sharma, learned State counsel, would
support the impugned judgment of conviction and
submit that the trial Court has rightly convicted
the appellant for offence under Section 302 of
the IPC as he has caused grievous injury on the
head of the deceased which is a vital part of the
body and as such, it cannot be held that he did
not have any intention to cause the death of
Manmati and his conviction cannot be modified
under Section 304 Part II of IPC and the instant
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.
9. The first question for consideration would be,
whether the trial Court was justified in holding
that the death of the deceased Manmati was
homicidal in nature ?
10. Learned trial Court has clearly recorded a
finding based upon postmortem report (Ex. P/6)
that deceased Manmati suffered with lacerated
wound of 4cm x 2cm x 1cm over parietal part of
her skull which is caused by a hard and blunt
object and the bone of her temporal region was
found broken which caused Syncope i.e. excessive
bleeding and as such, she succumbed to death. As
such, the finding recorded by the trial Court
that the death of the deceased Manmati is
homicidal in nature appears to be based on
evidence available on record. Even otherwise,
learned counsel for the appellant has also not
seriously disputed the said finding recorded by
the trial Court. Accordingly, it is held that the
death of deceased Manmati is homicidal in nature
and the said finding recorded by the trial Court
is hereby affirmed.
11. The next question for consideration would be,
whether the appellant had the intention of
causing death of the deceased Manmati and whether
his conviction can be modified under Section 304
Part II of IPC ?
12. It is the contention of learned counsel for the
appellant that he was abusing his wife when
Manmati intervened in between their quarrel but
out of anger, the appellant assaulted Manmati
with spade. He did not have any intention of
causing death of Manmati.
13. At this stage, it would be appropriate to notice
Section 304 of the IPC, which states as under :
"304. Punishment for culpable homicide not
amounting to murder - Whoever commits
culpable homicide not amounting to murder
shall be punished with imprisonment for
life, or imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to
fine, if the act by which the death is
caused is done with the intention of
causing death, or of causing such bodily
injury as is likely to cause death,
Or with imprisonment of either
description for a term which may extend to
ten years, or with fine, or with both, if
the act is done with the knowledge that it
is likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause
death."
14. The Supreme Court in the matter of State v.
Sanjeev Nanda1 has held that a critical and
1 (2012) 8 SCC 450
microscopic analysis of Section 304 of IPC shows
that once knowledge that it is likely to cause
death is established but without any intention to
cause death, then jail sentence may be for a term
which may extend to 10 years or with fine or with
both. It has further been held that to make out an
offence punishable under Section 304 Part II of
the IPC, the prosecution has to prove the death
of the person in question and such death was
caused by the act of the accused and that he knew
that such act of his is likely to cause death.
15. Reverting to the facts of the present case in
light of the aforesaid legal position, it is
quite vivid that the appellant and his family as
well as the deceased and her family were residing
together in the same compound and on the day of
Holi i.e. on 20/03/2011 at about 7:00 PM, the
appellant came to his house and asked for food
from his wife which was served with a little
delay and on account of that, the appellant
became angry and started abusing his wife and
threatened to kill her. Manmati, being the
sisterinlaw of the appellant, intervened in
between and tried to resolve their dispute but
out of grave anger, the appellant assaulted
Manmati thrice with the help of spade which
caused grievous injuries on her head and were
sufficient to cause her death. As such, it can
safely be inferred that causing injury by spade
particularly three blows on head was sufficient
to cause death, but considering the fact that
there was no previous enmity between them and
they were having cordial relationship between
them as the deceased and the appellant were close
relatives and because of a petty reason, dispute
arose between the appellant and his wife and when
the deceased Manmati came to intervene, the
appellant assaulted her which caused her death,
therefore, we are unable to hold that there was
intention on the part of the appellant to cause
death of deceased Manmati though he knew that it
was likely to cause death, as such, it is a case
where conviction of the appellant herein would
fall within the meaning of Part II of offence
under Section 304 of the IPC.
16. Accordingly, conviction of the appellant under
Section 302 of the IPC is hereby set aside and
instead thereof, he is convicted for offence
under Section 304 Part II of the IPC. Since the
appellant is in jail from 24/03/2011 i.e. for
about eleven years, we award the sentence to the
period already undergone by him. The appellant be
released from jail forthwith, if not required in
any other case.
17. This criminal appeal is allowed to the extent
indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
