Chattisgarh High CourtBalak Ram vs State Of Chhattisgarh on 12 February, 2009Author:Sunil Kumar SinhaBench:Rajeev Gupta,Sunil Kumar SinhaHIGH COURT OF CHATTISGARH AT BILASPUR       





              Criminal Appeal No. 810 of 2003




                    Balak Ram
                           ...Petitioners



                          Versus



                   State  of Chhattisgarh
                                        ...Respondents





!     Ms. Pushpa Dwivedi, Counsel for the appellant


^     Mr. Ashish Shukla, Govt. Advocate, for the State




Honble Shri Rajeev Gupta,J,Honble Shri Sunil Kumar Sinha 





       Dated:12/02/2009



:       Judgment



   (Appeal under Section 374 (2) of TheCode of Criminal
                        Procedure)



                         JUDGMENT(12.02.2009)

         Following     judgment   of    the    Court   was
delivered    by
Sunil Kumar Sinha, J.(1)   Appellant Balak Ram @ Baul stands convicted  u/s  302IPCfor  commission of murder of his wife, Jakni Bai,  and

sentenced to undergo imprisonment for life by the  Sessions

Judge, Surguja (Ambikapur) Chhattisgarh, in Sessions  Trial

No. 68/2002 on 23.10.2002.(2)   Deceased,  Jakni Bai, was resident of village  Kedma.

She  was  married to appellant, who was resident of village

Jivualiya,  which is at a distance of 1+  Km  from  village

Kedma.  On  2.11.2001, the deceased came  to  her  parents'

place  in  village Kedma at about 10-11.00 a.m. for  taking

whey  (Mathah), where she was retained by her  mother.  The

allegations are that in the evening at about 6.00 p.m., the

appellant came there and assaulted the deceased with hands, 

fists  and  chappel (slipper). She sustained some  external

injuries.  Her two teeth were uprooted. This was  witnesses

by  the  mother of the deceased namely Padwaien Bai (PW-3). 

Manta  Ram (PW-2), brother of the deceased, was not in  the

house  on 2.11.2001 as he had gone for guarding the ground-

nut  crops.  When he returned on 3.11.2001, the  story  was

narrated to him by his mother. Jakni Bai died at about 7.00

p.m.  on 3.11.2001 on account of injuries sustained by her.

The matter was reported to the concerned police station  on

4.11.2001 by brother of the deceased, Manta Ram (PW-2),  on 

which,  merg  intimation (Ex.-P/6) and a First  Information

Report (Ex.-P/3) were recorded.(3)   On  such information, the Investigating Officer  left

for  the scene of occurrence, gave notice (Ex.-P/4) to  the

Panchas and prepared inquest (Ex.-P/5) on the body  of  the

deceased.  The dead body of the deceased was sent  for  its

post-mortem  to  Community Health Center,  Udaipur  through

requisition Ex.-P/9, where the post-mortem examination  was

conducted  by Dr. I.D. Bhatnaagar (PW-5), who prepared  his

report  Ex.-P/18. The Autopsy Surgeon noticed the following

injuries on the body of the deceased:(i)  Lacerated wound over left eye size 1  inch
          x + inch x + inch;(ii) Bruise  over upper lip with laceration  on
          upper  gum.  Two teeth of upper  jaw  were
          uprooted;(iii)      Bruise  around neck which  may  have
          been caused by throttling ;(iv) Bruise over right chest size 3 inch  x  3
inch &(v)  Abrasion over left forearm size 2 inch x 2 inch.On  internal examination, he noticed that blood clots  were

there  on  the membrane of right lung and it was  ruptured.

Other  organs like liver, spleen and kidney were congested.

He  opined  that  the cause of death was  asphyxia  due  to

throttling and internal haemorrhage in the lungs and it was

homicidal in nature.(4)   In  further  investigation, spot maps  were  prepared

under Ex.-P/2 & P/8. 2 Nos. of teeth & rubber slipper  were

seized  under  Ex.-P/10.  Saree &  blouse,  sent  from  the

hospital,  were seized under Ex.-P/11. The  cloths  of  the

deceased  were  sent  for  their  chemical  examination  to

Forensic  Science Laboratory, Raipur under  Ex.-P/16,  from

where,  a  report Ex.-P/17 was obtained. According  to  the

F.S.L. report, blood stains were found on those cloths.



(5)   After completion of usual investigation, the  charge-

sheet  was filed in the Court of Chief Judicial Magistrate,

Ambikapur,  who  in  turn,  committed  the  matter  to  the

Sessions  Court, Ambikapur, where the trial  was  conducted

and  the  appellant/accused was convicted and sentenced  as

aforementioned.(6)  Ms. Pushpa Dwivedi, learned counsel for the appellant,

has  not disputed the homicidal death of the deceased.  She

has  also not disputed the involvement of the appellant  in

crime in question. She has only argued that the opinion  of

the  Doctor  that  the cause of death was asphyxia  due  to

throttling  does not appear to be correct in  view  of  the

features  found in the post-mortem report and the  evidence

of  the mother of the deceased namely- Padwaien Bai (PW-3), 

who  has  witnessed the occurrence, and further in view  of

the  fact  that  the incident took place at  6.00  p.m.  on

2.11.2001 and the deceased was alright for the whole  night

as also till the evening of 3.11.2001 and she died at about

7.00  p.m. She submits that if the death was on account  of

throttling or strangulation by compression of the  neck  by

hands,  the  deceased  would have died instantaneously  and

many other post-mortem features would have been observed by  

the  Doctor.  She  argued that, in fact, the  deceased  was

beaten  by  the  husband by hands, fist  and  chappel,  who

received some injuries and ultimately, she died after about

more  than  24  hours, therefore, the  appellant  would  be

liable  for punishment under some lesser Section preferably

Part-II ofSection 304IPC.(7)   On  the other hand, Mr. Ashish Shukla, learned  Govt.

Advocate,  appearing on behalf of the State, opposed  these

arguments  and supported the judgment and order  passed  by 

the Sessions Court.(8)   We have heard the learned counsel for the parties  at

length  and  have also perused the records of the  sessions

case.(9)    In  case  of  strangulation,  if  the  windpipe   is

compressed  so  suddenly as to occlude the passage  of  air

altogether,  the individual is rendered powerless  to  call

for  assistance, becomes insensible, and may die instantly.

If  the windpipe is not completely closed, the face becomes

cyanosed,  bleeding  occurs from the  mouth,  nostrils  and

ears,  the  hands  are  clenched  and  convulsions  precede

delayed  death.   In  such cases,  the  lungs  are  usually

markedly   congested,  showing  haemorrhagic  patches   and 

petechiae and exuding dark fluid blood on section. They may

show  emphysematous  bullae on their surface  due  to  over

distension  and  rupture  of the interalveolar  septa.  The

bronchial tubes usually contain frothy, bloodstained mucus.

To   arrive  at  a  conclusion  that  death  was   due   to

strangulation,  it  is necessary, therefore,  to  note  the

effects  of violence in the underlying tissues in  addition

to  the ligature mark or bruise marks caused by the fingers

or  by  the foot, knee and other appearances of death  from

asphyxia. At the same time, the possibility of other causes

of  suboxic or asphyxial death should be excluded. This  is

what  Modi  observed  in  his  Medical  Jurisprudence   and

Toxicology, 23rd Edition, pp. 576, 580 & 581.



(10) In case on hand, the Autopsy Surgeon, PW-5, has opined 

that the cause of death was asphyxia due to throttling  and

internal  haemorrhage in the lungs. But, what was the  real

cause  of  haemorrhage  or rupture of  lung  has  not  been

determined by him. The Autopsy Surgeon has only  said  that

there  was  a  bruise around the neck which may  have  been

caused  by throttling but he has not done any investigation

to  find  out  the  effects of violence in  the  underlying

tissues  in addition to the bruise marks caused by  fingers

around the neck. The Autopsy Surgeon has also not gone into 

investigate the other appearances of death by asphyxia  and

has given his such opinion regarding asphyxial death.



(11) PW-3, Padwaien Bai, mother of the deceased, is an  eye

witness to the incident. She deposed in her examination-in-

chief that the incident took place at about 6.00 p.m.  when

her  son-in-law  came  to  their house  and  assaulted  the

deceased  by hands and fists and chappel. She deposed  that 

along  with the other injuries and uprooting of teeth,  her

daughter  received injuries on the neck also. She has  very

specifically   deposed  that  her  daughter   was   talking

throughout in the night and she died on the next day.  This

goes  to  show that the deceased was alive for  about  more

than  24  hours  and she was throughout  talking  with  the

mother.  If,  in fact, the cause of death would  have  been

asphyxia due to strangulation or throttling, the mother  of

the  deceased  would have deposed that her  son-in-law  had

pressed the neck of the deceased for throttling, and in all

probability,  the  deceased  would  have  been   powerless,

insensible  and she would have died instantaneously.  Apart

from  the above, there would have been some injury  on  the

trachea and other internal portion of the neck.



(12) In the present case, the eye witness account says that

it  was  a case of beating by hands and fists which  caused

death  after 24 hours, whereas medical opinion is  pointing

towards  the  death  by  throttling or  strangulation.  The

Supreme  Court held in the matters of State  of  U.P.  -vs-

Krishna  Gopal and another, (1988) 4 SCC 302  and  Ramakant  

Rai -vs- Madan Rai and others AIR 2004 S.C. 77 that  "where

the   eye-witnesses''  account  is   found   credible   and

trustworthy,   medical  opinion  pointing  to   alternative

possibilities  is  not accepted as conclusive.   Importance

and  primacy  should be given to the orality of  the  trial

process.   Eye witnesses' account would require  a  careful

independent assessment and evaluation for their credibility

which  should not be adversely prejudged making  any  other

evidence,   including  medical  evidence,   as   the   sole

touchstone for the test of such credibility.  The  evidence

must  be  tested  for  its  inherent  consistency  and  the

inherent  probability  of the story; consistency  with  the

account   of  other  witnesses  held  to  be  creditworthy;

consistency with the undisputed facts; the `credit' of  the

witnesses;  their  performance in  the  witness-box;  their

power of observation etc.  Then the probative value of such

evidence  becomes eligible to be put into the scale  for  a

cumulative evaluation."(13) Sometimes, doctors also may not bestow sufficient care

while performing examination or preparing records and their

opinion  may  be  based  on  inadequate  or  incomplete  or

defective examination or lack of complete knowledge. Doctor

is  a  witness of both fact and opinion.  Medical  evidence

acts  as a check upon testimony of eye witness; it is  also

independent  evidence  in so far as  it  establishes  facts

e.g., tattooing marks, nature and dimensions of injury etc.

Medical  evidence  is  also corroborative  of  eye  witness

testimony, in as much as it may show that the injury  might

have been caused in the manner alleged.  Defence could  use

the medical evidence to show that the injury could not have

been  caused  as alleged and thereby discredit eye  witness

testimony.  Court has to remember that medical evidence  is

mainly  opinion evidence on which the court could form  its

own   independent   conclusion.   However,   in   case   of

divergence,  the Court must try to reconcile  the  two;  if

that  is  not  possible  the court has  to  appreciate  the

evidence like any other evidence, having regard to  reasons

and  data  provided  by  the  Doctor  and  the  cogency  or

otherwise  of eye witness testimony.  If eye witnesses  are

credible   and  trustworthy,  medical  opinion   suggesting

alternative  possibility may not be accepted as  conclusive

and primacy should be given to oral evidence [Please see  -

2007   CRI.   L.J.   1036  (Atami  Laxman   V.   State   of

Chhattisgarh)].(14)  Here  credibility of the eye witness, PW-3,  Padwaien

Bai, is not in doubt. The entire case of the prosecution is

based   upon   her   sole  testimony.  Her   testimony   is

corroborated  by version of her son, PW-2, Manta  Ram,  who

had  also  seen  the  deceased alive on 3.11.2001  and  has

lodged  the First Information Report. This shows  that  the

death was not instantaneous and the deceased died after  24

hours.  In view of all this, in appreciation, we find  that

the opinion of Dr. I.D. Bhatnaagar (PW-5) that the cause of

death  was  asphyxia due to throttling was not correct.  It

appears  that  the  Doctor could not notice  some  internal

injuries  of ribs etc. which may have punctured  the  lungs

and  has  simply  suggested that the  cause  of  death  was

asphyxia  due  to throttling. Therefore, we hold  that,  in

fact,  it  was  not  a death on account  of  throttling  or

strangulation  of  the deceased by the  appellant  and  the

death was on account of injuries, including the injuries on

lungs, sustained by the deceased.(15)  Now  we  shall  consider  as  to  what  offence   the

appellant, in fact, has committed. According to the  mother

of  the  deceased, the deceased was beaten by the appellant

by  hands  and fists and a rubber slipper as the  appellant

came  to  their house un-arm. Even he did not pick  up  any

weapon or article from the place of occurrence. This  shows

that  the  appellant was having no intention  to  kill  his

wife.  Had  there  been any intention, the appellant  would

have come with some weapon or he would have used it at  the 

moment.  The  death  was  also  not  instantaneous  as  the

deceased died after more than 24 hours of the incident.  It

appears that some blow by hands and fists, proved fatal  to

the  deceased  causing  injuries to  her  lungs  which  the

appellant  may not have intended to cause to the  deceased.

However,  it  can well be inferred that the  appellant  was

having  knowledge that his such act may cause death of  the

deceased  or  it  may cause such bodily  injury  which  may

result  into  death  of  the deceased.  In  our  considered

opinion, the act of the appellant was culpable homicide not

amounting  to murder and would be punishableu/s  304IPC.

Since the intention appears to be lacking in this case, but

the knowledge is writ large, therefore, the appellant would

be liable for punishment under Part-II ofSection 304IPC.



(16)  Accordingly,  the  appeal  is  partly  allowed.   The

conviction  and sentence awarded to the appellant  u/s  302IPCare set aside. Instead, the appellant is convictedu/s

304Part-IIIPCand  sentenced  to  undergo   rigorous

imprisonment  for 10 years. The appellant is  in  jail.  He

shall  be  entitled to set-off the period already undergone

by him.CHIEF JUSTICE                           JUDGE