Chattisgarh High Court
Suraj Sahu vs State Of Chhattisgarh on 18 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 780 of 2016
Suraj Sahu S/o Vishnu Prasad Sahu, Aged about 27 years,
R/o Hospital Road Manipur, Police Chowki Manipur, Police
Station Kotwali Ambikapur, Distt. Sarguja, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Ambikapur, Distt. Sarguja, Chhattisgarh.
---Respondent
For Appellant :- Mr. Shaktiraj Sinha, Advocate
For State :- Ms. Ruchi Nagar, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
18/10/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been
preferred by the appellant herein assailing the impugned
judgment dated 02/06/2016 (Annexure A/1) passed by
learned Session Judge Ambikapur, Distt. Sarguja in
Sessions Trial No. 10/2016 whereby he has been convicted
for offence punishable under Section 302 of IPC and
sentenced to undergo imprisonment for life with fine of
Rs. 3000/- and in default of payment of fine additional R.I.
for three months.
2. Case of the prosecution, in brief, is that on 27/10/2015 at
about 5 PM at village Manipur, P.S. Ambikapur, the
appellant assaulted his minor daughter Ku. Rajlakshmi
alias Ritika, aged about 16 months, with a hammer due to
which she suffered grievous injuries and succumbed to
death.
3. Further case of the prosecution is that at the time of the
incident, construction was going on in the ancestral house
of the appellant. On 27/10/2015 at about 5 PM, labourers
were doing construction work on the first floor and
appellant's mother Smt. Koushilya Sahu (P.W.-1) carried his
daughter (deceased) on her lap and went to the first floor
where construction work was going on. Deceased ku.
Rajlakshmi wanted to go to the lap of his father (appellant)
but he refused to take her due to which she started crying
and upon seeing her cry, the appellant took the hammer
kept nearby and inflicted two blows on the head of his
daugher ku. Rajlakshmi (deceased). Thereafter, Smt.
Koushilya Sahu (P.W.-1) tried to intervene and upon hearing
the noise, the labourers working therein as well as
appellant's wife Smt. Kavita Sahu (P.W.-2) and his sister
Chanda Sahu (not examined before the Court) also came
therein and intervened. Immediately thereafter, they took
deceased ku. Rajlakshmi to Sankalp Hospital and
thereafter, she was taken to Jeevan Jyoti Hospital wherein
she was examined by Dr. Sudhanshu Kiran (P.W.-4) but due
to the grievous injuries suffered by her, ku. Rajlakshmi
succumbed to death on 27/10/2015 at 7 PM itself.
4. On the same day, at about 09:10 PM, appellant's wife Smt.
Kavita Sahu (P.W.-2) went to the Police Station and lodged
and unnumbered first information report vide Ex. P/2. On
the same night, Jeevan Jyoti Hospital informed the Police
Station about the death of the deceased on the basis of
which unnumbered merg intimation was registered vide Ex.
P/17. Thereafter, Crime No. 0610/2015 at Police Station
Ambikapur against the appellant for offence punishable
under Section 302 of IPC vide Ex. P/2A and merg report
was registered as Ex. P/17A. Summons were issued to the
witnesses under Section 175 of CrPC vide Ex. P/6 and in
the presence of the witnesses, inquest was conducted vide
Ex. P/7. The dead body of deceased ku. Rajlakshmi was
subjected to postmortem which was conducted by Dr. K.P.
Vishwakarma (P.W.-4) and as per the postmortem report
(Ex. P/18), cause of death is said to be cardiorespiratory
arrest due to head injury and nature of death is said to be
homicidal. The statements of the witnesses were recorded
and memorandum statement of the appellant was recorded
vide Ex. P/9 pursuant to which blood stained hammer was
seized vide Ex. P/14. From the spot, broken pieces of
bangles belonging to Smt. Koushilya Sahu (P.W.-1) were
seized vide Ex. P/8. The seized hammer was sent for
chemical examination and as per FSL report (Ex. P/21),
blood was found on it. After due investigation, the appellant
was charge-sheeted for offence punishable under Section
302 of IPC which was committed to the Court of Sessions
for hearing and disposal in accordance with law.
5. In order to bring home the offence, prosecution examined as
many as 11 witnesses and brought on record 23
documents. The statement of appellant/accused was
recorded wherein he denied guilt, however, he examined
none in his defence.
6. Learned trial Court, after appreciation of oral and
documentary evidence on record, finding the death of
deceased to be homicidal in nature and further finding the
appellant to be the perpetrator of the crime in question,
proceeded to convict him for offence punishable under
Section 302 of IPC and sentenced as aforesaid.
7. Mr. Shaktiraj Sinha, learned counsel for the appellant,
would submit that eye-witnesses Smt. Koushilya Sahu
(P.W.-1), Smt. Kavita Sahu (P.W.-2), Sitaram Minj (P.W.-5)
and Ramrat (P.W.-11) have turned hostile and have not
supported the case of the prosecution rather they have
stated that deceased ku. Rajlakshmi suffered injuries and
succumbed to death due to falling on the ground and the
trial Court has convicted the appellant for the offence in
question only on the basis of the statement of Dr.
Sudhanshu Kiran (P.W.-4) as well as the statement of Vinay
Kumar Sahu (P.W.-3) made under Section 161 CrPC vide
Ex. P/11 and Article B, which is absolutely illegal and bad
in law particularly when the trial Court itself has recorded
that seizure of hammer from the possession of the appellant
has not been duly proved and the origin of blood found on
the said hammer has also not been duly proved vide FSL
report (Ex. P/21), as such, the instant appeal be allowed
and the appellant be acquitted of the charge punishable
under Section 302 of IPC.
8. Per contra, Ms. Ruchi Nagar, learned State counsel, would
support the impugned judgment and submit that learned
trial Court is absolutely justified in convicting the appellant
for offence punishable under Section 302 relying upon the
statement of Dr. Sudhanshu Kiran (P.W.-4) who has clearly
stated that while deceased ku. Rajlakshmi was admitted in
the Hospital, Vinay Kumar Sahu (P.W.-3), appellant's
brother as well as Chanda Sahu (not examined before the
Court), sister of the appellant, had clearly stated that
deceased had suffered injuries because of the assault made
by the appellant on her head with a hammer, as such, the
instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
10. The first question for consideration is, whether the death of
deceased Ku. Rajlakshmi was homicidal in nature ?
11. Learned trial Court has recorded an affirmative finding in
this regard relying upon the medical opinion of Dr. K.P.
Vishwakarma (P.W.-8) as well as the postmortem report (Ex.
P/18) in which it has categorically been held that cause of
death is due to cardiorespiratory arrest as a result of head
injury and the nature of death is homicidal. Taking
consideration of the entire evidence available on record as
well as looking to the injuries sustained by the deceased on
her head and relying upon the medical opinion of Dr. K.P.
Vishwakarma (P.W.-8) as well as postmortem report (Ex.
P/18), we are of the considered opinion that learned trial
Court has rightly held the death of deceased ku. Rajlakshmi
to be homicidal in nature. Moreover, the fact that death of
the deceased was homicidal in nature has also not been
seriously disputed by learned counsel for the appellant. As
such, we hereby affirm the said finding recorded by the trial
Court that the death of deceased ku. Rajlakshmi was
homicidal in nature.
12. The next question for consideration is, whether the trial
Court is justified in convicting the appellant for offence
punishable under Section 302 of IPC holding him to be the
author of the crime in question ?
13. The trial Court has convicted the appellant for offence
punishable under Section 302 of IPC relying upon the
application for postmortem report (Ex. P/18A) as well as the
bed head ticket (Ex. P/12) and the statement of Dr.
Sudhanshu Kiran (P.W.-4).
14. Admittedly, eye-witnesses of the incident namely Smt.
Koushilya Sahu (P.W.-1), mother of the appellant,
Smt.Kavita Sahu (P.W.-2), wife of the appellant, Vinay Sahu
(P.W.-3), brother of the appellant, Sitaram Minj (P.W.-5) and
Ramrat (P.W.-11), all have turned hostile and have not
supported the case of the prosecution. All of them have
unequivocally stated that deceased suffered injuries on her
head on account of falling from the kitchen platform which
was under construction and thereafter, she was
immediately taken to the hospital where she succumbed to
death.
15. In paragraph 4 of the impugned judgment, the trial Court
has itself recorded that seizure of hammer from the
possession of the appellant has not been duly proved by the
prosecution but thereafter, the trial Court proceeded to hold
him guilty for the offence in question relying upon the
statement of Dr. Sudhanshu Kiran (P.W.-4) who has stated
before the Court that on 27/10/2015 at about 06:05 PM,
deceased was brought to Jeevan Jyoti Hospital and he had
examined her and had found that she was in an
unconscious condition and was about to succumb to death.
He noticed swelling on her left and right parietal region, a
bruise on her right cheek and abrasion on her left cheek.
She was immediately admitted in the ICU and after about
20 minutes she suffered cardiorespiratory arrest and at
about 07:00 PM, she succumbed to death. He has further
stated that deceased was brought to the hospital by her
uncle Vinay Kumar Sahu (P.W.-3), aunt Chanda Sahu (not
examined) and mother Kavita Sahu (P.W.-2) and when he
asked them as to how the deceased suffered such injury,
Vinay Kumar Sahu (P.W.-3) and Chanda Sahu had told him
that their brother Suraj Sahu (appellant) was in the terrace
where construction work was going on and when the
deceased tried to go on his lap, the appellant took the
hammer kept nearby and inflicted two blows on her head
and assaulted her. In this regard, Vinay Kumar Sahu (P.W.-
3) had also made a handwritten note and had himself
signed it which is a part of the Bed-head ticket (Ex. P/12)
and has been marked as Article B.
16. From a careful perusal of the record, it is evident that bed-
head ticket (Ex. P/12) in which history of the patient
(deceased) was recorded by Dr. Sudhanshu Kiran (P.W.-4)
when she was admitted to Jeevan Jyoti Hospital which also
contains Article B which is a handwritten note of Vinay
Kumar Sahu (P.W.-3) stating that deceased suffered injuries
on her head on account of the assault made by the
appellant with hammer. However, the said Article B which
is a part of bed-head ticket (Ex. P/12) has not been duly
proved as Vinay Kumar Sahu (P.W.-3), when he was
examined on oath before the Court, turned hostile and
clearly stated that their house was under construction and
the deceased fell from the kitchen platform due to which
she suffered grievous injuries on her head, though he had
admitted that he had put his signature on Article B.
Moreover, Chanda Sahu, sister of the appellant and aunt of
the deceased, who is also said to have taken the deceased to
the Hospital along with Vinay Kumar Sahu (P.W.-3) and
Smt. Kavita Sahu (P.W.-2) and who also apparently
informed Dr. Sudhanshu Kiran (P.W.-4) about the appellant
assaulting the deceased with hammer, despite being
available, has not been examined before the Court to prove
bed-head ticket (Ex. P/12) for the reasons best known to
the prosecution. As such, we are of the considered opinion
that the trial Court has erred in relying upon the bed-head
ticket (Ex. P/12) as well as the statement of Dr. Sudhanshu
Kiran (P.W.-4) to convict the appellant for the offence in
question.
17. The next document which has been relied upon by the trial
Court is the first information report (Ex. P/2) which has
been lodged by Smt. Kavita Sahu (P.W.-2) in which she has
stated that her husband (appellant) assaulted her daughter
(deceased) by hammer due to which she sustained grievous
injury on her head, but Smt. Kavita Sahu (P.W.-2) has
turned hostile and has not supported the case of the
prosecution, therefore, reliance placed by the trial Court
upon the testimony of Dhananjay Pathak (P.W.-9), who is
said to have proved the first information report (Ex. P/2),
cannot be said to be in accordance with law for convicting
the appellant for the offence in question.
18. Similarly, in the application for postmortem (Ex. P/18A), a
similar endorsement has been made by Dhananjay Pathak
(P.W.-9) stating that appellant has assaulted the deceased
by hammer due to which she suffered grievous injury on
her head and succumbed to death and he has requested Dr.
K.P. Vishwakarma (P.W.-8) to conduct postmortem. The
said application for postmortem (Ex. P/18A) also appears to
have been made on the basis of the information given by
Smt. Kavita Sahu (P.W.-2), who as noticed above has turned
hostile and has not supported the case of the prosecution at
all, as such, both of these documents i.e. first information
report (Ex. P/2) as well as application for posmortem (Ex.
P/18A) could not have been relied upon by the trial Court to
convict the appellant for offence punishable under Section
302 of IPC as these incriminating documents have been
recorded on the basis of the statement given to Investigating
Officer Dhananjay Pathak (P.W.-9) by Smt. Kavita Sahu
(P.W.-2). As such, the trial Court has further erred in
relying upon the first information report (Ex. P/2) as well as
the application for postmortem report (Ex. P/18A) to convict
the appellant for the offence in question.
19. In view of the aforesaid legal discussion, it is quite vivid that
though all the eye-witnesses namely Smt. Koushilya Sahu
(P.W.-1), Smt. Kavita Sahu (P.W.-2), vinay Sahu (P.W.-3),
Sitaram Minj (P.W.-5) and Ramrat (P.W.-11) have turned
hostile and have not supported the case of the prosecution
and the seizure of weapon of assault i.e. hammer has also
not been found proved yet the trial Court has convicted the
appellant relying upon the statement of Dr. Sudhanshu
Kiran (P.W.-4) and bed-head ticket (Ex. P/12) which is
absolutely contrary to law as Dr. Sudhanshu Kiran (P.W.-4)
has stated that it was the uncle of the deceased, Vinay
Kumar Sahu (P.W.-3) as well as the aunt of the deceased
Chanda Sahu, who had informed him that deceased
suffered head injuries on account of the assault made by
the appellant on her head, but Vinay Kumar Sahu (P.W.-3)
has turned hostile when examined before the Court and has
clearly stated that deceased suffered injuries on account of
falling from the kitchen platform which was under
construction and Chanda Sahu, though available, has not
even been examined before the Court. The trial Court has
further erred in relying upon the first information report
(Ex. P/2) as well as the application for postmortem report
(Ex. P/18A) as the first information report was lodged by
Smt. Kavita Sahu (P.W.-2), who has turned hostile and has
not supported the case of the prosecution when examined
on oath before the Court and the application for
postmortem report (Ex. P/18A) has also been recorded by
the Investigating Officer Dhananjay Pathak (P.W.-9) on the
basis of the statement of Smt. Kavita Sahu (P.W.-2). Thus,
in our considered opinion, the trial Court has legally erred
in convicting the appellant for offence punishable under
Section 302 of IPC. We hereby set aside the impugned
judgment recording conviction of the appellant and
awarding sentence as aforesaid. The appellant is acquitted
of the charge levelled against him and he be released
forthwith, if not required in any other case.
20. This criminal appeal stands allowed accordingly.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Harneet
