Rakesh Gond Vs State Of Chhattisgarh

Chhattisgarh, in Sessions Trial No. 76/2016, by which, the appellant herein has been convicted for offence punishable under Sections 302 & 201 of Indian Penal Code and sentenced as under:

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Conviction	Sentence
u/s 302 of the IPC	Life imprisonment and fine of Rs.100/-, in default of payment of fine one month additional rigorous imprisonment.
u/s 201 of the IPC	R.I. for 3 years and fine of Rs.100/-, in default of payment of fine one month additional rigorous imprisonment.

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2. The case of prosecution, in short, is that on 28.12.2015, the appellant herein took the custody of his own son Roshan @ Yuvraj aged around only one and a half month from his mother Seema Gond (PW-2) i.e. the wife of appellant and strangulated him to death and threw the dead body into the gutter near Shivnath river, thereby committed the aforesaid offence. The wife of appellant Seema Gond (PW-2) reported the matter to the Police, pursuant to which Merg (Ex.P-4) was recorded and FIR (Ex. P-5) was registered.

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Inquest proceedings were conducted vide Ex.P-7 and the dead body of deceased was subjected to postmortem, which was conducted by Dr. Sanjeev Kumar Shukla (PW-8), who has proved the postmortem report (Ex. P-12), in which, cause of death has been opined to be asphyxia anti mortem in nature.

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3. After completion of investigation, appellant herein was charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence stating that he has not committed any offence and he has falsely been implicated in crime in question.

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4. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited 14 documents and the appellant-accused in support of his defence has not examined any witness but exhibited 2 documents.

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5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted

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the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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6. Mr. Akhilesh Mishra , learned counsel for the

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appellant, appointed by CG High Court Legal Services Committee, would submit that there is no eye witness to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence. He would submit[ that the mother of the deceased Seema Gond (PW-2) is not a reliable witness and the appellant has been falsely implicated. He would further submit that apart from the statement of Seema Gond (PW-2), there is no other evidence on record based on which the appellant can be convicted for the offence under Sections 302 and 201 of IPC. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt.

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7. On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that the appellant snatched the deceased aged

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about 1 ½ months from the custody of her mother and thereafter buried him near the brook from where the dead body was recovered. After burying the deceased, the appellant returned to his wife Seema Gond (PW-2) and told her that he had killed her son. He would further submit that the prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and therefore, the instant appeal deserves to be dismissed.

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

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9. Now, the question is as to whether the appellant herein is the author of the crime?

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10. Deceased Roshan @ Yuvraj was admittedly one and a half month old child. Seema Gond (PW-2) who is the mother of the deceased and wife of the appellant has clearly stated in her statement before the Court

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that on the date of offence, the appellant came home late at night under the influence of alcohol and snatched her son (deceased) from her and went out along with his son. The appellant was threatening that he would kill her son as he was suspecting that the deceased is not born out of their wedlock (appellant and Seema Gond). She has further stated that the appellant returned after about an hour and when she enquired about her son, he told that he had killed him and buried in the gutter of Beldarpara. The appellant also pushed her by which she sustained injuries. Thereafter, Seema Gond (PW-2) informed the matter to her mother Asha Lodhi (PW-11) and uncle Lalit Kumar Thakur (PW-3) and all three went to Beldarpara and found the dead body of her son in the gutter. Thereafter, she reported the matter to the Police Station. This witness was subjected to lengthy cross-examination but nothing has been extracted to hold that the custody of the deceased was not taken by the appellant herein from her mother. Therefore, the appellant was required to explain as to how and in what circumstance his 1 ½

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months son (deceased) died after taking his custody from his mother which he has not explained.

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11. In the matter of Sucha Singh vs. State of Punjab¹ the Hon’ble Supreme Court held that it is the abductor who can inform the Court as to what happened to the deceased after he or she was abducted and observed as under:

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“15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

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19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which

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1 (2001) 4 SCC 375

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might drive the court to draw a different inference.

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12. In the instant case, it is only and only the

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appellant who has special knowledge as to what happened to his 1 ½ months old son Roshan or when he parted from his company, but he failed to explain the same in his statement recorded under Section 313 of CrPC. Since the appellant had taken the custody of his one and a half month old son Roshan from his mother i.e. the wife of appellant, he was required to explain in what circumstance Roshan (deceased) died and the dead body was recovered from the gutter near Beldarpara vide Ex. P-7. As such, we are of the considered opinion that since the appellant had taken the custody of his minor son from his mother i.e. the wife of appellant and after an hour late at night he came under the influence of alcohol without his son,

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he was required to explain as to how and in what circumstance his son Roshan died but the appellant has not given any explanation in this regard in his statement recorded under Section 313 of CrPC.

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13. In that view of the matter, the trial Court has rightly held that it is the appellant who is the author of the crime and committed the murder of his one and a half month old son Roshan. Hence, the trial Court is fully justified in convicting and sentencing the appellant for the offence punishable under Sections 302 & 201 of IPC and we do not find any good ground to interfere with the same.

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14. Thus, the present criminal appeal deserves to be and is accordingly dismissed.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Rakesh Gond v. State Of Chhattisgarh

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Rakesh Gond v. State Of Chhattisgarh

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