Shivnath Gond vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 29.04.2015, passed by learned Additional Sessions Judge, Pratappur, District - Surajpur (C.G.) in Sessions Trial No. 03/2015, whereby the appellant has been convicted as under:-

Conviction

Sentence

U/s 302 of Indian Penal Code

Imprisonment for life with fine of Rs. 500/- and, in default of payment of fine amount, additional R.I. for 15 days.

U/s 201 of Indian Penal Code

Rigorous imprisonment for 5 years with fine of Rs. 200/- and, in default of payment of fine amount, additional R.I. for 10 days.

The case of the prosecution, in short, is that on 06.12.2014 at about 05:00 pm in Village-Runiyapara Bhediya, Police Station- Chandaura, District – Surajpur, the appellant assaulted his grandmother-in-law, namely, Fulmet Bai (now deceased), by means of wooden peedha, by which she suffered grieves injuries and died and, further, in order to screen himself from the legal punishment, tried to hide the evidence and, thereby, committed the offence under Sections 302 & 201 of IPC.

Further, the case of the prosecution, in a nutshell, is that the complainant Murari Kashi (PW-04), R/o Village-Aamapara Bhediya, Police Station- Chandaura, District-Surajpur (C.G.) lodged a report that on 07.12.2014 at about 08:00 a.m. one of the resident of his village, namely, Ghuran (PW-05) informed him that Fulmet Bai (deceased), grandmother-in-law of the appellant lying dead on the floor due to stomach pain. Thereafter, they went to the house of the appellant where they saw Fulmet Bai (deceased) lying dead on the bed in the porch of the house and blood was oozing out from the head of the deceased. Thereafter they went to the police station along with the appellant. The complainant Murari (PW-04) stated in the police station that prior to one day of the incident i.e. 06.12.2014 in the afternoon at about 02:30 p.m. Fulmet Bai (deceased) met him and told him that she will unable to reside in her house because appellant quarreling with her and threatened to kill her. He also stated that prior to the incident, Fulmet Bai (deceased) resided in his house because of family enmity. Based on which merg intimation was registered (Ex.P/08). Thereafter FIR was registered (Ex.P/09). Panchnama was conducted (Ex.P/07). Inquest was conducted (Ex.P/03) and the dead body of the deceased was sent for postmortem examination, which was conducted by Dr. Narendra Pratap Singh (PW-10), wherein it has been opined that the cause of death of the deceased is neurogenic shock due to head injury and the nature of death is homicidal. The appellant/accused was arrested (Ex. P/13). Memorandum statement of the appellant was recorded (Ex.P/04), pursuant to which, blood-stained wooden pedha and blood-stained clothes were seized vide Ex.P/06 and Ex.P/05 respectively which were sent to FSL for chemical examination. Though the FSL report dated 11.03.2015 has been brought on record but the same has not been exhibited. After due investigation, the appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 20 documents. The statement of the appellant/ accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offences punishable under Sections 302 & 201 of I.P.C. and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant.

Learned counsel for the appellant submits that the prosecution has failed to bring home the offence beyond reasonable doubt. There is no evidence available on record against the appellant herein to connect the crime in question, except the recovery of blood-stained articles (i.e. wooden pedha and clothes). However, in light of the decision of the Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh 2024 SCC Online SC 67 solely on the basis of recovery of aforesaid blood-stained articles the conviction of the appellant cannot be premised. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal on the basis of benefit of doubt.

Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offences under Sections 302 & 201 of I.P.C. is well merited, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

The first question for consideration is, whether the death of deceased Fulmet Bai was homicidal in nature?

Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P/14 proved by Dr. Narendra Pratap Singh (PW-10) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the next question would be whether the appellant is the author of the crime in question?

In the instant case, the learned trial Court has firstly invoked Section 106 of the Indian Evidence Act, 1872. However, there is no evidence on record to show that the appellant and the deceased both were residing together in the house in question mapped in Ex.P/10 on the date of offence. Further, Murari (PW-04), who is relative of the appellant and the deceased, has clearly stated before the Court that the deceased used to reside in the parchi of the house where her dead-body was found lying, whereas the appellant alongwith other family members used to reside in a room beside to it. During the course of his cross-examination, he has further stated that on the date of the offence, the wife of the appellant was not in the house. The appellant, alongwith his wife, father-in-law and grandmother-in-law (deceased) all used to reside in one house. Murari (PW-04) was subjected to cross-examination by the prosecution, but he remained consistent in his version. As such, there is no evidence available on record to hold that on the date and time of the offence, the appellant and the deceased both were residing together in one room or in the parchi of the house where the dead-body of the deceased was found lying. Furthermore, no question in this regard has been put to the appellant while recording his statement under Section 313 of CrPC, therefore, appellant’s explanation as to how and in what manner deceased suffered injuries and died does not arise. As such, for the above-mentioned infirmities, the learned trial Court is absolutely unjustified in invoking Section 106 of the Evidence Act on the appellant herein. Further, the learned trial Court has relied upon the recovery of blood-stained articles (wooden pedha and clothes) at the instance of the appellant. However, their Lordships of the Supreme Court in the matter of Raja Naykar (supra) have held that only on the basis of sole circumstance of recovery of blood-stained article, accused cannot be convicted for offence under Section 302 of IPC. As such, the recovery of blood-stained articles (wooden pedha and clothes) is of no help to the prosecution and same cannot be relied upon to convict the appellant herein for the offences in question.

In that view of the matter, the learned trial Court is absolutely unjustified in convicting the appellant herein for the offences under Sections 302 & 201 of IPC and he is liable to be acquitted on the basis of benefit of dobut. Accordingly, the conviction and sentences of the appellant for the offence under Sections 302 & 201 of I.P.C. are hereby set aside and he is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is in jail from 10.12.2014, we direct that he be released from jail forthwith, if not required in any other case.

Accordingly, this Criminal Appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith and to the Superintendent of Jail where he lodged and suffering jail sentence, for information and necessary action, if any.