Ajay @ Mintu @ Anthoni Kerketta And ANR. v. State
.NAFF HIGH COURT OF CHHATTISGARH, BILASPUR CRA N . 637 of 2007 1.
Ajay @ Mintu @ Anthoni Kerketta, S/o Clament Kermetta, aged about years, r/o Village Burairangi, P.S.
Bano, District Simdega (Jharkhand) at present R/o Number Barau dafai, DomanhiH Colliery, P.S. Chirmiri, Distt. Korea (CG) 2.
Kishun Kumar @ Kishan S/o Motilal , aged about 20 years, R/o Vili.
Semra, Manendragarh, Distt, Korea, C.G. At Present R/o 20 Number Barau Dafai, Domanhill Colliery, P.S. Chirmiri, Distt, Korea, C.G. ---- Appellants
Versus
- State of CG, through Police Station Chirmiri, Distt. Korea (CG) ---- Respondent K e For Appellants :
Shri FS Khare, Advocate.
For Respondent/State Shri V. Goverdhan, Panel Lawyer.
Hon'bie Shri Justice Pritinker Diwaker on'ble Shri Justice R.C.S. Samant H_d-___,_._..___#-_-- Judgment On Board By gustice Pritinker Diwaker 16/1 2I2016:
This appeal arises out judgment conviction order sentence dated 12.6.2007 passed by First Additional Sessions Judge, Manendragarh, Distt. Korea in S.T.No.121/2006 convicting the accused/appellants under Section 302/34 of IPC and sentencing them undergo imprisonment for life fine Rs.500/- default r .
stipulation.
02.
In present case, name Suresh Das @r Gudda. As per prosecution case, the deceased was having affair with sister appellant No.1 Ajay, which was not liked by him on
13.1.2005 the accused/appellants went to the house of the deceased, took him alongwith them on pretext of loading coal near a brook committed his murder by causing injuries on his stomach. At the relevant time, PW-6 Munna Das, father of the deceased, was present near the said brook as he had gone there to ease himseif and upon hearing the cries of his son "Bachao, Bachao", he rushed back to his house and after informing about the same to his another son Raju Das s his neighbour Viison Xalxo returned to the spot along with them.
On reaching the spot, they found both appellants standing there.
Further case of the prosecution is that when Raju Das enquired from appellant No.1 Ajay as what he doing there, both accused/appellants ran away from the spot.
Injured Suresh Das was lifted by villagers taken hospital where he was declared brought dead.
information about death was sent by Dr.
RC Bavariya (PW-1) at his instance merg intimation Ex.P/1A was recorded on 13.1.2005 at 13:25 hours.
After merg intimation, FIR (Ex.P/8) was registered against appellants on 14.1.2005 under Section 302/34 of IPC.
inquest over the dead body was performed l Vide Ex.P/2 and thereafter the body was sent for postmortem, which ;
was conducted on 14.1.2005 by PW-4 Dr. AK Agrawal Vide [Ex.P/4 wherein he did not notice any external injury on body deceased and according to him the cause of death was shock due to intra-abdominal hemorrhage resulting fromlaceration of liver and death was homicidal nature.
After completion investigation, charge sheet was filed against the accused/appellants under Section 302/34 of IPC and accordingly, charge was framed.
03.
So as hold accused/appellants guilty, prosecution examined as many as 13 witnesses.
Statement of the accused were also recorded under Section 313 of Cr,P.C.
in which they denied the circumstances appearing against them prosecution case, pleaded innocence and false implication.
O4. The trial Court after hearing counsel for the respective parties and considering material available on record, by impugned judgment convicted sentenced appellants as mentioned i;as para-1 of this judgment.
05, Learned counsel for the appellants submits as under: (i) that the accused/appellants have been falsely implicated merely on the basis of suspicion.
(ii) that the appellants have been convicted on the basis of evidence of last seen by PW-5 Raju Das and PW-6 Munna Das but considering the fact that these witnesses are relative of the deceased, it would not be safe for this Court to act upon their evidence. This apart, evidence of last seen being a weak type of evidence can not be made the basis conviction until unless there some other corroborative evidence against the accused.
(iii) that as per postmortem report, there was no external injury on the person of the deceased and thus even admitting the case of the prosecution as it that appellants caused some injuries on stomach of the deceased, at best they are liable to be convicted under Section 323 or 325 of IPC.
(iv) that the appellants have already remained jail for about two years and seven months and therefore, after converting their conviction
either into Section 323 or 325 of IPC, their sentence may be reduced to the period already suffered by them.
O6. On the other hand, supporting the impugned judgment it has been argued by the State counsel that conviction of the accused/appellants is strictiy in accordance with iaw and there is no illegality or infirmity in it warranting interference by this Court.
07. Heard counsel for the respective parties and perused the material on record.
tea 08.
PW-1 Dr.
RC Bavariya gave information about death police vide Ex.P/1.
PW-2 Jonson Kujur a witness inquest Ex.P/2 seizure certain articles from place occurrence EXP/3. PW-3 Rajkumar is also a witness to inquest Ex.P/2. PW-4 Dr.
AK Agrawal conducted postmortem on body deceased on 14.1.2005 vide Ex.P/4 and noticed no external injury on person deceased.
However, on internal examination he noticed blood the stomach, rupture of liver and his opinion, cause of death was shock due to intra-abdominal hemorrhage resulting from laceration of liver and the death was homicidal in nature. 09.
PW-5 Rajudas, brother deceased, has stated that accused persons were having friendship with his brother/deceased and therefore, he knows them. On 13.1.2005 at about 10-11 pm when he was his house, his father called him and informed that someone beating the deceased whereupon he immediately rushed to the spot along his father one Vilson where they found accused/appellant standing there and the deceased lying in the brook.
ax
@ When he enquired from accused/appellant Ajay as to what he is doing there, the other accused/appellant Kishun asked Ajay to run away and thereafter, both appellant ran away from there towards jungle.
Though he chased them but could not catch them.
Thereafter, he returned to the spot and took the deceased to hospital where he was declared brought dead.
He has further stated that about 10-15 days prior to the incident, brother of appellant Kishun had teased his niece, y on which the deceased beat brother of Kishun and on account of this animosity accused persons killed his brother.
He admits that number of persons pass through the place of occurrence. 10.
PW-6 Munna Das, father of the deceased, has stated that at about 5-6 pm the deceased left his house and at about 1O pm he went towards the brook to attend the call of nature where he heard the cries of his son/deceased for help and then rushed back to his house and returned to the spot along with his son Raju Das and one Vilson. On reaching the spot, he first saw accused/appellant Ajay standing there and other accused Kishun was seen standing 5-6 ft away from there.
When his son Raju asked appellant Ajay as to what he is doing there, other appellant Kishun asked Ajay run away from there thereafter, both accused persons fled from there.
Though they were chased but could not be caught.
He help other villagers took the deceased to hospital but bylthat time he had expired. 11.
PW-7 lrfan Khan has stated that at about 9 pm Raju Das came to his shop and asked for battery of torch and when he enquired from his as to why he in a hurry, he replied that somebody is beating his brother near the brook and he has to go there.
He states that after
about 8-10 days he came to know that it is the accused/appellants who have been arrested connection murder deceased.
However, subsequently this witness has been declared hostile. 12.
PW-8 Vilson Xaixo has stated that at about 10 pm he was in the house Raju Das when father Munna Das came there and informed them that someone is beating the deceased near brook, on which Raju Das he went with Munna Das to the brook found appeiiants there.
However, after seeing them coming both the appellants fled from there.
Thereafter, they took the deceased to hospital where he was declared dead. 13.
PW-Q Santosh Kumar and PW-10 Rajesh Lakda reached place of occurrence after the incident had taken place. PW-11 Shahid is a hearsay witness. PW-12 Vimal Das has stated that just before the incident at around 9-9.15 pm he met the accused persons who were enquiring about the deceased and thereafter at around 1040.30 pm he came to know that the deceased was taken from the brook to hospital where he was declared dead.
PW-13 Laxmikant Gayakwad, investigating officer, has supported the prosecution case. 14.
Close scrutiny of the evidence makes it clear that on 13.1.2005 accused/appellant took along them near the brook and caused injuries on his stomach which resulted in his death.
As per PW-5 Munna Das, father of the deceased, who at the relevant time was present near spot attend call nature, after hearing the cries of his son for help went to his house and came back his son Raju Das (PW-5) and neighbour Vilson Xalxo (PW-8) to i i s y ,g m WWmw-(a.
.
k iM W
spot they all saw appeHants standing near brook.
When Raju Das asked Ajay as to what he doing there, other appellant Kishun asked Ajay to run away from there and then both of them ran away towards the jungte. Though the appetlants were chased but could not be caught.
Thereafter, was taken hospital where he was declared brought dead. Similar is the statement PW~5 Raju Das.
Their version finds due corroboration from ~ evidence independent witness PW-8 Vilson Xalxo.
Defence has utterly failed elicit anything from these witnesses render their testimony untrustworthy or doubtful.
It has also come in the evidence that accused/appellants were having animosity against deceased. This apart, according to the autopsy surgeon, the death was homicidal in nature and he has categorically denied the suggestion that death of the deceased may be the result of rupture of liver due to fall on hard surface. Thus on the basis of above evidence complicity of the accused/appellants commission offence stands proved beyond all reasonable doubt.
15.
Now next question which arises for consideration this Court is whether the act of the accused/appellants makes them liable for conviction under Section 302/34 of IPC or for any other offence? 16.
Section IPC defines culpable homicide.
lt says that whoever causes death by doing an act with the intention of causing death, or intention of causing such bodily injury as likely cause death, or with knowledge that he likely by such act to cause death, commits offence culpable homicide.
The culpable homicide would be murder, if the act by which the death is caused
done with intention of causing death or when Ciauses Secondly, Third/y or Forth/y of Section 300 are attracted. However, the cuipabie homicide would not amount to murder, if the act done false in either of Exceptions mentioned in Section 300, for which the accused would be liabie for punishment under Section 304 of IPC. Therefore, 'intention' or 'knowledge' are the two important eiements to bring an act within the ambit of any part of Section 304 of IPC.
x 17.
Intention denotes that a particuiar consequence shouid ensure, however, knowledge of consequence which may resuit in doing of an act quite different than intention.
The intention a factor which attracts first part Section IPC knowledge attracts its second part.
The intention is a purposefui doing of a thing to ensure a particuiar resuit, whereas knowiedge an awareness which attributes to be well informed that a particular result may happen by doing a thing.
18.
in the matter of Thomas Vs; State of Kerala, 1992 Cr.L.J.581 (Krl.)(DB), it was held that "in order to constitute an offence of culpable homicide, a person has cause death by doing an act intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. Culpable homicide is the genus, of which murder species.
The word "likely'Kimeans probably it distinguished from here "possibly". When chances of happening are even or greater than its not happening, it can be said that the thing will "probably happen".
ln reaching the conclusion, the Court has to place itself situation accused then judge whether
accused had knowledge that by act he was likely cause death."
19.
ln Abdul Waheed Khan alias Waheed and others Vs. State of A.P. (2002) 7 SCC 175, the Supreme Court vlde para-11 observed that "in the scheme of IPC culpable homicide is the genus and "murder"
its species.
All "murder"
"culpable homicide"
but not vice versa.
Speaking generally, "culpable homjcide" sans "special characteristics murder culpable homicide not amounting murder".
For purpose fixing punishment, proportionate gravity generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree".
This is the greatest form of culpable homicide, which defined Section as "murder".
The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree".
This lowest type culpable homicide punishment provided for it is also the lowest among the punishments provided for three grades.
Culpable homicide this degree punishable under the second part of Section 304." 20.
In case hand, as already discussed above, though accused/appellants beat the deceased on account of there being some previous animosity which resulted his dea'th', but at the same time it is also evident that no weapon was used by them and that they did not inflict any injury on the vital part of the deceased. From the facts and circumstances of the case, it appears that the appellants had neither intention to cause death of the nor had knowledge
causing such bodily injury which may result his death. Thus, keeping in view the facts and circumstances of the case, manner which incident occurred, light above provisions of law and the judicial pronouncements, this Court is of the considered opinion that the trial Court was notjustified in convicting the appellants under Section 302/34 of IPC and they can, at best, be held guilty under Section 325/34 of IPC for voluntarily causing grievous hurt y to the deceased.
3i 5!
21.
As regards the sentence, considering the fact that the incident .I occurred more than a decade ago, appellants have already remained in jail for about two years and seven months; they are on bail since 2007, we are of the opinion that ends of justice would meet if they are sentenced under Section 325/34 of IPC to the period already undergone by them.
22.
ln result, appeal alloWed part.
While acquitting appellants of the charge under Section 302/34 of IPC, they are hetd guilty under Section 325/34 of IPC and sentenced to the period already suffered by them. They are reported to be on bail, therefore, their bail bonds stand discharged and they need not surrender. Sd/- E, a Sd/- '
(Pritinker Diwaker) v (R.C.S. §amant) Judge Judge Khan ;» x *Wawgm , ;, agw