Chattisgarh High Court
Mohd. Shafique vs State Of Chhattisgarh on 11 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.278 of 2011
Judgment reserved on:13.9.2022
Judgment delivered on: 11.10.2022
Mohd. Shafique, S/o Mohd. Ishaque, Aged about 35 years, R/o
Gram Pandra Pathra, Police Chowki Belgahan, P.S. Kota, District
Bilaspur (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through District Magistrate, District Bilaspur
(CG)
Respondent
For Appellant: Mr.Maneesh Sharma, Advocate
For Respondent/State: Mr.Ashish Tiwari, Govt.Advocate,
Mr.Sudeep Verma, Dy.Govt.Advocate and
Mr.Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. The appellant herein questions the legality, validity and correctness
of the impugned judgment dated 26.2.2011 passed by the Fifth
Additional Sessions Judge, Bilaspur in Sessions Trial No.102/2010,
by which he has been convicted for offence under Sections 302 and
294 of the IPC and sentenced to undergo imprisonment for life and
further sentenced to pay fine of Rs.200/ under Section 302 of the
IPC and SI for three months and further sentenced to pay fine of
Rs.100/.
2. The case of the prosecution, in brief, is that on 16.4.2010 at about 8
a.m. at village Pandra Pathra, Police Station Kota, District Bilaspur
the appellant herein abused filthy to Sheru @ Sher Mohd., his wife
and children and also threatened to kill them and thereafter
assaulted Sheru Mohd. by axe in his head and back by which he
succumbed to death, of which the deceased himself lodged a report
before his death to the Police Station Kota vide Ex.P10 that on
15.4.2010 the appellant has abused him filthy and also threatened
him to administer poison to his son and on 16.4.2010 alleging that
by the act of Sheru Mohd., the appellant's wife has left him and
also abused and assaulted him by axe. Pursuant to that report, FIR
was registered against the appellant vide Ex.P6. Complainant
Sheru Mohd. was sent for medical examination to Community
Health Center, Kota, where Dr.Sandeep Dwivedi (PW2) declared
him dead. Thereafter merg intimation was registered under Section
302 of the IPC vide Ex.P8. Inquest was conducted over dead body
of deceased Sheru Mohd. vide Ex.P2. Postmortem was conducted
by Dr.Sandeep Dwivedi (PW2) vide Ex.P3 and opined that cause of
death was due to injury on the vital organ of brain tissue subdural
and subarachnoid hemorrhage and shock due to internal bleeding
and death was homicidal in nature. Clothes of the deceased was
seized vide Ex.P9. Axe was seized vide Ex.P12. The appellant was
chargesheeted in the Court of Judicial Magistrate First Class, Kota
for offence under Sections 294, 323, 506 and 302 of the IPC, who in
turn, committed the case to the Court of Sessions, Bilaspur, from
where the Fifth Additional Sessions Judge, Bilaspur received the
case on transfer for trial in accordance with law. The appellant /
accused abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as
many as 10 witnesses and exhibited 17 documents Exs.P1 to P17.
Statement of the accused/appellant was recorded under Section
313 of the CrPC, in which he denied guilt. However, the accused has
examined none in his defence, but exhibited one document i.e.
statement of Mohd.Anwar as Ex.D1.
4. The trial Court upon appreciation of oral and documentary evidence
available on record, by its judgment dated 26.2.2011, acquitted the
appellant from the charges under Sections 323 and 506 of the IPC
and convicted him under Sections 302 and 294 of the IPC and
sentenced him as aforementioned, against which, this criminal
appeal has been preferred.
5. Mr.Maneesh Sharma, learned counsel for the appellant, would
submit that the prosecution has failed to bring home the evidence of
clinching nature and the trial Court has convicted him by recording
a finding which is perverse to the record. He would further submit
that statements of Mohd.Aarif (PW6) and Mohd.Anwar (PW7) are
not reliable and their conduct could create grave suspicion
regarding their presence at the place of incident and make their
evidence unreliable. He would also submit that nonmentioning
about the head injuries on the body of the deceased by Mohd.Aarif
(PW6) and Mohd.Anwar (PW7) at the time of inquest would clearly
establish that they had not seen the incident and the deceased
himself has lodged the FIR, but has not complained about any
injury sustained by him on head nor he has made any mention
about head injury at the time of filing MLC requisition Form and
said fact has been admitted by the investigating officer Rajkumar
Sori (PW10) and medical evidence is not conclusive as Dr.Sandeep
Dwivedi (PW2) has not given any definite opinion regarding
connection of bruise with internal bleeding/hemorrhage. He would
alternatively submit that even if it is presumed that the injuries
sustained by the deceased has been caused by the appellant, then
also the same has been caused while exercising the right of private
defence and even if it is not accepted, the injuries sustained by the
deceased were simple in nature which cannot be termed as hurt
which endangers life and hence it would fall within the ambit of
Section 323 or 324 of the IPC. He would rely upon the decision of
the Bombay High Court in the matter of Bai Jiba v. Emperor1 and
would also rely upon the judgment of the Supreme Court in the
matter of Babu Ram and others v. State of Punjab2.
6. On the other hand, Mr.Ashish Tiwari, learned Government
Advocate, Mr.Sudeep Verma, learned Deputy Government Advocate
and Mr.Soumya Rai, learned Panel Lawyer for the respondent/State,
would submit that postmortem of the deceased was conducted by
Dr.Sandeep Dwivedi (PW2) vide Ex.P3 in which he has clearly
opined that death of the deceased was on account of injury on vital
organ of brain tissue subdural and subarachnoid hemorrhage and
shock due to internal bleeding. They would further submit that
Dr.Sandeep Dwivedi (PW2) in his query report (Ex.P5) has also
acknowledged and corelated the injury on the deceased with the
weapon used by the appellant herein. As such, death of the
deceased was homicidal in nature which the trial Court has rightly
held. They would also submit that in the instant case, nature of
evidence is direct evidence of Mohd.Aarif (PW6), Mohd.Anwar
(PW7), Tahira Begum (PW8) and Sakila Begum (PW9) and all they
1 AIR 1917 Bombay 259
2 (2008) 3 SCC 709
have witnessed the incident and have rightly been found reliable by
the trial Court and even motive of the crime is previous enmity
between the deceased and the appellant herein, particularly in view
of the fact that on previous day to the date of incident i.e. 15.4.2010
there was a fight / altercation between the accused and the
deceased and in view of statements of four witnesses Mohd.Aarif
(PW6), Mohd.Anwar (PW7), Tahira Begum (PW8) and Sakila
Begum (PW9), the trial Court has rightly convicted the appellant
herein for offence under Sections 302 and 294 of the IPC, which
calls no interference.
7. We have heard learned counsel appearing for the parties and
considered their rival submissions made hereinabove and also went
through the records with utmost circumspection.
8. The first question for consideration would be, whether death of
deceased Sheru @ Sher Mohd. was homicidal in nature ?
9. On behalf of the prosecution, Dr.Sandeep Dwivedi who has
conducted postmortem on the body of the deceased vide Ex.P3 has
been examined as PW2. In his statement before the Court,
Dr.Sandeep Dwivedi has clearly stated that the injury was on lower
portion of the body. He has further stated that upon internal
examination, it was found that there was swelling inside the brain
and death was due to shock because of internal injury on vital
organ of brain tissue subdural and subarachnoid hemorrhage and
shock due to internal bleeding. Dr.Sandeep Dwivedi (PW2) in his
query report (Ex.P5) has also acknowledged and corelated the
injury upon the deceased with the weapon used by the appellant
herein. As such, a finding recorded by the trial Court that death of
the deceased was homicidal in nature is a finding of fact based on
evidence available on record, which is neither perverse nor contrary
to record. We hereby affirm the said finding recorded by the trial
Court.
10. The next question for consideration would be, whether the appellant
is author of the crime ?
11. The prosecution has alleged that motive of the crime was previous
enmity between the deceased and the appellant herein. Moreover, it
has been established on record that on previous day to the date of
incident i.e. 15.4.2010, some altercation took place between the
deceased and the appellant herein, to which the appellant has
abused filthy and threatened to kill him with family and on the next
day i.e. 16.4.2010 the offence is said to have been committed. As
such, motive of the offence on the part of the appellant is clearly
established in the facts and circumstances of the case as previous
enmity is double edged sword, which can be used as motive of the
offence and also to implicate falsely. Looking to the facts and
circumstances of the case, it is held that motive of the offence is
established.
12. In the instant case, there are four eyewitnesses. First one is Mohd.
Aarif (PW6). In his statement before the Court, he has stated that
he was present at the time of incident and the accused assaulted
the deceased thrice, firstly at rib portion, then over the head portion
and thereafter on back portion with blunt part of axe. He has
further stated that the accused was abusing the deceased by using
foul words and he has also confirmed the presence of Tahira Begum
(PW8) and further stated that he and Tahira Begum took away axe
from the accused/appellant herein. Tahira Begum (PW8) in her
statement before the Court has stated that the accused was abusing
deceased Sher Mohd, and he was holding axe and was threatening
the deceased with life and thereafter hit the deceased on back of
head, back portion of the body and ribs. Thereafter deceased Sher
Mohd. had held the axe, which was in hands of the accused /
appellant and thereafter she & Mohd. Aarif (PW6) also held the axe
and snatched it from the accused. Similarly, Mohd.Anwar (PW7) in
his statement before the Court has clearly stated that the accused
hit the deceased on rib portion, back portion and head portion. He
has also stated that the appellant was abusing deceased Sher Mohd.
and threatening to kill him and in that course of action, the
appellant hit the deceased with axe and also stated that Mohd.Aarif
(PW6), Tahira Begum (PW8) and Sakila Begum (PW9) snatched
the axe from the accused. However, Mohd.Anwar (PW7) has
supported the seizure of axe from Tahira Begum (PW8) and Tahira
Begum (PW8) has proved the seizure of axe which was snatched
from the accused. Sakila Begum (PW9) in her statement before the
Court has clearly stated that the accused was abusing her husband
deceased Sher Mohd. and he was holding axe and hit the deceased
on back portion of the body, thereafter on back side of head and
then on ribs of the deceased. She has also corroborated the fact that
Tahira Begum (PW8), Mohd. Aarif (PW6) and Mohd. Anwar (PW7)
took away the axe from the hands of the accused / appellant herein.
As such, all four eyewitnesses have consistent in their statements
and despite crossexamination at length, their testimonies could not
be discredited the version given by those eyewitnesses and all four
eyewitnesses have consistently maintained that the accused/
appellant was abusing the deceased by using foul words and they
have clearly stated that the appellant was holding axe in his hands
and hit the deceased with said axe on three parts of the body i.e. on
head, on rib and on back portion and Mohd. Aarif (PW6) and Tahira
Begum (PW8) were present on the spot and they took away the axe
from the hands of the deceased, which was produced before the
investigating officer Rajkumar Sori (PW10) who seized the axe vide
seizure memo Ex.P12.
13. Injuries on the body of the deceased were proved by Dr.Sandeep
Dwivedi (PW2) corroborating the statements of eyewitnesses who
have clearly stated that the deceased has received injuries on head
portion, ribs portion and back portion of the body. In medical
opinion (Ex.P5), Dr.Sandeep Dwivedi (PW2) has proved that nature
of injury was fatal as the assault by accused had caused internal
brain swelling and reason of death was due to shock because of
internal injury on vital portion of head/brain leading to internal
bleeding causing hemorrhage. As such, on the testimonies of four
eyewitnesses Mohd.Aarif (PW6), Mohd.Anwar (PW7), Tahira Begum
(PW8) and Sakila Begum (PW9), the prosecution has able to prove
that it is the appellant who has caused injuries to the deceased by
axe on his rib portion, head portion and back portion and injuries
on these parts have duly been proved by Dr.Sandeep Dwivedi
(PW2). As such, the prosecution has clearly proved that it is the
appellant who has caused injuries on lower rib, head portion and
back portion of the deceased and reason of death was due to shock
because of internal injury on vital portion of head/brain leading to
internal bleeding causing hemorrhage.
14. It is the submission of learned counsel for the appellant that the
injuries sustained by the deceased were simple in nature which
cannot be termed as hurt which endangers life and therefore, it
would fall within the ambit of Section 323 or 324 of the IPC and has
relied upon the decision of the Bombay High Court in the matter of
Bai Jiba (supra).
15. In order to consider the plea raised on behalf of the appellant, it
would be appropriate to notice the nature of injuries which have
been suffered by the deceased and explained by Dr.Sandeep Dwivedi
(PW2) in his statement before the Court in paras1 and 2 which
states as under:
"1- eS vizSy 2005 ls lkeqnkf;d LokLF; dsUnz dksVk esa fpfdRlk
vf/kdkjh ds in ij dk;Zjr gwA
fnukad 16&04&2010 dks nksigj 1-30 ctjs vkj{kd 549 fd'kksj
dqekj pkSdh csyxguk }kjk 'ksj eksgEen mQZ 'ks: iq= LoxZoklh 'ks[k
eksgEen mez 50 o"kZ fuoklh iaMjkiFkjk pkSdh csyxguk ,oa Fkkuk
dksVk dk 'ko ijh{k.k gsrq 'ko x`g yk;k x;k ftlds igpkuus okyksa
ds uke eksgEen by;kl] eksgEen [kyhy vksj eksgEen tQj FksA
'ko ijh{k.k fnukad 16&04&2010 dks nksigj 1-40 ij izkjaHk
fd;k ,oa fuEukuqlkj ik;k x;kA e`rd dk 'ko fpr voLFkk esa
Fkk ,oa vdM+u dh voLFkk esa FkkA mlds lQsn cfu;ku vk/ks cktw
ds ,oa gYds jax dh pM~Mh iguk gqvk Fkk mlds nksuksa gkFk ,o iSj
Qsys gq, o ,d nqljs ds lkekarj Fks mHkjh gqbZ PkksV lhus ds ck;h
rjQ uhps dh vksj Fkh ftldk ifjeki 5 xq.kk 3 lsaVhehVj Fkk ,oa
efLr"d ds ihNs esa VsEiksjsy ds mij mHkjh gqbZ pksV FkhA ftldk
ifjeki 5 xq.kk 4 lasVhehVj nksuksa gkFk ,oa eqg can FkkA f'k"u ls oh;Z
fudyk gqvk Fkk ,oa van:uh oL=ksa esa ey vuqifLFkr Fkk mijksDr
pksVsa e`r ls iwoZ dkfjr izrhr gks jgh FkhA
2- vkrafjd ijh{k.k&diky ,oa es:naM efLr"d dh f>fYy;ka
ladqfpr ,oa lwth Fkh o efLr"d ls lcM~;wjy ,oa lcvdZukbZM
gsejst FkhA o{k g~n; ds ck; Hkkx esa tek gqvk jDr ,oa nk;k Hkkx
[kkyh FkkA mnj vek'k; esa vip Hkkstu ,oa ikuh dk cM+h vkar esa
ipk gqvk HkksT; inkFkz ;k ew=k'k; esa 8 ls 10 ,e-,y- ew= mifLFkr
FkkA esjs erkuqlkj e`R;q dk laHkkfor dkj.k vk?kkr FkkA tks fd
efLr"d ds tSfod vaxks ij vkbZ pksVksa ls lcM~;wjy ,oa lcvdZukbZM
vkarfjd jDr L=ko ds dkj.k mRiUu gksus okys vk?kkr ls e`R;q izrhr
gks jgh gSA e`R;q iwoZ dk le; 6 ls 8 ?kaVs iwoZ izrhr gks jgk FkkA esjs
fjiksVZ izn'kZ ih0 3 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA "
In crossexamination, the following explanation has been given by
Dr.Sandeep Dwivedi (PW2):
"5- ;g lgh gS fd e`rd ds 'kjhj ij pksV dzekad 1 lk/kkj.k {kfr
Fkh mlls e`R;q laHkkfor ugh FkhA pksV dzekad 1 dh otg ls dksbZ
van:uh vax {kfrxzLr ugha gq, FksA ;g lgh gS fd pksV dzekad 2 dh
otg ls u rks diky dVk&QVk Fkk vkSj u gh vfLFk Hkax FkhA ;g
ckr lgh gS fd efLr"d vkoj.k ds vanj gq, jDr L=ko dh otg ls
e`rd dh e`R;q gqbZ FkhA ;g lgh gS fd e`rd ds efLr"d esa tks jDr
L=ko Fkk og efLr"d dh f>Yyh esa mifLFkr jDr okfgdkvksa ls jDr
L=ko gksus ij ;k lsfjczy ,U;qfjTe ftlesa dh jDr okfgdk,a vkil
es tky cuk ysrh gS fd otg ls Hkh gks ldrh gS Lor% dgk fd
f>fYy;ka ladqfpr ,oa lwth gqbZ FkhA ;g ckr lgh gS fd efLr"d dh
f>Yyh dh fjDr okfgdk,a vR;ar lw{e gksrh gSA"
16. Dr.Sandeep Dwivedi (PW2) has stated that cause of death was due
to shock because of injury on vital part of brain / head i.e. subdural
and subarachnoid leading to internal bleeding. Subdural
Haemorrhage and Subarachnoid Haemorrhage have been defined in
Medical Jurisprudence & Toxicology by Jaising P. Modi (24 th
Edition) at page 590 as under:
"Subdural Haemorrhage.This occurs into the subdural
space between the dura mater and the arachnoid as a
result of rupture of the ducal venous sinus, or a cortical
vein if the arachnoid has been torn or laceration of the
brain, often seen in contrecoup lesions. It sometimes occurs
without a fracture of the skull from a slight blow on the
head or from a fall. The haemorrhage occurs slowly and is
localised in a small area, but it is usually diffused over both
the cerebral hemispheres, and tends to gravitate to the base
of the brain. Most common sites are the upper and
posterior aspects of the cerebral hemispheres and may
result in acute or chronic subdural hematoma. There is no
lucid interval in unassociated subdural haemorrhage.
Subarachnoid Haemorrhage.This occurs between the
arachnoid and the pia mater, and is usually found at the
base of the brain. It is not localised, but it is diffused, mixes
with the cerebrospinal fluid in the subarachnoid space and
spreads upwards of the surface of the brain. The
hemorrhage is caused by injury to the arterial vessels
crossing the subarachnoid space, and is usually associated
with a traumatic fracture of the Skull bones and with
contusion or laceration of cortex of the brain. A massive
rapidly fatal traumatic basal subarachnoid hemorrhage
may occur from a blow to the side of the upper neck due to
the rupture of the vertebral artery at the base of the skull or
its passage through the first cervical vertebra.
Subarachnoid hemorrhage is aggravated by alcoholic
intoxication. Asphyxia can also cause it."
17. It has also been contended by the learned counsel for the appellant
that as per injury No.1, internal organs were not damaged and
pursuant to injury No.2, there was no fracture and skull was also
not damaged. On the other hand, learned counsel for the State
would submit that cause of death was head injury/internal injuries
and absence of fracture not noticed on external surface of head, the
offence cannot be converted into offence under Section 323 or 324
of the IPC and it would remain under Section 302 of the IPC.
18. In order to consider the plea raised at the Bar qua the nature of
injury, it would be appropriate to notice definition of "grievous hurt"
as defined in Section 320 of the IPC.
"320. Grievous hurt.The following kinds of hurt only are
designated as grievous".
first to seventhly xxx xxx xxx
Eighthly.Any hurt which endangers life or which causes
the sufferer to be during the space of twenty days in
severe bodily pain, or unable to follow his ordinary
pursuits."
19. Grievous hurt is hurt of more serious kind. This section merely
gives the description of grievous hurt. A person cannot be said to
have caused grievous hurt unless the hurt caused is one of hurts
specified under Section 320 IPC. Therefore, it is duty of the Court to
give a finding on its own whether the hurt was simple or grievous.
20. The expression "dangerous" is an adjective and the expression
"endanger" is a verb. An injury which can put life to an immediate
danger of death would be an injury which can be termed as
"dangerous to life" and, therefore, when a doctor describes an injury
as "dangerous to life" he means an injury which endangers life in
terms of clause (8) of Section 320 of the IPC, for it describes the
injury "dangerous to life" only for the purpose of the said clause. He
instead of using the expression that this was an injury which
"endangered life" described it that the injury was "dangerous to life",
meaning both the times the same thing. (See Atma Singh v. State
of Punjab3).
21. In the instant case, Dr.Sandeep Dwivedi (PW2) who has conducted
postmortem over the body of the deceased has clearly held that
injury No.1 was simple injury, whereas injury No.2 though there
was no fracture, but it was in temporal region of the head (in brain)
admeasuring 5 cm. X 4 cm. i.e. 20.59 cm, which comes into 3.08 sq.
inch and cause of death according to Dr.Sandeep Dwivedi (PW2)
was on account of injury in brain and subdural subarachnoid
haemorrhage which we have noticed the meaning in para16. As
such, considering the testimony of Dr.Sandeep Dwivedi (PW2) who
clearly states that nature of injury was 5 cm. 4" in temporal region
of the head (brain) i.e. 3.08 sq.inch and cause of death was
subdural and subarachnoid haemorrhage on account of said injury
which actually lead to haemorrhage of the deceased, as a result of
which he died almost instantaneously. Such an act would fall within
the meaning of "grievous hurt" as defined in Section 320 of the IPC
[clause 8].
3 1980 CrLJ 1226
22. The Supreme Court in the matter of Pandurang and others v.
State of Hyderabad4 has held that a blow on the head with an axe
which penetrates half an inch into the head is likely to endanger life
and would fall within the definition of "grievous hurt" and setting
aside the conviction under Section 302 of the IPC, convicted the
accused therein under Section 326 of the IPC.
23. Similarly, in the matter of M/s. Formina Sebastio Azardeo and
another v. State of Goa5 their Lordships of the Supreme Court held
that the nature of injuries found on the deceased attract the
definition falling under clause (viii) of Section 320 of the IPC
establishing that the injuries were such to endanger the human life
set aside the conviction under Section 302 of the IPC and sentenced
them imprisonment for a period of 5 years.
24. Learned counsel for the appellant has relied upon the decision of
Bai Jiba (supra), which has impliedly overruled by the decision of
the Supreme Court in the matter of State of Karnataka v.
Shivalingaiah6 and their Lordships of the Supreme Court have held
that the act of squeezing testicles is dangerous to human life. It
actually lead to the cardiac arrest and thus would clearly to be
covered by Section 320 of the IPC and therefore, amounts to
grievous hurt. In that view of the matter, the reliance placed in the
aforesaid judgment is of no relevance. Similarly, the decision cited
by learned counsel for the appellant in the matter of Babu Ram
(supra) is also not helpful to the appellant.
25. Considering the act of the appellant causing injury in head of the
4 AIR 1955 SC 216
5 AIR 1992 SC 133
6 AIR 1988 SC 115
deceased (brain) by axe and considering the nature of injury i.e.
3.08 sq.inch in head / temporal region, which was not only
dangerous to life, but also designated as "hurt" which endangered
life by which the deceased died instantaneously, the injury can be
classified as injury which endangers life under Clause (viii) of
Section 320 of the IPC, therefore, we set aside the conviction of the
appellant for offence under Section 302 of the IPC and instead
thereof, he is convicted under Section 326 of the IPC and sentenced
to rigorous imprisonment for 5 years. Fine sentence imposed by the
trial Court shall remain intact.
26. In the result, the criminal appeal filed by appellantMohd. Shafique
is partly allowed. His conviction for offence under Section 302 of the
IPC is set aside and he is convicted for offence under Section 326 of
the IPC and sentence to rigorous imprisonment for 5 years. Fine
sentence shall remain intact. Since the appellant is on bail, he is
directed to surrender before the trial Court forthwith to serve out
the remaining sentence.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/
