Mannu Ram Kashyap vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order dated 20-9-2013 passed by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.118/2012, by which the appellant herein has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 1,000/-.

Case of the prosecution, in brief, is that on 19-7-2012 at 11.00 p.m., the appellant asked for food from his wife Budhwari Bai which she did not serve pursuant to which after a dispute, the appellant assaulted her by a sharp-edged axe on her neck by which she suffered two injuries and died. Thereafter, morgue intimation was recorded vide Ex.P-7 purusant to which first information report (FIR) was registered vide Ex.P-8. After panchnama, dead body was subjected to postmortem which was conducted by Dr. D. Rajan (PW-6) vide postmortem report Ex.P-9 in which cause of death was stated to be due to haemorrhage due to injury on neck. Pursuant to the information given by the appellant, axe was seized and it was sent for chemical analysis to the Forensic Science Laboratory, but the FSL report was not brought on record. Query report Ex.P-10 was obtained from Dr. D. Rajan (PW-6) in which it has been stated that the injuries found on the body of the deceased could have been caused by the said axe.

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 jurisdictional criminal court and the case was committed to the Court of Sessions for trial and for hearing and disposal in accordance with law.

The trial Court has framed charge against the appellant for offence punishable under Section 302 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 11 witnesses and exhibited 19 documents Exhibits P-1 to P-19. No witness has been examined on behalf of the defence and no document has been exhibited. 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 completion of trial and after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant 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.

Mrs. Tanya, learned counsel appearing for the appellant, would submit that the appellant has not committed any offence and he has been falsely implicated, there is no direct or circumstantial evidence to prove the offence beyond reasonable doubt and therefore conviction of the appellant is liable to be set aside and the appeal deserves to be allowed by acquitting the appellant of the charge levelled against him.

Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and would submit that the prosecution has been able to bring home the offence against the appellant and the trial Court has rightly convicted the appellant and therefore conviction cannot be competently questioned by the appellant herein and 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 as to whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative relying upon the statement of Dr. D. Rajan (PW-6) proved by his postmortem report Ex.P-9 holding the death of the deceased to be homicidal in nature, 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, whether the appellant is the author of the crime as held by the trial Court, is the next question.

Ku. Phoolbati (PW-10) is the daughter of the deceased who was staying with her father & mother on the date of incident, but she has not supported the case of the prosecution. According to her, it is her father i.e. the appellant herein and Kartik (PW-4) – grandfather, who informed her that her mother has been killed by some one else. Similar statement has been made by Ku. Basanti (PW-11) – another daughter of the deceased and the appellant. As such, both the witnesses could have stated about the actual incident if they could have seen the incident, but they have not supported the case of the prosecution.

Kartik (PW-4) – father of the appellant, has clearly stated that though he has not seen the incident by which the appellant has killed his wife, but he was informed by Ku. Phoolbati (PW-10) & Ku. Basanti (PW-11) that it is the appellant who has murdered Budhwari Bai, however, since Ku. Phoolbati (PW-10) & Ku. Basanti (PW-11) have not supported the case of the prosecution and they have not seen the incident, therefore, the statement of Kartik (PW-4) also cannot be believed to hold that it is the appellant who has committed the murder of deceased Budhwari Bai. As such, there is no ocular evidence available on record.

Now, axe has been recovered though not on the basis of memorandum statement but on being produced by the appellant and it was sent to FSL, however, the FSL report has not been brought on record whether it was stained with human blood or not. In that view of the matter, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another1, in absence of proof of human blood on the recovered article, it cannot be held that the recovery is of any use to the prosecution and there is no such evidence on record. As such, the prosecution has failed to prove by ocular or circumstantial evidence that it is the appellant who is the author of the crime and accordingly, we extend him the benefit of doubt.

Consequently, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 20-9-2013. The appellant is acquitted of the charge under Section 302 of the IPC. He is in jail. He be released forthwith, if his detention is not required in any other offence.

The appeal stands allowed.