Ghanshyam Sahu v. State Of Chhattisgarh

QwwEanw 1N THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL No.3 $5§ /201 1.

WV APPELLANT Ghanshyam Sahu, Son of Firat Ram Sahu, (IN JAIL) aged about years, R/o.

Mudpar, Police Station Sarsiva, District Raipur (C.G.)

VERSUS

RESPONDENT :

State of Chhattisgarh, Through Station House Officer, Police Station Sarsiva, District Raipur (C.G.) (f CRIMINAL APPEAL UDNER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973

Page HIGH COURT OF CHHATTISGARH AT BILASPUR Coram Hon ble Mr T P SHARMA & Ho ble Mr.l.S.UBOWEJA, JJ.

riminal Appeal No.388 of 2011 APPELLANT Ghanshyam Sahu

Versus

RESPONDENT State of Chhattisgarh (Criminal Appeal under Section 374 (2) of the Cr.P.C.) DrAnuvad Shrlvastabva With MrAlok Nlgam MrKKDewangan ent/State.

I pnde

JUDGMENT

(Passed on 24'

December, 2014) P Sharma J - T'

ChaHenge In this appeal Is to the judgment of conVIctIon order of sentence dated 26 4 2011 passed by the 15' Addrtronal Sessrons Judge ' w No p Baloda Bazaar In S T hereby & whereunder after holdlng o;

i the appellant guilty f dal death amounting to murder of his brother Mohan and makmgattempt to commitxmurder of Jageshwari (PW-1) convicted 'him under IPC sentenced to undergo imprisonment for life and fine of Rs.500/- and R.l.

for seven years fine Rs.500/-, default of payment of fine further undergo R.l. for three months for each default. Conviction is impugned on the ground that without there being any iota of evidence, Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case prosecution'

account of'some dispute 11.10.2009 at about p.m.

(real brothers) quarreled, then the appellant assaulted the deceased by iron pipe and caused his death, he also assaulted Jageshwari (PW-1) and caused fatal injuries to her. Mahesh died on the spot.

'(PW-1) went to the Police Station Dharsiwa and lodged F.l.R.

vide Ex.P/1.

Merg was recorded vide Ex.P/2. Investigating officer left for scene of occurrence and

3'3 after summoning witnesses vide Ex.P/8 (second Ex.P/8) prepare inquest over dead body of the deceased vide Ex.P/9. Bloodstained and plain soil were recovered from the spot vide Ex.P/8 (nrst EXP/8).

Spot map was prepared by investigating officer vide Ex.P/10. Dead body of the was sent autopsy Government Hospital, Biiaigarh.

Dr.Suresh Kumar Khunte (PW-10) conducted autopsy vide Ex.P/10 and found following injuries:- (i) Eye both side displaced from its cavity, Skull bone celvaria (brain (box) and facial skeleton are fractured. (ii) Content of skull are expelled out.

s (iii) Multiple large lacerated wound on head seen which are ear are lacerated. Head is tl crushed totally.

Massive hemorrhage seen from skul Fract e of left arm seen (vii) 'eck horizontally seen (viii) Blood c o s are seen from head to thorax veloped both re upper limb and lower (iX) njuries and death was homicidal Cause of death was as li nature.

(PW-'1) waszaalso examined by Dr.Suresh KUmar Khunte (PW-10) vide Ex.P/11 and found following injuries:- (i) Lacerated wound of 7cm.x1 .5cm.x2 cm. over occipital area.

(ii) Contusion 5cm.x4 cm. over right forearm laterally. (iii) Painful movement over left shoulder.

) The appellant was also examined by Dr.Suresh Kumar Khune (PW-10 vide Ex.P/17 and found lacerated wound of 4cmx1cm over mid parietal area.

injured Jageshwari (PW-1) was examined radiologically1and as per l report Ex.P/13 the doctor has detected the fracture of skull bone. During l the course ofinvestigation, the appellant was taken into custody, he made disclosure statement of iron pipe vide Ex;P/5 and same was recovered at his instance vide Ex.P/6. Cloths of the appellant were seized vide Ex.P/7. Sealed cloths of the deceased were seized vide EXP/20.

% Statements of the witnesses were recorded uner d Code of Criminal Procedure, 1908 (for short 'Code'). After completion of investigation, charge-sheet was fiied in the Court of Judicial Magistrate First Class, Bhatgaon, who in turn, committed the case to the Court of Sessions, Raipur, from where the 15' Additional Sessions Judge, Baloda Bazaar received the case on transfer for trial. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as twelve witnesses.

Statement accused/appellant was recorded under Section 313 of the Code, in which he denied circumstances appearing against him pleaded 'P innocence and false implication crime question.

He also examined defenj 'f'

hu (DW-1), who has deposed ec ase'd that the as consumed liquor,"hezfwasy'Shouting, abusing and it the appellant and his own wife Jageshwari.'

r providing opportunityfof-hearing to the parties, the trial Court has e nvicted and sentenced theappellant as aforementioned. o d We heard learne th'

impugned and record of e Learned counsel for t mently argued that in the light of evidence Jageshw Manglu Ram'

Sahu (PW-9) a Sadhuram (PW-1 1 ), they are not Isputing the fact that both the parties do not quarrel and have not caused injuries to each other but submit that the deceased has consumed liquor at the time of incident and on account of dispute of wooden plank both the parties have assaulted to each other, also by rod over his head caused lacerated wound of 4cmx1cm on the middle of head vide Ex.P/17, thereafter the appellant provoked and caused injuries to the deceased.

Right of exercise of private defence was available to the appellant, but while exercising his right of private defence he has exceeded his limit.

Therefore, act attributed present does not travel beyond the scope of Section 304 Part-l of the IPC. On other hand, learned Panel.

Lawyer respondent/State opposed appeal argued that after completion first part incident while the deceased was going from the spot the appellantbadly /«,«',.

M§ assaulted him and even after falling down the appellant also assaulted the deceased; which shows the merciless act appellant and basis evidence, Court convicted sentenced appellant as aforementioned.

10.

In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 11.

In the present case, presence of the appellant, deceased & Jageshwari (PW-1) and causing injuries to each other'have not been disputed behalf of the appellant, the appellant has also not disputed the homicidal b death of the deceased, even otherwise, same is also established by the H3 anglu Ram Sahu (PW-9) M evidence Jag e X '/2 evidence of DrSuresh Sadhuram te (PW-10) and autopsy report Ex P/10.,"Death of decease d was homic1dal In nature 12.

regards the complicit o'fthe appellant in crime in question, conviction - ,_ is' su b'

ia'lly based evidence of Jageshwari a (PW ) Sadhuram (PW 11) As per (PW-1) Manglu Ram S PW..

account of dispute of wooden plank evrdence of Jageshwari (.

e f the appellant was pressrng he the deceased, then the deceased '

he appellant assaulted him by iron appella nt:

pipe, the appellant also assaulted :her and caused drievous injuries to her, which have been proved by the doctor.

Manglu Ram Sahu (PW-9) and Sadhuram (PW-11) substantially corroborated evidence l deceased.

Presence (PW-1) spot cannot be Jageshwari (PW-1). Jageshwari (PW-1) is injured witness and wife of the doubted. She has categorically deposed that firstly the appellant pressed the chest of the deceased then the deceased assaulted him thereafter the appellant assaulted him and her Evrdence of Jageshwari (PW 1) finds corroboration from eVIdence of Manglu Ram Sahu (PW 9) Sadhuram (PW-11) medical eVIdence which are suffICIent drawmg an inference that the appellant has caused homICIdal death of the deceased and has also made attempt to commit murder of Jageshwari (PW-1 ). .

As regards the question of motive, in, case of direct evidence, question of motive losses its importance. Even otherwise, motive is aid in criminality

Criminal Appeal Noz388 of 2011 '

\ q Page 5 of, it can be inferred from the kind of weapon used, part of body effected and nature of injury and other circumstances. 14.

As per evidence of Jageshwari (PW-1), on account of dispute of wooden plank, both brothers i.e. appellant and deceased quarreled, the appeilant pressed the chest deceased, then the deceased appellant and caused lacerated wound of 4cmx1cm over head appellant, thereafter the appellant has asSaulted the deceased, although he has caused multiple injuries resulting into multiple fracture, .but the fact remain that both were brothers and on account of claim of some wooden 'a plank the dispute arose firstly the deceased assaulted the appellant then which shows that both caused Injur other y.

r0 ked and lost his temper and:has caused the Injuries which at did not come spo "

th any specrfic .

f.

It shows that the appellant has caused homrcrdal death of the ceased but not wrth Intent to cause hrs death but at the time causrng such Injuries he was havrng definite knowledge that by hrs act the deceased may die therefo act attributed to the present appellant falls wrthln the ambrts of Se 04 Part-l ofthe IPC.

15.

After appreciating th 'ev'id e available on record, the trial Court has convicted the appellant un Sections 302 .and'307 of the'IPC. While convicting the appellant Under Section 307 of therlPC the trial Court has not committed any illegality, but while convicting him under Section 302 of IPC Court not considered aforesaid, mitigating circumstances and thereby committed an illegality. 16.

Consequently, the appeal is partly allowed. Conviction and sentence of under IPC are hereby maintained, however, his conviction under Section 302 of the IPC is altered to Section 304 Part-I ofthe IPC and sentenced to undergo R.l. for ten years and fine of Rs.500/-, in default of payment of fine to undergo R.l. forthree months. Sentences shall run concurrently.

The is 'in jail since 12.10.2009, he is entitled for set off of the period of detention. SdlSdlT.P.'Sharma jnder Singh Uboweia Judge Judge \ a:

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