Appeal against the judgment of High court whereby convicting the appellant for section 302 IPC
5. The instant appeal is directed against the judgment and order dated 27th June, 2016 passed by the High Court of Chhattisgarh, Bilaspur in Criminal Appeal No. 712 of 2003 whereby the appeal preferred by the appellant was rejected and judgment and order dated 30th October, 2001 rendered by the Court of Third Additional Sessions Judge, Ambikapur, Sarguja(C.G.), in Special Sessions Case No. 359/99, convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860(hereinafter being referred to as the ‘IPC’) and sentencing him to imprisonment for life, was affirmed.
Facts of the case
6. As per the prosecution case, deceased Dasmet Bai was living with the appellant as his second wife. It is alleged that on 11th September, 1999 at about 2.00 p.m., the appellant assaulted Dasmet Bai by fists and stones and thereby, caused her death. Budhram(PW-2), the uncle of the deceased Dasmet Bai lodged a report of the incident at the Kusmi Police Station on the very same day, at about 5.20 p.m., on the basis of which an FIR(Exhibit P-6) being Crime No. 61/99 came to be registered against the appellant for the offence punishable under Section 302 IPC. The usual process of investigation was started. Inquest was conducted on the dead body and thereafter, the same was sent for post mortem. Dr. R.K. Tripathi(PW-11) conducted autopsy upon the dead body of Dasmet Bai and issued the post mortem report(Exhibit P-24) taking note of a bruise admeasuring 10 cm X 8 cm on the posterio lateral aspect of left side of the body over 5th to 10th ribs area. The 8th rib was found fractured underneath this injury which led to laceration of spleen causing hypovolemic shock and proved fatal.
Trial and conviction
7. Charge sheet was filed against the appellant after conclusion of investigation and the case upon committal was sent to the Court of Third Additional Sessions Judge, Ambikapur, Sarguja on transfer. The accused was charged for the offence punishable under Section 302 IPC to which he pleaded not guilty and claimed trial. Eleven witnesses were examined and relevant documents were exhibited by the prosecution to bring home the guilt of the accused. The statement of the accused appellant was recorded under Section 313 of Code of Criminal Procedure, 1973 wherein he denied the circumstances as appearing against him in the prosecution case and claimed to be innocent. However, no evidence was led in defence.
Conviction for section 302 IPC
8. As stated above, the trial Court convicted and sentenced the appellant as above and the appeal preferred against conviction was rejected by the High Court vide judgment dated 27th June, 2016, which is assailed in the present appeal.
Hon’ble Supreme court issued limited notice as to the reduction of sentence
9. Vide order dated 21st July, 2023 this Court issued limited notice to examine whether the conviction of the accused under Section 302 IPC could be converted either to Part I or Part II of Section 304 IPC.
By going through P.W-2 statement it is apparent the appellant had no motive to hurt the deceased
14. Admittedly, the appellant and the deceased were living together as husband and wife by virtue of prevailing customary practices. From a perusal of the statements of the eye-witnesses(PW-4, PW-5 and PW-6), it is evident that the accused appellant was seen chasing Dasmet Bai(deceased), said to be his second wife. However, the genesis behind the incident was not divulged by any of the prosecution witnesses. The first information report(Exhibit P-6) was lodged by Budhram(PW-2), the uncle of deceased Dasmet Bai. He did not utter a single word in his evidence that his niece who was living with the appellant was ever treated with cruelty by the accused. It was admitted by the witness in cross examination that both the accused as well as Dasmet Bai(deceased) used to consume liquor. It is thus, apparent that the appellant had no motive to hurt the deceased and some sudden quarrel had flared up between the accused and Dasmet Bai(deceased) which led to the incident.
Deceased sustained injuries due to fall on the ground
16. Lalo Bai(PW-6) admitted in her cross examination that Dasmet Bai(deceased) fell on the road with boulders and sustained injuries due to the fall on the ground.
The accused can be attributed to the knowledge of injury on the deceased would cause death
19. The accused can at best be attributed with the knowledge that the injury of the nature which he inflicted upon Dasmet Bai(deceased) was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Thus, the act of the accused is covered under Part II of Section 304 IPC which is extracted hereinbelow for ready reference:-
“304. Punishment for culpable homicide not amounting to murder.—
…..or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
(emphasis supplied)
The doctor did not express an opinion that the single injury caused death in the ordinary course of nature
20. It may also be noted that Dr. R.K. Tripathi, Medical Jurist(PW-11) did not express opinion that the single injury caused to the deceased was sufficient to cause death in the ordinary course of nature. 21. Hence, we are of the opinion that the conviction of the accused as recorded by the trial Court and affirmed by the High Court for offence under Section 302 IPC is unsustainable in facts as well as in law.
Sentence reduced to the incarceration period already undergone
22. Thus, the conviction of appellant herein for the offence punishable under Section 302 IPC is modified and altered to that under Part II of Section 304 IPC. The appellant is directed to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304, Part II of IPC.
23. As the appellant has already undergone sentence for about 17 years, we do not propose to impose any fine upon him. The appellant is in custody and shall be released forthwith, if his detention is not required in any other case.
Party
KARIMAN …..APPELLANT(S) VERSUS STATE OF CHHATISGARH …RESPONDENT(S) – CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Criminal) No(s). of 2024) (Diary No. 24868/2023) – April 22, 2024 – 2024 INSC 335
