Chhunu @ Chhunnu Nagesiya vs State Of Chhattisgarh

Arvind Singh Chandel, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 18.03.2015 passed in Sessions Trial No.89/2014 by the 2nd Additional Sessions Judge, Surguja, Ambikapur, by which, the appellant stands convicted & sentenced as under:-

Conviction

Sentence

Under Section 302 of Indian Penal Code

Imprisonment for life with fine of Rs.1000/- and in default to pay fine amount, he shall suffer additional imprisonment for 1 year.

In this case, name of the deceased is Smt. Sindhu @ Sindu Kumhar, who was the wife of the appellant.

According to the case of the prosecution, on 17.01.2014, on the occasion of festival, namely, Chherta, wife of the appellant – Sindhu @ Sindu Kumhar had prepared mutton curry. When the mutton curry prepared by his wife became insufficient, at around 8.00 pm, a dispute ensued between the appellant and the deceased. This dispute was informed by Ambikesh, son of the appellant, to neighbours Babulal Nagesiya (P.W.1) and his wife Sunita Bai (P.W.2). When Babulal Nagesiya, on receipt of such information, reached to the spot along with his wife Sunita Bai (P.W.2), at that time also the appellant assaulted his wife Sindhu. Thereafter, Babulal and his wife returned to their house. On morning of 18.01.2014, Sunita Bai (P.W.2), wife of Babulal (P.W.1) went to the house of the deceased and found that deceased was lying dead in her house and appellant was also present there, the deceased sustained various injuries on her body and blood was oozing. P.W.2 Sunita Bai informed the same to her husband Babulal Nagesiya, who also went to the house of the appellant and saw Sindhu in dead condition. Babulal (P.W.1) lodged the report in the concerned Police Station, on the basis of which, F.I.R. was registered vide Ex.P.1. Merg intimation was also recorded vide Ex.P.2. Inquest proceedings was initiated vide Ex.P.7. Dead body of Sindhu was sent for post-mortem examination to Primary Health Center, Darima, where Dr. Jeneshwar Singh (P.W.12) conducted the post-mortem examination, who gave post-mortem report vide Ex.P.11, according to which, death of deceased was haemorrhagic shock due to rupture of left lobe of lung with multiple injuries and death was homicidal in nature. During course of investigation, on the basis of memorandum statement of the appellant recorded under Section 27 of the Evidence Act (Ex.P.04), one piece of wooden stick and one piece of brick were seized from the appellant vide Ex.P.5.

Statements of witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, charge-sheet under Section 302 of IPC was filed against the appellant before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

In order to bring home the offence, prosecution has examined as many as 17 witnesses and brought on record 21 documents. In the statement recorded under Section 313 of Cr.P.C., the appellant denied his guilt and pleaded his innocence and false implication, however, one Defence Witness Jugul Kishor was has been examined by the appellant as D.W.1.

After completion of trial, the learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above. Hence, this appeal.

Learned counsel for the appellant would submit that without sufficient evidence available on record, the learned trial Court has wrongly convicted the appellant. It is argued by him that the conviction of the appellant is based on circumstantial evidence only. The prosecution has not been able to build up the chain of circumstantial evidence so complete which excludes all other hypothesis of guilt of any other person and points out to the guilt of the appellant alone. Therefore, conviction of the appellant is not sustainable. Alternatively, it is argued by him that if the alleged offence has been committed by the appellant is taken into consideration and while considering the offence occurred on sudden heat of passion, then at the most, case of the appellant would fall within Exception 4 to Section 300 of I.P.C. and, therefore, his conviction under Section 302 of I.P.C. be altered to either Part-I or Part-II of Section 304 of I.P.C. Thus, the present appeal deserves to be allowed in full or in part.

Per contra, learned State counsel would support the impugned judgment and submit that undisputedly the dead body of the deceased was found in the house of the appellant and that the appellant has not offered any explanation in his statement recorded under Section 313 of the Cr.P.C., therefore, the trial Court has rightly convicted the appellant and conviction of the appellant cannot be converted to either Part-I or Part-II of Section 304 of IPC, therefore, the instant appeal deserves to be dismissed.

We have heard learned counsel for both the parties, perused the entire evidence, both oral and documentary and gone through the material available on record.

The first question that falls for our consideration would be, whether the death of the deceased was homicidal in nature? The learned trial Court, on the basis of statement of Dr. Jeneshwar Singh (P.W.12) and on the strength of post-mortem report (Ex.P.11), arrived at a conclusion that the nature of death of deceased was homicidal and the deceased was done to death due to haemorrhagic shock and multiple injuries sustained by the deceased. The above finding recorded by the learned trial Court is based on both the statement of Dr.Jeneshwar Singh (P.W.12) and post-mortem report (Ex.P.11), which is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, further question would be, whether the appellant was the person who committed the above homicidal death of his wife, namely, Sindhu?

Undisputedly, there is no eye-witness to the incident in this case. Case of the prosecution is based upon circumstantial evidence only. P.W.1 Babulal is the neighbour of the appellant. In his statement, Babulal has deposed that on the date of incident at 07-08.00 pm, the appellant was assaulting his wife, who was inside the house, at that time, he reached there and made him understand, thereafter he returned to his house. He has further deposed that on the next morning, it was informed by his wife Sunita Bai (P.W.2) that Sindhu Bai was lying dead in her house. P.W.2 Sunita Bai, wife of Babulal (P.W.1), in her statement, has deposed that on the next day of morning at 7 am, she went to the house of deceased and saw Sindhu Bai lying dead in her house and at that time appellant was also present there. However, statement of P.W.2 Sunita Bai is not duly corroborated during her cross-examination. Thus, from the statements of P.W.1 Babulal and P.W.2 Sunita Bai, it is well established that on the date of incident at 07-08.00 pm, a dispute took place between the appellant and deceased on account of insufficient food prepared by the deceased and the appellant assaulted the deceased, which was seen by P.W.1 Babulal. It is also established that on the next morning, P.W.2 Sunita Bai went to the house of deceased, it was seen by her that deceased was lying dead in her house and that, the appellant was also present and he did not offer any explanation. In his statement recorded under Section 313 of Cr.P.C. also the appellant admitted the fact in question No.2 that on the date of incident, i.e., on 17.01.2014, he and his wife were present in their house, thereafter, in question No.5, he also admitted the fact that on the next day morning, when Sunita Bai and his husband Babulal went to his house, the deceased was found dead inside the house. The deceased was the wife of the appellant and was found dead inside the house, therefore, the burden was upon the appellant to explain as to how and on what circumstances, the deceased Sindhu was found lying dead inside the house. The appellant has not offered any explanation in this regard in his statement recorded under Section 313 of Cr.P.C. If the entire evidence adduced by the prosecution is taken as it is, in our considered opinion that the appellant, who was present at the time incident, committed homicidal death of his wife Sindhu.

Even the material available on record also shows that the appellant and the deceased were residing in a common house and there was no enmity between them and on the date of incident, on account of insufficient food prepared by his wife and on a sudden quarrel took place, the alleged incident was done by the appellant, therefore, in our considered opinion that the act committed by the appellant falls within ambit of Exception 4 to Section 300 IPC, therefore, we alter the conviction of the appellant for offence punishable under Section 304 Part-I of IPC and he is sentenced to R.I. for 10 years. The appellant is in jail since 19.01.2014. He would be set at liberty after serving remaining jail sentence.

In the result, the criminal appeal is partly allowed to the extent indicated herein-above.