Chattisgarh High CourtBhole @ Chandrapal vs State Of Chhattisgarh on 16 March, 2022Author:Sanjay K. AgrawalBench:Sanjay K. Agrawal,Rajani Dubey1\n\n                                                                    NAFR\n\n          HIGH COURT OF CHHATTISGARH, BILASPUR\n\n                   Criminal Appeal No.554 of 2014\n\n     Bhole @ Chandrapal S/o Sonsai, aged about 21 years,\n     Occupation Agriculturist, R/o Village Adhina, Police Station\n     Bhatgaon, District Surajpur, Civil & Revenue District Surajpur\n     (CG)\n                                                      ---- Appellant\n                                                            (In Jail)\n\n                                 Versus\n\n     State of Chhattisgarh Through Station House Officer, Police\n     Station Bhatgaon, District Surajpur (CG)\n                                                          ---- Respondent\n\nFor Appellant:               Mr.Sakti Raj Sinha, Advocate\nFor Respondent/State:        Mr.Sudeep Verma, Dy.G.A. with Mr.Anmol\n                             Sharma, Panel Lawyer\nAmicus Curiae:               Mr.Anil Pillai, Advocate\n\n             Hon'ble Shri Justice Sanjay K. Agrawal and\n                 Hon'ble Smt.Justice Rajani Dubey\n\n                          Judgment on Board\n                             (16.03.2022)\n\nSanjay K. Agrawal, J.1. This criminal appeal preferred by the appellant/accused herein\n\n     underSection 374(2)of the CrPC is directed against the\n\n     judgment of conviction recorded for offence punishable underSection 302of the IPC and sentence awarded for imprisonment\n\n     for life and fine of ₹500/-, in default of payment of fine, to further\n\n     undergo rigorous imprisonment for one year by the Sessions\n\n     Judge, Surajpur by the impugned judgment dated 28.5.2014 in\n\n     Sessions Trial No.27/2013.22. Case of the prosecution, in brief, is that on 02.11.2013 at about 4\n\n  p.m. the appellant herein assaulted deceased Jagdhari Rajwade\n\n  by crowbar by which he suffered grievous injuries and died while\n\n  escorting to hospital. It is further case of the prosecution that on\n\n  02.11.2013 Tilakram (PW-1), father of the deceased, lodged\n\n  merg intimation (Ex.P-11) and also lodged FIR (Ex.P-10) to\n\n  Police Station Bhatgaon that mother of the appellant had died on\n\n  20.10.2013 and on that account, the appellant used to say that\n\n  mother of the deceased namely Birso Bai (PW-2) had practiced\n\n  witchcraft and by which mother of the appellant has died and on\n\n  that account, the appellant had developed revengeful attitude\n\n  and when on 02.11.2013 his son Jagdhari Rajwade was coming\n\n  back from his field after collecting pulses in kawar and when\n\n  reached near the appellant's house, the appellant herein\n\n  assaulted Jagdhari by crowbar saying that on account of\n\n  witchcraft practice played by his mother, his (appellant's) mother\n\n  has died and after causing four injuries Jagdhari fell down on the\n\n  spot and the appellant absconded from the spot. Tilakram (PW-1) and others escorted Jagdhari to Bhaiyathan hospital, but he\n\n  was declared dead and accordingly, merg intimation and FIR\n\n  were registered in Police Station Bhatgaon. Thereafter, inquest\n\n  was conducted vide Ex.P-5 on 02.11.2013. Dead body was sent\n\n  for postmortem to the Community Health Centre, Bhatgaon,\n\n  where Dr.Maheshwar Singh (PW-5) conducted postmortem and\n\n  opined that cause of death was hemorrhagic shock and syncope.3On the memorandum statement of the appellant herein vide\n\n  Ex.P-1 in presence of Pitambar (PW-3) and Mangalram (PW-4),\n\n  crowbar was recovered vide Ex.P-2, which was sent to FSL for\n\n  chemical examination, but examination report is not available on\n\n  record. Statements of the prosecution witnesses were recorded\n\n  underSection 161of the CrPC. After completion of investigation,\n\n  charge-sheet was filed before the Judicial Magistrate First Class,\n\n  Surajpur, which was committed to the Court of Session, Surajpur\n\n  for trial in accordance with law. The appellant herein abjured the\n\n  guilt and entered into defence.3. In order to bring home the above-stated offence, the prosecution\n\n  examined as many as 9 witnesses and exhibited 14 documents,\n\n  whereas the accused / appellant has examined none in his\n\n  defence and no document has been exhibited in his support.4. The trial Court after appreciating oral and documentary evidence\n\n  available on record, by its judgment dated 28.05.2014, convicted\n\n  the appellant on the basis of statement of Tikalram (PW-1),\n\n  father of the deceased and other circumstantial evidence and\n\n  sentenced him as aforementioned, against which, this criminal\n\n  appeal has been preferred by the appellant / accused.5. Mr.Sakti Raj Sinha, learned counsel for the appellant/accused,\n\n  would submit that the prosecution has failed to bring home the\n\n  offence as eyewitnesses Tilakram (PW-1) and Birso Bai (PW-2)\n\n  being father and mother of the deceased their evidence are not4reliable as they have also tried to implicate the father of the\n\n  appellant, but he was not charge-sheeted, which goes to show\n\n  that both the witnesses are not reliable and their statements\n\n  cannot be relied upon to base conviction. Similarly, crowbar was\n\n  seized on the basis of memorandum statement of the appellant\n\n  and it was sent to FSL for chemical examination, but FSL report\n\n  has not brought on record to connect the appellant herein. He\n\n  would further submit that the present case falls underSection\n\n  304Part-II of theIPCas there is sufficient evidence on record to\n\n  hold that admittedly mother of the appellant died on 20.10.2013\n\n  and the appellant had developed feeling that on account of\n\n  witchcraft played by the deceased mother, his mother died and\n\n  even though there was no intention on the part of the appellant\n\n  to cause death as on the date of incident the appellant was\n\n  standing outside his house and only when the deceased came\n\n  along with pulses in kawar, then noticing the deceased, the\n\n  appellant assaulted him by crowbar and immediately ran away\n\n  from the spot. It is not the case that he had intention to cause\n\n  death or kill him, otherwise, he could not have assaulted prior to\n\n  the date of incident and medical evidence has also not supported\n\n  the case of the prosecution and as such, the sentence awarded\n\n  deserves to be converted toSection 304Part-II of theIPC.6. On the other hand, Mr.Sudeep Verma, learned Deputy\n\n  Government Advocate for the respondent/State, would submit\n\n  that the prosecution has been able to bring home the offence5and that is the reason, the trial Court has convicted the appellant\n\n  for offence underSection 302of the IPC, particularly when the\n\n  appellant caused four injuries by crowbar in head of the\n\n  deceased and that too from back side and when the deceased\n\n  fell down immediately the appellant herein absconded from the\n\n  spot and medical report clearly demonstrates four fractures in\n\n  head, which goes to show that the appellant had intention to kill\n\n  and thereby he assaulted with crowbar and ran away from the\n\n  spot and as such, the appeal deserves to be dismissed.7. Mr.Anil Pillai, learned Amicus Curiae, would submit that on the\n\n  basis of oral and documentary evidence         brought before the\n\n  Court, it cannot be inferred that the accused was carrying\n\n  intention or having intention to kill the deceased. Consequently,\n\n  offence would come within the definition ofSection 299of the\n\n  IPC and it is a case which will fall either underSection 304Part-I\n\n  orSection 304Part-II of theIPC.8. I have heard learned counsel appearing for the parties,\n\n  considered their rival submissions made hereinabove and also\n\n  went through the records with utmost circumspection.9. The first question as to whether death of the deceased was\n\n  homicidal in nature, which is not seriously disputed by the\n\n  learned counsel for the appellant and furthermore, the trial Court\n\n  upon appreciation of medical evidence and particularly taking\n\n  into consideration four fractures which the deceased had6suffered in head and finding the cause of death as syncope and\n\n  hemorrhagic shock rightly came to the conclusion that death of\n\n  the deceased was homicidal in nature and we hereby affirm the\n\n  said finding.10.     The next question that has been argued by the learned\n\n  counsel for the appellant is that whether the case would fall\n\n  within the ambit ofSection 299or 300 of theIPCand whether\n\n  conviction for offenceu/s 302IPC can be converted underSection 304Part-II of theIPC.11.     It is admitted fact on record that on 20.10.2013 the\n\n  appellant's mother died, on account of which the appellant had\n\n  developed feeling that the deceased mother Birso Bai (PW-2)\n\n  had played witchcraft to his mother and by which she died. Birso\n\n  Bai (PW-2), mother of the deceased, has clearly stated that the\n\n  appellant and his father used to say that his (appellant's mother)\n\n  died on account of witchcraft played by her. Thakur Prasad\n\n  Rajwade (PW-8), son of the deceased, in para-5 of his statement\n\n  has stated so. Tilakram (PW-1) in FIR (Ex.P-10) and merg\n\n  intimation (Ex.P-11) has stated that on account of witchcraft\n\n  played by Birso Bai (mother of the deceased), mother of the\n\n  appellant had died. It is not in dispute that on the date of\n\n  incident, the appellant was standing in front of his own house\n\n  and it is not the case of the prosecution that he was not armed\n\n  with deadly weapon including that of crowbar and only when the\n\n  deceased came from his field along with pulses in kawar, then7noticing his presence in front of his house the appellant\n\n  assaulted him by crowbar from back side, by which he suffered\n\n  injuries and died. There is nothing on record to show that there is\n\n  old enemy between two families.12.    It is stated at the Bar that village Adhina, Police Station\n\n  Bhatgaon is backward area and it is a fact of common\n\n  knowledge that the appellant and the deceased belonged to\n\n  under-developed community and most of them are illiterate and\n\n  they believe in superstitions. It is a common phenomena in the\n\n  community dominated areas that they practice magic and many\n\n  other type of witchcrafts to achieve their object whether good or\n\n  bad. They hold many superstitions responsible for any\n\n  misfortune and mis-happenings in their life and sometimes they\n\n  became revengeful for no other reason but for their own doubts\n\n  that someone is playing witchcrafts on them or something wrong\n\n  had been happened in their family or life due to witchcrafts\n\n  played by someone. Many a time, on the basis of their suspicion,\n\n  they declare some woman as a witch and even their Panchayat\n\n  passes weird/hippocratic orders against them.13.    In the instant case, the appellant was suspecting that his\n\n  mother has died on account of witchcraft played by the deceased\n\n  mother and he had developed a plea of anger/protest as the\n\n  appellant's mother died on 20.10.2013, but he remained silent.\n\n  There is nothing on record that there is old enmity between two\n\n  families and nothing on record to show that the appellant was8armed with deadly weapon, but only when he noticed the\n\n  presence of Jagdhari Rajwade, then he assaulted him by\n\n  crowbar by which Jagdhari suffered injuries and died while taking\n\n  him to hospital and the doctor has opined that cause of death\n\n  was hemorrhagic shock and syncope. As argued by the learned\n\n  counsel for the appellant nothing has come on record to\n\n  demonstrate that there was intention to kill or object of the\n\n  appellant was to kill deceased Jagdhari. The appellant was\n\n  angry suspecting witchcraft played to his mother by Birso Bai\n\n  (PW-2). Nothing serious was there. The appellant has no\n\n  criminal history. No brutality appears in the incident. Thus, we\n\n  are of the considered opinion that though the appellant has\n\n  caused injuries with a knowledge that it is likely to cause death of\n\n  deceased Jagdhari, but without any intention to cause death, as\n\n  such, the appellant has satisfied four requirements namely (i) it\n\n  was sudden attack on account of revenge; (ii) there was no\n\n  premeditation; (iii) the act was done out of revenue/vengeance;\n\n  and (iv) the appellant had not taken any undue advantage or\n\n  acted in a cruel manner and therefore, the act of the appellant\n\n  would fall within the purview ofSection 304Part-II of theIPC.14.     Accordingly, conviction of the appellant underSection 302of the IPC is hereby set-aside and instead thereof, he is\n\n  convicted for offence underSection 304Part II of theIPC. Since\n\n  the appellant is in jail from 03.11.2013 i.e. for more than eight\n\n  years and five months, we award the sentence to the period9already undergone by him. The appellant is in jail, he be\n\n        released forthwith, if not required in any other case.15.     The criminal appeal is allowed in part to the extent\n\n        indicated hereinabove.16.     This court appreciates the valuable assistance rendered by\n\n        Mr. Anil Pillai, learned amicus, who on short notice assisted the\n\n        Court.Sd/-                                 Sd/-\n\n        (Sanjay K. Agrawal)                       (Rajani Dubey)\n             Judge                                   Judge\nB/-