Chattisgarh High Court
Ghoghra @ Ghoghro @ Shivprashad vs State Of Chhattisgarh on 31 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1008 of 2016
Ghoghra @ Ghoghro @ Shivprashad, Aged 50 years, S/o
Samalsai, R/o. Village:Purkela, P.S.-Lundra, Dist: (Revenue)
Sarguja & District (Civil)-Ambikapur (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh Through the PS-Lundra, Dist: Sarguja
(CG)
---- Respondent
For Appellant: Mr.Yogesh Chandra Pandey, Advocate
For Respondent/State: Mr.D.C.Verma, Government Advocate
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Smt.Rajani Dubey
Judgment on Board
(31.3.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant/accused herein
under Section 374(2) of the CrPC is directed against the
impugned judgment dated 5.5.2016 passed by the Additional
Sessions Judge (F.T.C.), Surguja (Ambikapur), in Sessions Trial
No. 371/2011, by which the appellant herein has been convicted
for offences under Sections 302, 323 and 324 of the IPC and
sentenced to undergo imprisonment for life and fine of Rs.1000/-,
in default of payment of fine to further undergo simple
imprisonment for one month, rigorous imprisonment for one year
and fine of Rs.1000/-, in default of payment of fine to further
undergo simple imprisonment for one month and and rigorous
imprisonment for one year and fine of Rs.1000/-, in default of
payment of fine to further undergo simple imprisonment for one
month.
2. Case of the prosecution, in brief, is that on 15.5.2011 at 8-9 p.m.
at village Purkela, P.S. Lundra the appellant came under the
influence of liquor and pushed his mother Fuleshwari Bai (since
deceased) and also abused his wife Budhiyaro (PW-3) and
caused simple injuries to her by dangerous weapon and thereby
committed the offence. It is further case of the prosecution that
on 15.5.2011 at 8-9 p.m. when Budhiyaro (PW-3) and her
mother-in-law deceased Fuleshwari Bai were about to sleep after
having their meal, the accused/appellant came under the
influence of liquor and started abusing his wife Budhiyaro (PW-3)
and his mother deceased Fuleshwari Bai on the pretext of not
serving food and he pushed his mother Fuleshwari Bai, by which
she fell down and suffered injuries. Fuleshwari Bai was taken to
Primary Health Centre, Raghunathpur on 17.5.2011 and
thereafter she was shifted to Government Hospital, Ambikapur
where she died on 20.5.2011. The appellant has also assaulted
his wife Budhiyari (PW-3) by stick and knife, by which she
suffered injuries, which was intervened by Sardodin and
Chantidihan (PW-7). FIR (Ex.P-3) was lodged by Nanka (PW-2).
The appellant/accused was arrested on 30.6.2011 vide Ex.P-11.
Fuleshwari Bai was medically examined vide Ex.P-13. Stick and
knife were seized from Budhiyaro vide Ex.P-16. Inquest was
conducted vide Ex.P-4. Dr.Amupam Minz (PW-8) conducted
postmortem of deceased Fuleshwari Bai vide Ex.P-9 and opined
that mode of death was coma due to head injury. During the
course of investigation, merg intimation being Merg No.15/2011
was recorded vide Ex.P-2A. After completion of investigation, the
charge-sheet was filed before the Court of Judicial Magistrate
First Class, Ambikapur, who in turn, committed the case to the
Court of Sessions, Surguja (Ambikapur), from where the
Additional Sessions Judge (F.T.C.), Ambikapur (Surguja)
received the case on transfer for trial. The accused abjured the
guilt and entered into defence.
3. In order to bring home the above-stated offence, the prosecution
examined as many as 14 witnesses and exhibited 20
documents. However, the appellant examined none in his
defence and no document has been produced to support his
case.
4. The trial Court upon appreciation of oral and documentary
evidence available on record, by its judgment dated 5.5.2016,
convicted the appellant herein for offence under Sections 302,
323 and 324 of the IPC and sentenced him as mentioned in
opening paragraph of this judgment.
5. Mr.Santosh Bharat, learned counsel appearing for the appellant,
would submit that the appellant has falsely been implicated in
crime in question. If the prosecution story is accepted as it, then
at the most, the appellant can be convicted under Section 323 of
the IPC and cannot be convicted under Section 302 of the IPC.
He would rely upon the judgment of the Supreme Court in the
matter of Jani Gulab Shaikh v. State of Maharashtra 1.
6. On the other hand, Mr.D.C.Verma, learned Government
Advocate appearing for the respondent/State, would support the
impugned judgment and submit that the prosecution has proved
its case beyond reasonable doubt and the trial Court has rightly
convicted the appellant herein for offence under Sections 302,
323 and 324 of the IPC and as such, the appeal deserves to be
dismissed.
7. We have heard learned appearing for the parties, considered
their rival submissions made hereinabove and also went through
the records with utmost circumspection.
8. The first question would be, whether death of deceased
Fuleshewari Bai was homicidal in nature. The trial Court after
appreciating medical evidence particularly statement of
Dr.Anupam Minz (PW-8), who has conducted postmortem of
deceased Fuleshwari Bai and statement of Dr.Y.K.Kindo (PW-10)
who has medically examined Fuleshwari Bai, came to the
conclusion that death of deceased Fuleshwari Bai was homicidal
in nature. The aforesaid finding has not been seriously disputed
by the learned counsel for the appellant. Taking into
1 1970 SCC (Cri) 532
consideration the medical evidence available on record and
finding recorded by the trial Court, we are of the opinion that the
trial Court is absolutely justified in holding that death of deceased
Fuleshwari Bai was homicidal in nature. We affirm the said
finding.
9. Now, the question is whether, death was caused by the appellant
herein and the trial Court is justified in convicting the appellant
under Section 302 of the IPC.
10. Admittedly, on the fateful day of 15.5.2011 the appellant
came to the house under the influence of liquor, he started
abusing his wife Budhiyaro (PW-3) on the pretext of not serving
food, at that time, deceased Fuleshwari Bai (mother of the
appellant) also came there and when she tried to intervene not to
abuse her daughter-in-law Budhiyaro (PW-3), then the appellant
pushed his mother Fuleshwari Bai by which she suffered injuries.
Injured witness Budhiyaro (PW-3), who is also eyewitness, has
been declared hostile, but in para-3, she has partly supported
the case of the prosecution. Dr.Anupam Minz who has
conducted postmortem has been examined as PW-8. In internal
examination, he has noticed seven injuries in the body of
Fuleshwari Bai and also noticed fracture in right temporal bone
and also stated that it could be caused by hard and blunt object.
Dr.Y.K.Kondo (PW-10), who has examined deceased Fuleshwari
Bai immediately after the incident on 17.5.2011, has also noticed
four injuries on her body, which could be caused by hard and
blunt object. As such, it has been established that injuries were
caused by the appellant by which Fuleshwari Bai fell down and
suffered injuries as noticed by Dr.Anupam Minz (PW-8).
11. Now, the question is, whether the conviction of the
appellant under Section 302 of the IPC is justified.
12. It is quite apparent from evidence available on record
particularly injured eyewitness Budhiyaro (PW-3) that the
accused/appellant on the fateful day came to the house and
started abusing his wife Budhiyaro (PW-3) for not serving food
and when his mother Fuleshwari Bai intervened, then he pushed
her. It is also established that he caused some injuries by stick
(hard and blunt object). Nothing has been brought on record to
show that the appellant intended to cause death of Fuleshwari
Bai. In fact, the appellant was angry that his wife Budhiyaro, who
was not serving food to him and on that pretext, he abused and
assaulted his wife and when deceased Fuleshwari Bai came to
intervene, then he also pushed/assaulted Fuleshwari Bai by
stick. As such, there was no intention at all alleged and proved
by the prosecution for causing death of Fuleshwari Bai. Even
otherwise, there is no evidence on record that the appellant had
intention to cause such bodily injury as is likely to cause death or
with the knowledge that he is likely by such an act to cause
death as fracture was found in right temporal bone.
13. Considering the fact that injuries were inflicted on
15.5.2011 and FIR was lodged on 17.5.2011 and she was
medically examined on that day and thereafter she died on
20.5.2011, we are of the considered opinion that the prosecution
has failed to prove that the accused had intention to cause death
or the accused had knowledge that death was likely to result in
the circumstances in which the injuries were caused by him to
the deceased.
14. In that view of the matter, conviction of the appellant under
Section 302 of the IPC is set-aside and he is convicted under
Section 326 of the IPC. Considering the grievous hurt caused by
the appellant herein to the deceased by hands, fists and also by
stick, we sentence to the period already undergone by him i.e.
30.6.2011 till today i.e. more than 10 years and 9 months. The
trial Court has also convicted the appellant both under Sections
323 and 324 of the IPC. Considering the aforesaid fact, we set-
aside his conviction under Section 323 of the IPC. However, his
conviction under Section 324 of the IPC is maintained. He be
released forthwith, if not required in any other case.
15. The criminal appeal is partly allowed to the extent indicated
herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
B/-
