Chattisgarh High Court
Jaisingh Gond vs State Of Chhattisgarh on 20 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 6 of 2014
Jaisingh Gond, S/o. Naihar Lal, Aged About 30 Years, R/o.
Budhapara, Thana Pasan, Revenue/Civil Distt. Korba, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh, Through Police Station Pasan, Revenue Distt.
Korba, Chhattisgarh
---Respondent
For Appellant :- Mr. Samir Singh, Advocate
For State-Respondent :- Mr. Soumya Rai, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
(20.01.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 28.09.2013 passed by learned Additional Sessions Judge,
Katghora, District Korba, in Sessions Trial No.86/2012, by which
the appellant herein has been convicted for the offence under
Section 302 of Indian Penal Code and sentenced to
imprisonment for life with fine of Rs.500/- and in default of
payment of fine, further 6 months imprisonment.
2. Case of the prosecution, in short, is that on 23.07.2012 at 11:00
p.m. in the night at village Budhapara, Thihaijhala forest, the
appellant assaulted his maternal uncle Mansingh Gond by
sword by which he suffered grievous injuries and died. The
matter was reported by son Lal Singh (PW-1) to the Police
Station and FIR was registered vide Ex.P-1 and merg intimation
is Ex.P-2. The police party reached to the spot and conducted
inquest vide Ex. P-8 and dead body was sent for post-mortem,
which was conducted by Dr. Deepak Singh (PW-12), who has
proved the post-mortem report vide Ex.P-15. According to the
post-mortem report, the cause of death was excessive
hemorrhage and cardio respiratory arrest. Thereafter, pursuant
to memorandum statement of the appellant, the blood-stained
sword and other articles were seized and were sent for FSL but
FSL report has not been brought on record. After due
investigation, the appellant was charge-sheeted for the offence
under Section 302 of I.P.C., which was committed to the Court
of Sessions for trial in accordance with law, in which the
appellant abjured his guilt and stated that he has not committed
the offence.
3. In order to bring home the offence, prosecution examined as
many as 13 witnesses and exhibited 28 documents and the
appellant-accused in support of his defence has neither
examined any witness nor exhibited any document.
4. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellant herein for the
offence under Section 302 of I.P.C. and sentenced as above,
against which the present appeal has been preferred.
5. Mr. Samir Singh, learned counsel for the appellant submits that
the trial Court has failed to bring home the offence beyond
reasonable doubt and therefore the appeal deserves to be
allowed. He further submits that the incident took place at
Thihaijhala forest surrounded with shrubs in late night when
there was no light and particularly, as per the prosecution, wife
of the deceased Sukmaniya Bai (PW-2) had seen the accused
by torch light and the torch and sword was left by the appellant
in place of incident vide merg intimation Ex.P-2, but torch has
not been seized. Even otherwise, there is no evidence on record
to convict the appellant for offence under Section 302 of I.P.C.;
as such, the conviction of the appellant is liable to be set aside
and the appeal deserves to be allowed.
6. Mr. Avinash Singh, learned State counsel submits that wife of
the deceased Sukmaniya Bai (PW-2) is eye-witness, which is
sufficient to convict the appellant for the offence under Section
302 of I.P.C. and, as such, the impugned judgment is well
merited and the appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
8. The first question for consideration is whether the death of
deceased Mansingh was homicidal in nature, which the learned
trial Court has answered in affirmative holding the death of the
deceased to be homicidal in nature relying upon the post
mortem report Ex.P-15 proved by Dr. Deepak Singh (PW-12). In
our considered opinion, the said finding recorded by the trial
Court holding the death to be homicidal in nature is correct
finding of fact based on evidence available on record, which is
neither perverse nor contrary to the record and therefore, we
hereby affirm the said finding.
9. Now, the next question would be, whether the appellant is the
author of the crime, to which the trial Court has firstly relied
upon the statement of Sukmaniya (PW-2) and held that the
appellant is author of the crime. Admittedly, as per spot map
Ex.P-3 proved by Lal Singh (PW-1), the place of incident is
forest of Thihaijhala, Budhapara and it is wholly surrounded by
shrubs and the deceased house was alone in that place and
that has been proved by Patwari Indrawan Singh (PW-10) who
has proved the Najri-naksha (Ex.P-6) and he stated that the
place of incident is adjoining to forest and it is only house of the
deceased and no such other house is there and also it is
admitted position on record that the incident happened at 11:00
p.m. and there is no light in the area at the time of incident as
light was not there. As per the statements of Lal Singh (PW-1),
son of deceased and Sukmaniya (PW-2) wife of deceased and
Ramnarayan (PW-4) who came on the spot after the incident
and informed to Lal Singh (PW-1), the incident occurred in the
late night in the dense forest where house of the deceased was
situated.
10. As per the evidence of wife of the deceased Sukmaniya (PW-2),
she was also sleeping on a separate cot, whereas the deceased
was sleeping on another cot and she is said to have seen the
appellant assaulting the deceased by sword and he shouted
"bachao-bachao" then he absconded from the spot. She also
said that the light was not there in the house and it was dark, but
she said that the appellant came with torch. As per the merg
intimation vide Ex.P-2, the appellant is said to have left the torch
and sword at the spot, but admittedly the torch has not been
seized from the spot.
11. Now, the question is whether Sukmaniya (PW-2) has rightly
identified the deceased in absence of light and it was dark as
per the statements of Lal Singh (PW-1), Ramnarayan (PW-4),
Indrawan Singh (PW-10) & M.R. Kathotiya (PW-13) ?
12. Admittedly, at the time of incident, at 11:00 p.m., there was dark
and no light facility was available and the deceased and
Sukmaniya (PW-2) both were sleeping on separate cots. As per
the statement of Sukmaniya (PW-2) after receiving sword blow,
the deceased shouted "bachao-bachao" then she shouted for
help and then the appellant absconded. Since the deceased has
suffered sword injury and he shouted due to pain and agony,
therefore, it is unnatural that after making sword blow, the
appellant had stayed there to be identified by his wife; more
particularly when Sukmaniya (PW-2) was admittedly asleep
during the alleged sword blow made by the appellant,
particularly when it has been established that there was
darkness on the spot of the murder, rendering the identification
not possible. As such, since there was darkness at the time of
incident and Sukmaniya (PW-2) was asleep at that time and it is
the case that torch was left at the place of incident, but torch has
not been recovered, the testimony of PW-2 with respect to
means of identification on a torch light is not acceptable to us.
13. Furthermore, immediately on the spot, Ramnarayan (PW-4)
reached therein to whom Sukmaniya (PW-2) wife of the
deceased told him to call his son Lal singh and Lal Singh
reached on the spot, he has been examined as PW-1. He has
clearly stated that after reaching to his house, his father was
alive for half an hour, but no such statement has been made that
he has named the appellant herein as assailant and even
Ramnarayan (PW-4) who reached immediately after the incident
to whom Sukmaniya (PW-2) did not tell anything about the
assailant i.e. appellant also creates doubt on the prosecution
case. Furthermore, Murari (PW-5) has also reached along with
Ramnarayan (PW-4) being the father of the Ramnarayan to
whom Sukmaniya (PW-2) said that someone has killed her
husband Mansingh and called her sons and then Lal Singh
reached there, as such, from the aforesaid, it is quite vivid that it
is a case of mistaken identity, if any, by Sukmaniya (PW-2)
particularly in absence of light on the spot, as incident is said to
have been occurred in the late night in dense forest in the house
of the deceased surrounded with shrubs. As such, it would be
unsafe to convict the appellant only on the basis of sole
testimony of eye-witness PW-2. Furthermore, the sword which is
alleged to have been seized pursuant to memorandum
statement was sent for FSL, but no FSL report has been
brought on record and more particularly as per merg intimation
recorded by the police vide Ex.P-2, the sword was already there
in the spot, so the recovery of sword as per the memorandum
statement of the appellant is not established.
14. In view of the aforesaid discussion, we are of the opinion that
the prosecution has failed to bring home the offence beyond
reasonable doubt and the learned Sessions Judge is absolutely
unjustified in convicting the appellant for the offence under
Section 302 of I.P.C. Accordingly, the conviction and sentence
imposed upon the appellant is hereby set aside, he is acquitted
of the charge under Section 302 of I.P.C. The appellant be
released from jail forthwith, if not required in any other case.
15. Accordingly, the criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Aks
