Shivcharan Gond vs State Of Chhattisgarh
2021 Latest Caselaw 769 Chatt

                                                                      NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                              CRA No. 46 of 2018

      Shivcharan Gond S/o Sumarsai Gond Aged About 67 Years
       Occupation Agriculturist/ Labour R/o Village Shankarpur,
       Dumarpara, Police Station Udaypur District Surguja Chhattisgarh

                                                             ---- Appellant

                                     Versus

      State Of Chhattisgarh Through The              District   Magistarate
       Ambikapur, District Surguja Chhattisgarh

                                                           ---- Respondent

For Appellant :Mr. Tarun Dansena, Advocate. For State/Respondent :Mr. Ghanshyam Patel, G.A.

Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board

01.07.2021

1. This appeal has been preferred against the judgment dated

07.11.2017, passed in Sessions Case No.66/2016 by the

learned Sessions Judge, Ambikapur, Distt. Surguja (C.G.)

wherein, the Appellant has been convicted for the offence

punishable under Section 304 Part 2 of the IPC and

sentenced to undergo RI for 10 years and to pay fine of Rs.

500/-, with default stipulation.

2. In this case, the name of the deceased is Panmeshwari who

was wife of the Appellant. Sukhnath (PW-1) and Shakuntala

(PW-2) are the son and daughter-in-law respectively of the

Appellant and the deceased. According to the case of

prosecution, the Appellant and the deceased were resided

separately in their old house. On the date of incident i.e. on

26.12.2015, the Appellant has organized some function in his

house where his daughter-in-law Shakuntala (PW-2) was

cooking food and the Appellant and the deceased was

consuming liquor. During that time a quarrel has been taken

place between them and the Appellant has assaulted the

deceased on his waist with the help of axe (Tangiya) due to

which she sustained injury and fell down on the floor. The

incident was witnessed by Shakuntala (PW-2). Immediately

after the assault, Shakuntala (PW-2) has screamed, hearing

Shakuntala's scream, Sukhnath (PW-1) reached the spot,

after seeing Sukhnath, the Appellant fled away from the spot.

Thereafter, Panmeshwari was taken to hospital in

unconscious condition where Doctor declared her dead.

Thereafter, morgue intimation and FIR has been lodged by

Sukhnath (PW-1) vide (Exs.-P-1 & P-2). Inquest proceedings

was conducted vide (Ex. P-3). Postmortem of the deceased

was conducted by Dr. JL Miri (PW-7), his report is (Ex.P-12).

Statements of witnesses recorded under Section 161 of

Cr.P.C. After completion of investigation, charge-sheet was

filed by the Police under Section 302 of the IPC. Trial Court

framed the charges against the Appellant. To robe the

Appellant in the crime-in-question, the prosecution has

examined as many as 11 witnesses. In the statement of the

Appellant recorded under Section 313 of Cr.P.C, he has

pleaded her innocence and false implication in the matter,

however, no defence witness was examined by the Appellant.

After completion of trial, Trial Court acquitted the Appellant for

the offence punishable under Section 302 of the IPC.

However, convicted and sentenced the Appellant under

Section 304 Part 2 of the IPC as mentioned in Para 01 of this

judgment. Hence, this appeal.

3. Learned Counsel appearing for the Appellant submits that

without there being any clinching and reliable evidence

available on record, the Trial Court has convicted the

Appellant. He further submits that Sukhnath (PW-1) &

Shakuntala (PW-2) are not supported the entire case of

prosecution and turned hostile. Inspite of that, the Trial Court

has convicted the Appellant. Hence, his conviction is not

sustainable.

4. On the contrary, learned State Counsel opposed the appeal

and supported the impugned judgment.

5. I have heard learned counsel appearing on behalf of the

parties and perused the record minutely. I have also gone

through the statements of the witnesses.

6. Soul eye-witness of the case Shakuntala (PW-2) in her Court

statement has categorically deposed that at the time of

incident, she went to her old house for cooking food where

her father-in-law and mother-in-law was living at that time the

Appellant and the deceased was consuming liquor. According

to this witness at around 7 PM when she was serving food to

her father Sundar in the courtyard at that time the Appellant

assaulted the deceased through axe (tangiya) on her waist

due to which she sustained grievous injury and fell down on

the floor. She further deposed that after seeing the assault,

she screamed and after hearing her scream, Sukhnath (PW-

1) reached the spot. She narrated the entire incident to her

husband Sukhnath. Sukhnath (PW-1) supported the

statement of Shakuntala (PW-2) and also deposed that after

hearing the sound of screaming of his wife, he reached the

spot, the deceased was fell down on the floor in unconscious

condition and his father was standing outside the house.

Though this witness has not supported the further case of

prosecution but when he reached the spot at that time the

Appellant was standing outside the house, this statement is

not duly rebutted during his cross-examination. Shakuntala

(PW-2) who is a soul eye-witness of the case has duly firmed

during her cross-examination and her statement regarding

marpeet by the Appellant with the deceased is also not

rebutted. The above statement of both the witnesses are

reliable.

7. Looking to the above statements of the above witnesses

which are duly corroborated by medical evidence also, in my

considered view, the Trial Court has rightly convicted the

Appellant.

8. The conviction of the Appellant under Section 304 Part 2 of

the IPC is affirmed and with regard to the sentence part,

considering the fact that the Appellant is in jail since

27.12.2015, presently he is aged about 70 years and he has

no criminal antecedent. Looking to the above facts, against

the conviction he is sentenced to the period already

undergone by him. The fine sentence for the offence

punishable under Section 304 Part 2 of the IPC is also

affirmed.

9. It is reported that the Appellant is in jail, he be released

forthwith if not required in any other case.

10. Records of the Court below be sent back along with a copy of

this order forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Shubham