Dinesh Singh Gond vs State Of Chhattisgarh

Sanjay K. Agrawal, J

The present criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the judgment and order dated 28.1.2017 passed by the Second Additional Sessions Judge, Manendragarh, District Koriya in Sessions Case No.29/2015, by which the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life with fine of Rs.2000/- and in the event of non-payment of fine amount, to undergo additional Simple Imprisonment for six months.

Case of the prosecution, in brief, is that on 19.12.2014 at about 5:30 a.m., in his home situated at Village Ghatai Bachahapara, the appellant caused death of his son, Shivam, aged about 13 years, by assaulting him with axe (tangi). The matter was reported at Police Station Janakpur by PW-1 Kunwar Singh, elder brother of the appellant, who stated that the appellant used to consume liquor by selling paddy/rice kept in his house and on requesting him by his wife Laxmi Bai (PW-3) for not doing so, he also used to quarrel and beat her and for that reason, his wife is said to have left her matrimonial home and had gone to her paternal home about 11 days prior to the date of incident. On 19.12.2014, i.e., on the date of incident, in the morning at about 6-6:30 a.m., when Awdhesh Singh (PW-8), younger brother of the appellant, asked the appellant to open the door of his room, the appellant refused to open the door and told him that he had already killed his son, Shivam, and if he will be forced to open the door then he will kill PW-8 Awadhesh Singh also. PW-8 Awadhesh Singh then went to inform the villagers about the said incident and in between, the appellant ran away from the spot and thereafter ensanguined dead-body of Shivam was found inside the room.

On the basis of the said report, Dehati Merg Intimation was recorded vide Exhibit P-1 and after investigation, Merg Intimation was recorded vide Exhibit P-12 and F.I.R. was registered vide Exhibit P-11 against the appellant for the offence punishable under Section 302 of IPC. Spot Map was prepared vide Exhibit P-4. Inquest report was prepared vide Exhibit P-2 and the dead-body of deceased Shivam was subjected to post-mortem which was conducted by PW-15 Dr. R.K. Raman vide Exhibit P-15A in which the cause of death was opined to be due to excessive bleeding and cardio-respiratory arrest and the nature of death was homicidal. Appellant was taken into custody and his memorandum statement was recorded vide Exhibit P-6 pursuant to which, a bloodstained iron axe was recovered at his behest from the roof of his house vide Exhibit P-7. Nazri Naksha was prepared by the Patwari vide Exhibit P-5. Though seized axe along with the other seized articles were sent for chemical examination to F.S.L. Ambikapur vide Exhibit P-13, but no F.S.L. report has been brought on record by the prosecution for the reasons best known to them.

After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court and thereafter the case was committed to the Sessions Court, Baikunthpur and after committal, the matter was received by the Court of Second Additional Sessions Judge, Manendragarh for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

During the course of trial, in order to bring home the offence, the prosecution has examined as many as 17 witnesses as PW-1 to PW-17 and exhibited 16 documents from Exhibits P-1 to P-16. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in evidence brought on record by the prosecution, pleaded innocence and false implication.

After conclusion of the trial, the Trial Court, by impugned judgment and order dated 28.1.2017, on appreciation of the oral and documentary evidence available on record, has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to undergo Imprisonment for Life and to pay fine of Rs.2000/- with default stipulation, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.

Mr. Vikas Pandey, learned counsel appearing for the appellant, would submit that the testimony of the sole eye-witness, PW-2 Satyam, who is brother of the deceased and son of the appellant, is not trustworthy and therefore the Trial Court could not have relied upon the testimony of PW-2 Satyam to base conviction of the appellant. As such, the appellant is entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be allowed.

Ms. Nand Kumari Kashyap, learned State Counsel, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Trial Court has rightly convicted the appellant for the offence of murder as the appellant has brutally killed his own son. As such, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed.

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

The first question, as to whether the death of deceased Shivam was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-15 Dr. R.K. Raman who has proved the post-mortem report (Exhibit P-15A) in which the cause of death of deceased Shivam has been opined to be due to excessive bleeding and cardio-respiratory arrest and the nature of death has been stated to be homicidal, which, in our considered opinion, is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record and the same is hereby affirmed.

Now, as regards the next question, as to whether the appellant is author of the crime and has caused death of his son Shivam, the Trial Court has relied upon the testimony of PW-2 Satyam who has clearly stated that deceased Shivam was his elder brother and they were two brothers. His father, the appellant, used to consume liquor by selling paddy/ rice kept in their house and for that reason there was a quarrel took place between his father and mother and his mother had left the home and gone to her parental home. He has further stated in his statement that on the date of incident, in the night, he and his brother, deceased Shivam, were sleeping together in their room after having their meal and the appellant was not in the home as he had gone out to drink liquor. Subsequently, the appellant came back to home in the night and build a fire. The appellant thereafter woke up both the brothers, Shivam and Satyam, to warm by fire and asked Shivam to bring the axe kept in the roof deck and which was brought by Shivam. The appellant then asked Shivam to stand on the doorstep of the room and then he assaulted Shivam with axe on his neck on account of which he received fatal injuries on his neck and died on the spot, which is proved by PW-15 Dr. R.K. Raman who has conducted the post-mortem of the deceased Shivam. According to PW-2 Satyam, at the time of incident, he was present at the spot. PW-2 Satyam has been cross-examined at some length but nothing has come out from his cross-examination to hold that he is not the eye-witness and has not seen the incident where the appellant has assaulted his elder son Shivam with axe resulting in his death.

In view of the aforesaid facts and circumstances and the discussion of evidence, we are of the considered opinion that the manner in which the appellant has caused death of his innocent son after asking him to bring axe and standing him at the threshold of the door and then assaulting him brutally with the said axe that too at the instructions of the appellant himself on account of which, he succumbed to the fatal injuries as proved by PW-15 Dr. R.K. Raman who has conducted the post-mortem, the Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of IPC.

We do not find any merit on the appeal which deserves to be and is accordingly dismissed.