Krishan Baldev vs State Of Chhattisgarh

Sanjay K. Agrawal, J

The appellant herein has preferred this appeal under Section 374(2) of the CrPC, questioning legality, validity and correctness of the impugned judgment dated 6-8-2014, by which he has been convicted under Sections 302 & 323 of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 500/-, in default of payment of fine to undergo simple imprisonment for two months, respectively.

Case of the prosecution, in the nutshell, is that on 5-6-2012 at 6:30 a.m., the appellant assaulted Anshu Soni by an iron summi (a sharp-edged weapon) by which he suffered injuries and died and also caused simple injuries to Harshit Soni (PW-3). Further case of the prosecution is that on the date of offence, deceased Anshu Soni being a differently abled person was watching cricket which was being played by Abhay Soni (PW-2), Harshit Soni (PW-3) & Avinash Gupta (PW-4) and at that time, alleging that some stone was thrown upon him by deceased Anshu Soni, the appellant assaulted him by a sharp-edged weapon (summi) by which he suffered 32 injuries and died on the spot pursuant to which Ashok Soni (PW-1) lodged first information report Ex.P-1 and morgue intimation Ex.P-2. Inquest was prepared vide Ex.P-4 and dead body was subjected to postmortem vide Ex.P-12A which was conducted by Dr. Om Prakash Prasad (PW-11) who opined that cause of death is head injury and death was homicidal in nature. Thereafter, memorandum statement of the appellant was recorded vide Ex.P-7 and the iron sharp-edged weapon was seized vide Ex.P-8 which was sent for chemical analysis to the Forensic Science Laboratory, Raipur, but no report was brought on record. Statements of the witnesses were recorded under Section 161 of the CrPC and the matter was investigated.

After completion of due investigation, charge-sheet was filed against the appellant for offences under Sections 302 & 323 of the IPC before the jurisdictional criminal court which was committed to the Court of Sessions, Surguja from where the learned 3rd Additional Sessions Judge, Ambikapur, received the case on transfer for trial and for hearing and disposal in accordance with law.

The trial Court has framed charges under Sections 302 & 323 of the IPC against the appellant and proceeded on trial. The accused / 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 17 documents Exhibits P-1 to P-17, whereas the defence has examined one witness Smt. Uma Devi (DW-1) and exhibited three documents i.e. treatment bills of Davis Institute of Neuropsychiatry (Kishore Nursing Home). Statement of the appellant was recorded under Section 313 of the CrPC in which he abjured guilt and pleaded innocence.

The trial Court after completion of trial and after appreciating oral and documentary evidence on record, convicted the appellant under Sections 302 & 323 of the IPC and sentenced him to undergo imprisonment for life and other sentence as noticed in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him.

Mr. Bharat Sharma, learned counsel appearing for the appellant, would submit that the prosecution witnesses – Abhay Soni (PW-2), Harshit Soni (PW-3) & Avinash Gupta (PW-4) being child witnesses are not reliable and trustworthy and their testimony should not have been relied upon to convict the appellant. Furthermore, the sharp-edged weapon seized from the possession of the appellant though was sent for chemical analysis before the FSL, but no FSL report was brought on record, therefore, it could not be connected with the offence in question. As such, the prosecution has not been able to bring home the offence against the appellant beyond reasonable doubt and therefore conviction and sentences imposed upon the appellant are liable to be set aside and the appellant deserves to be acquitted by allowing the appeal.

Mr. Avinash Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to prove the offence against the appellant beyond reasonable doubt 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 whether the death of the deceased was homicidal in nature has been answered by the trial Court in affirmative considering the postmortem report Ex.P-12A, which has been proved by Dr. Om Prakash Prasad (PW-11) in which cause of death was stated to be due to head injury and death was homicidal in nature. The finding recorded by the trial Court that death of deceased Anshu Soni was homicidal in nature, 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.

Conviction of the appellant is merely based on the testimony of Abhay Soni (PW-2), Harshit Soni (PW-3) & Avinash Gupta (PW-4) of whom deceased Anshu Soni was watching cricket and one of the witnesses Harshit Soni (PW-3) is also injured witness who has suffered simple injuries. All these three witnesses have clearly stated before the Court that on the date of offence they were present on the spot and playing cricket and the deceased was watching cricket by sitting nearby and all of a sudden, the appellant armed with a sharp-edged weapon summi came and assaulted the deceased, but some how, he tried to run away, however, the appellant caught hold of him and caused 32 injuries on his head & neck by which he suffered injuries and died. All three witnesses are child witnesses and they have categorically deposed that they were playing cricket and the deceased was watching, all of a sudden, the appellant came and assaulted the deceased on his head & neck. They have been subjected to some extent of cross-examination, but nothing has been extracted from them to hold that they have not seen the incident and it is not the appellant who has assaulted the deceased by sharp-edged weapon summi. Postmortem report Ex.P-12A reveals that the appellant has mercilessly caused as many as 32 injuries on head, neck and other parts of the body by which the deceased suffered multiple injuries on his body and died. Pursuant to the memorandum statement of the appellant, the sharp-edged weapon summi was seized which has been subjected to chemical analysis by sending the same to the FSL, but no FSL report was brought on record and no blood has been found on the same. However, considering the testimony of Abhay Soni (PW-2), Harshit Soni (PW-3) & Avinash Gupta (PW-4), it can be safely held that it is the appellant who has caused 32 injuries on the body of the deceased duly witnessed by them. As such, we are of the considered opinion that the trial Court is absolutely justified in convicting the appellant under Section 302 of the IPC for committing the murder of deceased Anshu Soni particularly when he was a differently abled child and also under Section 323 of the IPC for causing simple injuries to Harshit Soni (PW-3).

Consequently, we do not find any merit in this appeal, it deserves to be and is accordingly dismissed.