Fransis Tirkey vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC filed by the appellant herein is directed against the impugned judgment of conviction and order of sentence dated 30-7-2013 passed by the Additional Sessions Judge, Katghora, in Sessions Trial No.33/2012, by which the appellant has been convicted under Sections 302 & 429 of the IPC and sentenced to undergo imprisonment for life & pay fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months and to undergo rigorous imprisonment for two years & pay fine of Rs. 500/-, in default of payment of fine to further undergo additional rigorous imprisonment for three months, respectively.

Case of the prosecution, in brief, is that on 1-1-2012, the appellant herein after committing the murder of his mother and two animals, in the same transaction, also caused the death of one Nanhi Ram and also caused death of animals belonging to Amit Uraon & Fagni Bai. The police party reached to the spot and panchnama was conducted. Dead body of Nanhi Ram was sent for postmortem. Postmortem was conducted by Dr. Naresh Chand Dewangan (PW-13) who submitted his postmortem report Ex.P-13 in which cause of death was stated to be haemorrhagic shock due to injury to vital organ (brain) and death was homicidal in nature.

Statements of the witnesses were recorded under Section 161 of the CrPC.. After completion of investigation, charge-sheet was filed against the appellant before the Court of Judicial Magistrate First Class, Katghora and the case was committed to the Court of Sessions, Korba from where the learned Additional Sessions Judge, Katghora, received the case on transfer for trial and for hearing and disposal in accordance with law.

The trial Court has framed charges against the appellant for offence punishable under Sections 302 & 429 of the IPC and proceeded on trial. The appellant abjured guilt and entered into defence stating that he has not committed the offence and he has been falsely implicated.

The prosecution in order to bring home the offence examined as many as 16 witnesses and exhibited 27 documents Exhibits P-1 to P-27. Defence has examined none and exhibited no document. Statement of the appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence.

The trial Court after full-fledged trial, convicted the appellant finding him guilty of the offence under Sections 302 & 429 of the IPC in the manner mentioned in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him calling in question the impugned judgment.

Mr. Bharat Rajput, learned counsel appearing for the appellant, would submit that the prosecution has failed to bring home the offences against the appellant beyond reasonable doubt and therefore conviction and sentences imposed upon the appellant deserve to be set aside. He would further submit that the appellant was of unsound mind and he has committed the offence in insanity, as such, he is entitled to be acquitted. Therefore, the appeal be allowed.

Mr. Sudeep Verma, learned Deputy Government Advocate appearing on behalf of the State / respondent, would support the impugned judgment and would submit that in view of the testimonies of eyewitnesses Smt. Sushila Bai (PW-8) and Fuleshwari (PW-10), the appeal deserves to be dismissed. The appellant has failed to take any defence that he was a person of unsound mind during the course of trial, therefore, he is not entitled for the benefit of Section 84 of the IPC, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

The first question whether the death of deceased Nanhi Ram was homicidal in nature has been answered by the trial Court in affirmative holding that the death of the deceased was homicidal in nature relying upon the postmortem report Ex.P-13 proved by Dr. Naresh Chand Dewangan (PW-13), which is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question is, whether the appellant is the author of the crime?

The prosecution has relied upon eyewitnesses Smt. Sushila Bai (PW-8) and Fuleshwari (PW-10) and the trial Court has convicted the appellant on the basis of the evidence of these witnesses. However, Smt. Sushila Bai (PW-8) – daughter-in-law of deceased Nanhi Ram, has stated in her cross-examination that she has not seen the incident and she has also admitted the appellant was insane and his mental condition was not good. Fuleshwari (PW-10) – grand-daughter of deceased Nanhi Ram, has also refuted the fact that she has seen the incident, she went inside the house after noticing the appellant armed with axe. Though pursuant to memorandum statement, bloodstained axe has been seized and the same was sent for chemical analysis to the FSL, but no FSL report has been brought on record to connect the appellant with the offence in question. As such, there is no legally admissible evidence to connect the appellant with the offence and it has not been established that the appellant has committed the murder of Nanhi Ram.

In view of the finding recorded in Cr.A.No.818/2013, it has been established that on the date of incident and presently, the appellant is insane and a person of unsound mind, therefore, though the impugned judgment is hereby set aside and the appellant is acquitted of the charges under Sections 302 & 429 of the IPC, and respondent – State is directed that appellant be lodged in mental Hospital, Sendri, Bilaspur. As such, the other direction issued in Cr.A.No.818/2013 would be mutatis mutandis applicable to the instant criminal appeal also and the instant criminal appeal is accordingly disposed of.