Shivshankar Chakresh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This Criminal Appeal, under Section 374(2) of CrPC, has been preferred by the appellant against the Judgment & Order dated 9.5.2017 passed by Additional Judge to the Additional Sessions Judge, Kunkuri, District Jashpur in Sessions Trial No.48/2016, by which the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Imprisonment for Life and fine of Rs.500/- and, in default of payment of fine, to undergo additional R.I. for two months.

Case of the prosecution, in brief, is that on 29.7.2016 at about 4:30 p.m. at Village Kumhartoli Khas, Tapkara under Police Station Tapkara, District Jashpur, the appellant assaulted his wife, Pramila, by wooden cot leg (khura) on account of which, she sustained grievous injuries and died.

On 30.7.2016 at 9:30 a.m., a Merg Intimation was lodged by Vijay Chakresh (PW-6), son of the appellant and the deceased, at Police Station Tapkara intimating that on 29.7.2016 when he was working in the Cycle Store of one Virendra Choudhary, Rupesh Ram Yadav (PW-4) informed him that his father was beating his mother. He immediately reached home and found his mother lying unconscious in the courtyard of his house and there were internal injuries on her waist, thigh and both legs and thereafter at about 7:30 p.m. she succumbed to the injuries sustained by her. According to him, the injuries sustained by the deceased was caused by his father, the appellant.

On the basis of the Merg Intimation (Exhibit P-9), a named FIR was registered against the appellant for the offence punishable under Section 302 of IPC, vide Exhibit P-10. Inquest proceeding was conducted vide Exhibit P-8 and the dead-body of deceased, Pramila, was subjected to post-mortem which was conducted by Dr. Subal Prasad Paikra (PW-3) vide Exhibit P-5 in which the cause of death was opined to be hemorrhagic shock due to rupture of spleen and accumulation of blood in left lung, which was homicidal in nature. Spot Map was prepared vide Exhibit P-1 and Nazri Naksha was prepared by the Patwari vide Exhibit P-12. Memorandum statement of the appellant was recorded vide Exhibit P-2 pursuant to which, an old wooden cot leg was seized vide Exhibit P-3. Vide Query Report (Exhibit P-6), Dr. Subal Prasad Paikra examined the seized wooden cot leg and opined that the injuries mentioned in the post-mortem report can be caused by the seized wooden cot leg (khura). Though seized articles were said to be sent for forensic examination but no F.S.L. report has been brought on record.

After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC and the matter was committed to the Sessions Court from where it was submitted before the Court of Aditional Judge to the Additional Sessions Judge, Kunkuri for trial and its disposal in accordance with law, in which the appellant abjured his guilt, pleaded for false implication and entreated for trial.

During the course of trial, in order to bring home the offence, the prosecution examined as many as 11 witnesses as PW-1 to PW-11 and exhibited 17 documents vide Exhibits P-1 to P-17. Statement of the accused/appellant was recorded under Section 313 of 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, in defence, neither any witness has been examined nor any document has been relied upon.

After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 9.5.2017, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to undergo Life Imprisonment and fine of Rs.500/- with default stipulation, against which the present appeal has been filed by the appellant.

Mr. J.K. Saxena, learned counsel appearing for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. There is no eyewitness account to the incident and the appellant has been convicted for the offence of murder of his wife despite the fact that there is no evidence against him. As such, the appeal deserves to be allowed acquitting the appellant from the said offence on the basis of benefit of doubt.

Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, however, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and that present is a case of house murder where the dead-body of the appellant’s wife has been found inside his own house and no explanation has been offered by him in his statement recorded under Section 313 of CrPC as to how and under what circumstances his wife died in his house. As such, the Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of IPC and the appeal is liable to be dismissed.

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

The first question for consideration, as to whether the death of deceased Pramila was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of Dr. Subal Prasad Paikra (PW-3) who has conducted and proved the post-mortem vide Exhibit P-5 in which the cause of death of deceased Pramila was opined to be hemorrhagic shock due to rupture of spleen and the accumulation of blood in left lung and the nature of death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court holding that the death of deceased Pramila was homicidal in nature.

Now, the next question for consideration is, as to whether the appellant has caused death of his wife Pramila?

PW-7 Urmila Chakresh, who was projected by the prosecution as eye-witness to the incident claimed to have seen the appellant assaulting his wife Pramila by wooden cot leg, has turned hostile and not supported the case of the prosecution. Thereafter, the Trial Court proceeded on the basis that PW-6 Vijay Chakresh @ Rohit, son of the appellant and the deceased, had lodged the Merg Intimation at the police station stating that the appellant had assaulted the deceased by means of wooden cot leg (khura) on account of which she died, but the said witness PW-6 Vijay Chakresh has also turned hostile and not supported the case of the prosecution. However, the Trial Court further proceeded on the basis that the son of appellant would not falsely implicate his own father and thus the Trial Court accepted the statement of PW-6 Vijay Chakresh and on the basis of his evidence, recorded the finding that the appellant has caused death of his wife, Pramila.

The said finding of the Trial Court is not based on sound reasoning and proper appreciation of evidence and it cannot be sustained in law as the prosecution has to prove its case beyond reasonable doubt. Merely because the son of the accused/appellant has reported the matter in respect of commission of the offence of murder against his father and which he has not supported before the Court, it cannot be said that the appellant has caused murder of his wife. Furthermore, though pursuant to the memorandum statement of the appellant, a wooden cot leg (khura) is said to have been recovered but it was not subjected to forensic examination, as no FSL report to that effect has been brought on record. As such, in absence of blood and/or human blood on the alleged weapon of offence, i.e., wooden cot leg, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgargh (2019) 7 SCC 781, recovery of the said article would be of no use to the prosecution. In that view of the matter, the finding arrived at by the Trial Court convicting the appellant for the offence punishable under Section 302 of IPC is not correct in view of the evidence available on record and the same deserves to be and is hereby set-aside. The appellant is entitled to be acquitted of the said charge on the basis of benefit of doubt and it is accordingly held so.

Consequently, we set aside the conviction and sentence of the appellant for the offence punishable under Section 302 of IPC and acquitted him of the said charge. He is reported to be in jail since 31.7.2016. He be set at liberty forthwith, if his detention is not required in connection with any other offence.

In the result, this Criminal Appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail, where the appellant is suffering his sentence, be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.