Chattisgarh High Court
Gendee @ Guruwaru vs State Of Chhattisgarh on 22 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 746 of 2014
Gendee @ Guruwaru S/o Bodhram Uraon, Aged 50
years, Profession Labourer, R/o Uraonpara
Gharghoda, Thana Gharghoda, Distt. Raigarh,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Gharghoda, Distt. Raigarh, Chhattisgarh.
Respondent
For Appellant : Mr. Alok Kumar Dewangan, Advocate
For State : Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
22/03/2022
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 13/06/2014
passed by learned Sessions Judge, Raigarh in
Sessions Trial No. 16/2012 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.
5,000/ in default of payment of fine amount,
additional R.I. for one year.
2. The case of the prosecution, in brief, is that on
09/08/2011 at 9:00 PM at Village Uraon para
Gharghoda, Distt. Raigarh, the appellant herein
assaulted Shankar Uraon with an axe and caused
grievous injuries in his neck on account of which
he succumbed to death and the appellant/accused,
thereby, committed the offence under Section 302
of IPC.
3. Further case of the prosecution is that, on
09/08/2011 at about 8:30 PM, Shankar Uraon was
sitting with the appellant herein when Heerabai,
appellant's wife, came and started abusing
Shankar Uraon pursuant to which he chased to kill
her with a wooden pole and at the same time, the
appellant ran behind Shankar Uraon with an axe
and after pushing him to the ground hit his neck
with the axe 56 times on account of which
Shankar Uraon suffered grievous injuries and
succumbed to death. The said incident was
reported by the son of Shankar Uraon namely
Jyotish Uraon (P.W.2) to Police Station
Gharghoda and First Information Report (Ex. P/4)
was lodged against the appellant/accused for
offence punishable under Section 302 of IPC on
the basis of which merg intimation (Ex. P/5) was
registered and spot map (Ex. P/6) was prepared.
Thereafter, summons were issued to the witnesses
under Section 175 of CrPC (Ex. P/8) and after
preparing inquest report (Ex. P/9), the dead body
of deceased Shankar Uraon was sent for postmortem
(Ex. P/15A) to Community Health Centre, Gharghoda
wherein the postmortem was conducted by Dr. S.R.
Painkra (P.W.6) and the report has been
submitted vide Ex. P/15. Blood stained soil as
well as wooden pole were seized from the spot
(Ex. P/10) and thereafter, statements of the
witnesses were recorded. Pursuant thereof, the
appellant/accused was taken into custody and on
the basis of his memorandum statement (Ex. P/11),
axe was seized (Ex. P/12) and the clothes worn by
the appellant/accused at the time of the incident
as well as by the deceased were also collected
(Ex. P/13) and thereafter, all the seized
articles were sent for chemical analysis and the
F.S.L. report has been filed as Ex. P/24. After
due investigation, the appellant/accused was
chargesheeted for offence under Section 302 of
IPC which was committed to the Court of Session
Judge, Raigarh for hearing and disposal in
accordance with law. The appellant/accused
abjured his guilt and entered into defence.
4. In order to bring home the offence, prosecution
examined 9 witnesses and brought into record 24
documents. Statements of the appellant/accused
was recorded under Section 313 of CrPC wherein he
denied guilt, however, he examined none in his
defence.
5. Learned trial Court, after appreciating the oral
and documentary evidence on record, convicted the
appellant/accused and awarded sentence as
mentioned hereinabove against which this appeal
has been preferred by him questioning the
impugned judgment of conviction and order of
sentence.
6. Mr. Alok Kumar Dewangan, learned counsel for the
appellant/accused, would submit that prosecution
has failed to prove the offence against the
appellant beyond reasonable doubt as Bholu Uraon
(P.W.5), who is said to be eyewitness, has not
really witnessed the incident and so far as
circumstantial evidence is concerned, chain of
circumstances are not established to point out
that the aforesaid offence has been committed by
the appellant/accused. He would alternatively
submit that at the most, appellant's case would
fall under Section 304 Part I or Part II of IPC
as appellant did not have any intention to kill
deceased Shankar Uraon and the assault came to be
made because of a pity issue and the appellant is
in jail since 11/08/2011, as such, his sentence
reduced to the period already undergone.
7. Mr. Sudeep Verma, learned State counsel, would
support the impugned judgment of conviction and
submit that the manner in which the
appellant/accused has caused three injuries on
the neck of deceased Shankar Uraon with an axe
which has also been recovered on the basis of
memorandum statement of appellant and further
taking consideration of the fact that as per the
FSL report (Ex. P/24), blood has been found on
the axe as well as on the clothes of the
appellant/accused, it cannot be held that he is
not guilty for offence under Section 302 of IPC,
as such, 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 death of deceased Shankar Uraon was
homicidal in nature ?
10. The trial Court has recorded an affirmative
finding with regard to this question on the basis
of postmortem report (Ex. P/15) wherein Dr. S.R.
Painkra (P.W.6), who has conducted the
postmortem of deceased Shankar Uraon, has opined
that three grievous injuries were found on the
neck of the deceased which were incised wounds
and blood vessels of his neck were severed on
account of which deceased Shankar Uraon died due
to hypovolemic shock as a result of excessive
bleeding. It has further been stated that his
death is homicidal in nature. Moreover, the fact
that the death of deceased Shankar Uraon was
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 death of Shankar Uraon is homicidal in
nature is hereby affirmed.
11. This finding brings us to the next question which
is, whether the death of deceased Shankar Uraon
was caused by the appellant herein ?
12. Prosecution has cited Bholu Uraon (P.W.5) as
eyewitness. He has stated in paragraph 1 of his
statement that when he was returning from the
shop, he found deceased Shankar Uraon lying on
the ground. Thereafter, he went and informed
about the same to Jyotish Uraon, son of Shankar
Uraon, and when both of them returned to the
place where Shankar Uraon was lying, the
appellant/accused was standing there holding an
axe. At this stage, Bholu Ram (P.W.5) was
declared hostile and he was asked leading
questions by the Additional Public Prosecutor
wherein he has stated that he has not witnessed
the incident but in his crossexamination, in
paragraph 9, he has admitted to the extent that
though he has not witnessed the incident but he
has seen the appellant standing in the spot of
the incident holding an axe but in paragraph 10
he has refuted the fact that he has not seen the
incident.
13. Pursuant to the memorandum statement (Ex. P/11)
of the appellant herein, axe was recovered and it
was sent for chemical analysis. Similarly, the
clothes worn by the deceased as well as the by
the appellant/accused were also sent for chemical
analysis and according to the FSL Report (Ex.
P/24), blood has been found on the axe as well as
on the clothes of the appellant/accused.
14. Learned counsel for the appellant/accused has
submitted that since the FSL report does not
disclose that human blood was found in the said
articles, therefore, it cannot be held on the
basis of the FSL report that appellant/accused
has committed the murder of deceased Shankar
Uraon. However, in the matter of Balwan Singh v.
State of Chhattisgarh and Another 1, their
Lordships of the Supreme Court have summarized
the law in this regard particularly failure to
establish origin of blood as being of human
origin and/or its blood group and have held in
paragraphs 22 and 23 as under :
"22. The cases discussed above highlight
the burden that the prosecution would
ordinarily have to discharge, depending on
the other facts and circumstances of the
case, for the evidence relating to
recovery to be considered agains the
accused At the same time, as mentioned
above, we are conscious of the fact that
it may not always be possible to
inextricably link the bloodstains on the
items of recovery to the blood of the
deceased, due to the possibility of
disintegration of bloodstains on account
1 (2019) 7 SCC 781
of the time lapse in carrying out the
recovery. For this reason, in Prabhu Dayal
v. State of Rajasthan2, where one of us
(Mohan M. Shantanagoudar, J.) had the
occasion to author the judgment, this
Court, relying on State of Rajasthan v.
Teja Ram3, had held that the failure to
determine the blood group of the
bloodstains collected from the scene of
offence would not prove fatal to the case
of the prosecution. In Prabhu Dayal case,
although the FSL report could not
determine the blood group of the
bloodstains on account of disintegration,
the report clearly disclosed that the
bloodstains were of human origin, and the
chain of circumstantial evidence was
completed by the testimonies of the other
witnesses as well as the reports submitted
by the ballistic experts and the forensic
science laboratory regarding the weapon
used to commit murder.
23. From the aforementioned discussion, we
can summarise that if the recovery of
bloodstained articles is proved beyond
reasonable doubt by the prosecution, and
if the investigation was not found to be
tainted, then it may be sufficient if the
prosecution shows that the blood found on
the articles is of human origin though,
even though the blood group is not proved
because of disintegration of blood. The
court will have to come to the conclusion
based on the facts and circumstances of
each case, and there cannot be any fixed
formula that the prosecution has to prove,
or need not prove, that the blood groups
match."
15. Reverting to the facts of the case in light of
the principle of law laid down by their Lordships
of Supreme Court in Balwan Singh (supra), it is
quite vivid that in the instant case, blood
stained axe as well as clothes of the
2 (2018) 2 SCC 127
3 (1999) 3 SCC 507
appellant/accused were recovered and they were
sent for chemical analysis. The FSL report (Ex.
P/24) shows that blood was found on the said
articles and though it has not been established
that the said blood is of human origin but the
benefit of doubt cannot be given to the
appellant/accused herein. Moreover, it is not a
case where the appellant/accused has pleaded a
defence or has alleged mala fides on the part of
the prosecution, or accused the prosecution of
fabricating the evidence to wrongly implicate him
in the crime in question. It has neither been
questioned by the appellant/accused that the
investigation carried out by the Police is
tainted, therefore, though the blood found on the
seized articles (axe and appellant's clothes) has
not been proved to be of human origin but that is
not fatal to the prosecution. Even otherwise, the
presence of the appellant/accused in the place of
incident holding an axe has been established by
the testimonies of Jyotish Uraon (P.W.2), Bholu
Ram (P.W.5) and Karmela (P.W.7).
16. At this stage, the argument of learned
counsel for the appellant/accused that the
present case would fall within Exception 4 of
Section 300 of IPC has to be noticed. It is the
case of the prosecution that appellant was
sitting with deceased Shankar Uraon when suddenly
appellant's wife Heerabai came and started
abusing Shankar Uraon on account of which he
chased her to kill with a wooden pole, but the
appellant came behind him with an axe and caused
injuries to Shankar Uraon on account of which he
succumbed to death. The entire incident happened
without premeditation as the appellant/accused
and deceased Shankar Uraon, both were having good
relations, and they were sitting together at the
time of the incident and only when appellant's
wife Heerabai came and started abusing Shankar
Uraon, in the heat of the moment, deceased
Shankar Uraon chased appellant's wife with a
wooden pole and in turn appellant/accused hit
Shankar Uraon with an axe and caused his death.
The said incident happened in a sudden fight
erupted between the appellant and deceased
Shankar Uraon when appellant's wife came and
started abusing Shankar Uraon. The
appellant/accused caused fatal injuries to
Shankar Uraon in the heat of passion upon a
sudden quarrel which arose between them and the
appellant/accused did not take any undue
advantage and did not act in a cruel or unusual
manner. As such, we are of the considered opinion
that the present case would fall within Exception
4 of Section 300 of IPC.
17. Now, the only question that is left for
consideration is, whether the case of the
appellant/accused would fall under Section 304
Part I or Part II of IPC ?
18. As per the memorandum statement (Ex. P/11) of the
appellant/accused and as noticed hereinabove, at
the time of the incident, appellant was sitting
with deceased Shankar Uraon when suddenly
appellant's wife Heerabai came and started
abusing Shankar Uraon on account of which he
chased her to kill with a wooden pole, but the
appellant came behind him with an axe and hit him
in his neck due to which deceased Shankar Uraon
suffered three major injuries in his neck and
died due to excessive bleeding and hypovolemic
shock. The incident was reported to the Police by
Jyotish Uraon (P.W. 2) and thereafter, First
Information Report (Ex. P/4) has been lodged
against the appellant/accused which clearly
states that when the deceased Shankar Uraon
chased appellant's wife with a wooden pole to
kill her, then only the appellant/accused came
and assaulted Shankar Uraon with an axe. The
wooden pole along with blood stained soil has
also been seized from the place of incident vide
Ex. P/10. Similarly, in the merg intimation
registered by Jyotish Uraon (P.W.2), the
incident has been reported in a light manner. It
is reported in the First Information Report that
appellant/accused as well as deceased Shankar
Uraon, both had very cordial relations and on the
date of the incident, they were sitting together
at Shankar Uraon's house but since appellant's
wife Heerabai came on the spot and started
abusing Shankar Uraon, he chased her with a
wooden pole and in turn, the appellant hit the
deceased in his neck with an axe and caused him
three grievous injuries and he succumbed to
death.
19. A careful perusal of the statement of Dr. S.R.
Painkra (P.W.6) who examined the deceased
Shankar Uraon would show that there were three
major injuries on his neck of about 4.5x0.5x0.5
inches, 4x0.5x1.5 inches and 3.5x0.5x0.5 inches,
however, there were no injuries in the other
parts of his body including his brain. The cause
of death is hypovolemic shock as a result of
excessive bleeding and the nature of death is
homicidal.
20. The aforesaid evidence would show that there was
no enmity between the appellant and the deceased
and both had very cordial relations. There was no
dispute of any kind between them and the
appellant did not come with premeditated mind to
kill the deceased Shankar Uraon, but the manner
in which three fatal neck injuries have been
caused on account of which blood vessels of the
neck i.e. vital part of the body, were ruptured
and deceased Shankar Uraon died due to excessive
bleeding, we are of the opinion that though the
appellant's act would come within 'culpable
homicide not amounting to murder' but the way in
which death is caused, it is done with the
intention which is likely to cause death.
Therefore, the conviction of the appellant under
Section 302 of IPC is converted into Section 304
Part I of IPC and since the appellant is in jail
since 11/08/2011 i.e. for more than 10 years, we
hereby award the sentence as the period already
undergone. The appellant be released from jail
forthwith, if not required for any other case.
21. Accordingly, the instant criminal appeal is
allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
