Dineshwar Patel v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 623 of 2012 • Dineshwar Patel S/o Janakram Patel Aged About 25 Years R/o Villge Singarpur , P.S. Kotwali, Kawardha, Distt. Kabirdham --- Appellant

Versus

• State of Chhattisgarh S/o Through - P.S. Kawardha, Distt. Kabirdham C.G. --- Respondent For the Appellant : Mr. J.K. Gupta,, Advocate.

For the State : Mr. Sangharsh Pandey, Dy. Govt. Adv.

D.B. Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Sanjay S. Agrawal, JJ Judgment on Board .10.2017 Per Goutam Bhaturi, J

1. This appeal is against the Judgment/order dated 26th May, 2012 passed by the Court of Sessions Judge, Kabirdham (Kawardha), Chhattisgarh, in Sessions Trial No. 39/2011 whereby the appellant was convicted under sections 449 and 302 of IPC and sentenced as under :

U/s 449 of IPC :

R.I., for 3 years and fine of Rs.500/-, in default of payment of fine, to further undergo R.I., 3 months U/s 302 of IPC :

Life imprisonment with fine of Rs.500/- in default of payment of fine to further undergo R.I., for 3 months

2. The prosecution story in brief is that in the intervening night of 11th & 12th of May, 2011 deceased Janak Ram was sleeping with his grand son in his house in the court yard. The door of the courtyard was locked. At about 12.15 in the night after hearing some noise Sukwaro Bai got up and saw one person was running away from the house. Thereafter, she saw that blood was oozing out from head of her husband. Thereafter, he became unconscious. The deceased Janak in the state of Coma was taken to the District Hospital wherein the Dehati Nalishi Ex.P-14 was recorded. Injured Janakram was examined by Dr.Santosh lunia. On examination, it was further revealed that below the abdomen i.e., near the private part and over the head, injuries were also present. Thereafter the Doctor referred him to a wellequipped Hospital of Raipur on 12.05.2011.

During the enquiry, the appellant accused came out with his memorandum and it was revealed that the hammer which was used for causing the injury was kept in a bag which was recovered at the instance of the appellant. Injured Janak was hospitalized and eventually on 20.05.2011, he succumbed to the injuries caused on his head and private parts. Thereafter, the merg intimation was registered. After the postmortem, it was revealed that the cause of death was due to head injury and septicemia and during the investigation, the hammer was sent for query report and the expert advised that the said injury could have been caused by hammer.

eliminated, as such, his name was not given in the FIR. However, subsequently, the statement was recorded, the name of appellant was disclosed and the police after investigation filed the charge sheet.

3. During the trial, the charges were framed u/ss 449 & 302 of IPC and the appellant abjured the guilt and claimed to be tried. In order to prove the guilt of accused, the prosecution has examined as many as 8 witnesses on its behalf. The trial Court after evaluating the entire evidence on record convicted and sentenced the appellant as aforesaid. Hence this appeal.

4. Learned counsel for the appellant would submit that the name of appellant was not disclosed in the FIR and subsequently it was disclosed in the statement and there is no reason as to why initially his name was not given in the FIR. It is further contended that the alleged eye-witness Sukwaro Bai (P.W.1) is the step-mother of the appellant as such she attributed false allegations to the appellant. It is further stated that there is no explanation to the fact that the doors were locked from inside the room wherein the deceased was attacked and it is also not clear that how it has been done. It is further submitted that the FSL report has been placed on record but there is no proof of fact that the blood which was found on the hammer was the origin of human blood, consequently, the benefit of doubt should have been given to the accused.

5. Per contra, learned State Counsel opposes the arguments and submits that the judgment/order passed by the Court below is well merited which do not call for any interference.

6. Perused the judgment and record of the Court below. The Dehati Nalishi (Ex.P-14) was lodged on 12.05.2011 at about 4.15 a.m., by Sukwaro Bai (P.W.1). She has stated that on 11.05.2011 they had slept in the house and the door was closed and at about 12.15 a.m., She got up on hearing the noise and saw that one unknown person was running out from her house. Thereafter, when she went to her husband, she saw the blood was oozing out from his head and he was given water and thereafter he lost his consciousness. It was stated that some unknown person came inside the house and gave a blow on the head of her husband as also on the private part, therefore, the report was made. Before the Court, Sukwaro Bai was examined as P.W.

1 wherein she has stated that that appellant accused is their son and on the date of incident at about 12 o' clock she got up on hearing the noise of assault and after getting up, she saw that appellant was giving blow by way of hammer on the head of her husband, the deceased. When she shouted, her son fled away from the house. She further stated that just before a day of incident, the appellant came to the house of her uncle Manak Ram and stayed there. She further disclosed the name of the appellant to the police subsequently. In the cross examination she stated to have identified the appellant denying the suggestion of the fact that it was totally dark. With respect to cross examination about the unknown person, it is stated that she had identified her son who had given the blow.

7. Manak Ram Patel in whose house the appellant is said to have stayed before a day of incident, is examined as P.W.2.

He stated that in the mid-night one Bharat came and stated that some one has killed Janak and he is unconscious. Thereafter, he went to the house of Janak wherein her sisterin-law (Bhabhi) i.e., P.W.1 disclosed that Dileshwar has killed.

8. In the FIR P.W.1 Sukwaro Bai who was maker of FIR and Dehati Nalishi has not disclosed the name of appellant. When we refer to the statement of Sukwaro Bai u/s 161 of Cr.P.C., which was recorded on 27.5.2011 she has assigned the reason and gave explanation for non-disclosure of name. It is stated that after the incident when the deceased was brought to the hospital and when she was alone there, the appellant had given a threat to her that if his name is disclosed to the police she would also be eliminated, therefore, the name of Dileshwar was not disclosed to the Police in the initial report.

9. The initial examination of the deceased was made by Dr. Santosh Lunia (P.W.5). The MLC of initial examination is Ex.P-7 wherein the lacerated wound at pubic region of 2 x 1 cm was reported and lacerated would on left parietal region of scull of 3" x 4" was found and the brain matter was also found to have come out and the patient was reported to be unconscious. The said MLC was conducted at about 4 a.m., on 12.05.2011. The Dehati Nalishi (Ex.14) was recorded at 4.15 p.m., that is after the MLC was conducted. Therefore, taking into such the difference of time, the explanation given by P.W.1 Sukwaro Bai can be assumed to be correct wherein she stated that while the deceased was being treated initially in the first hospital the appellant had given threat that if his

name is disclosed, she would also be eliminated. Therefore, if the statement of P.W.1 is accepted wherein she has disclosed the name of appellant that he had given the blow to the deceased in her statement u/s 161 as also before the Court, the non-disclosure of the name in Dehati Nalishi Ex.P14 and consequently the FIR, cannot be held to be fatal to the prosecution in view of the explanation given and the impact on the case of prosecution would not be diluted. It is trite law that the FIR is not the encyclopedia of the entire case and when non-disclosure of the name is weighed taking into other circumstances which is disclosed by P.W.1 who is an eye-witness that due to threat given by the appellant, his name was not disclosed, the same explanation appears to be probable in nature.

10.

Perusal of the record would further show that on 12.05.2011, the memorandum of the appellant was recorded. Therefore, the time of recording of the memorandum was at 11.45 a.m. Thereafter vide Ex.P4, the hammer was recovered from the house of Manak Ram Patel (P.W.2). The said hammer was also containing the blood of deceased. Apart from the hammer, a full pant which contains blood stains was also recovered. The seizure witnesses P.W.3 Lala Ram and P.W. 6 Vishram have supported the memorandum and the seizure. After the seizure of hammer, the same was subject to query qua the injury caused. P.W.5 Dr. Santosh Luniya has given his query report vide Ex.P-9 wherein it is stated that the injury so caused to the deceased on the head can be caused by the hammer so seized. The seized Articles were further sent for FSL by the prosecution. The hammer was marked as

E and full pant was marked as F-1 and one more cloth was marked as F-2. As per the FSL report dated 12.12.2011 on the hammer and full pant, the presence of blood was confirmed. The said report was given by the State FSL i.e., Govt. Scientific Expert and there is no explanation to the fact by the accused appellant in his statement u/s 313 about the presence of blood. Consequently the same can be accepted in view of section 293 of Cr.P.C., and can be relied upon by the prosecution.

11.

The postmortem report in this case is marked as Ex.P-8. P.W.5 Dr. Santosh Luniya had conducted the postmortem and according to him, the cause of death was shock due to head injury and septicemia. The injuries have also been described by the doctor. In his initial report Ex.P-7, he stated that all the injuries were ante-mortem in nature. Therefore, taking into the statement of the witnesses, the prosecution was able to prove the fact that the appellant has caused death by inflicting blows of hammer on the head of Janak Ram and the motive has been attributed that the appellant was demanding the partition of land and has seen his wife in compromising position with the deceased. Therefore, there is no reason to disregard the statement of eye-witness P.W.1 Sukwaro Bai.

12.

Taking into the totality of the facts and circumstances of the case and after going through the evidence on record, we are of the opinion that the trial Court came to a definite finding as to commission of crime and we do not find any merit in the appeal warranting interference by this Court. 13.

In the result, the appeal fails and is dismissed. It is stated

that the appellant is in jail. He shall undergo the remaining jail sentence.

Sd/- Sd/- GOUTAM BHADURI SANJAY AGRAWAL JUDGE JUDGE R a o