Nagul Munna Vs State of Chhattisgarh

Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and

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order of sentence dated 22.02.2018 passed by the Sessions Judge, South Bastar Dandewada, Chhattisgarh in Sessions Trial No.267/2016 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment 3 months.

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The case of the prosecution, in a nutshell, is that on 20.05.2016 at about 9:00 am, in the dense forest, at village Khaspara Phoolbagadi, Police Station Phoolbagadi, DistrictSukma, Chhattisgarh, appellant his wife Nagul Hungi (now deceased) by sharp edged weapon (बं�डा�) by which she suffered grievous injuries and died. The said incident was witnessed by Nagul Reeta (PW-3), daughter of the appellant and the deceased, who immediately informed about the said incident to her grandfather Nagul Gagaru (PW-1), uncle of the appellant, pursuant to which he (PW-1) reported the matter to the police. Thereafter, merg intimation and FIR were registered vide Exs.P/1 & P/2, respectively. Inquest proceedings (Ex.P/6) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/7) proved by Dr. Smt. Saujanya (PW-4) cause of death was due to cardiac arrest. Pursuant to memorandum statement of the appellant

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(Ex.P/10) weapon of offence was seized vide Ex.P/11. Seized articles were sent for chemical analysis to FSL, but FSL report has not been brought on record for the reasons best known to the prosecution.

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After due investigation, appellant 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.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 & 2 check-up/examination witnesses and exhibited 20 documents whereas, the appellant in defence has examined 2 witnesses and exhibited 1 document. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been

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preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Ms. Nirupama Bajpai, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for aforesaid offence as the prosecution has failed to prove the offence against the appellant beyond reasonable doubt and he has falsely been implicated in crime in question. She also submits that Nagul Reeta (PW-3), daughter of the appellant and the deceased, is not a reliable witness as she reached to the spot after 20 minutes of the incident and she did not report the matter to the police herself, she only informed the matter to Nagul Gagaru (PW-1) who has turned hostile and not supported the prosecution case, therefore, Nagul Reeta (PW-3) has neither the eye witness nor the natural witness. She further submits that memorandum statement of the appellant has not been found proved by the trial Court and the appellant has been convicted only on the basis of surmises and conjectures, as such, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, Mr. Arvind Dubey, learned State counsel, supports the impugned judgment and submits that

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prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that the Nagul Reeta (PW-3) is the reliable eye witness and, therefore, the appellant has rightly been convicted for the offence in question. Thus, the instant appeal deserves to be dismissed.

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

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Now, the first question is, whether the death of the deceased was homicidal in nature?

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In this regard the trial Court has been answered by the trial Court in affirmative that the death of Nagul Hungi (deceased) was homicidal in nature relying upon the statement of Dr. Smt. Saujanya (PW-4), who proved the postmortem report of the deceased (Ex.P/7) which, in our considered opinion, is a 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.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the testimony of sole eye witness Nagul Reeta (PW-3) and the seizure of weapon (Ex.P/11) which was made pursuant to memorandum statement of the appellant (Ex.P/10), but the memorandum statement of the appellant (Ex.P/10) has not been found proved by the trial Court in para 25 of its judgment, as such, the conviction of the appellant is only based on the sole testimony of the eye witness Nagul Reeta (PW-3).

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According to the testimony of the sole eye witness Nagul Reeta (PW-3), daughter of the appellant and the deceased, when her mother (deceased) was taking her (PW-3) father (appellant herein) to Regampara Badde for treatment, she was following them and on the way in the forest, she saw the appellant assaulting her mother by sharp edged weapon (बं�डा�), but surprisingly, in para 11 of her statement before the Court she has stated that she reached to the spot after 15-20 minutes of incident, even otherwise, she only informed the matter to her grandfather Nagul Gagaru (PW-1), uncle of the appellant, who has turned hostile and not supported the case of the prosecution and also he did not state before the Court in his

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statement that the information about the said incident was given to him by Nagul Reeta (PW-3). Further, distance between the place of incident and place where PW-3 was present was a considerable distance and it was covered with the dense forest and according to Nagul Reeta (PW-3), mental condition of her father (appellant) was not well and this has also been stated by Nagul Gagaru (PW-1). Though she (PW-3) was major on the date of offence, she did not report the matter to the police herself about the incident and she only informed about the incident to Nagul Gagaru (PW-1), who has turned hostile, which makes the case of the prosecution doubtful, as such, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Accordingly, t he impugned judgment dated 22.02.2018 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence on the basis of principles of benefit of doubt. Appellant is stated to be in jail since 10.07.2016, we direct that he be released from the jail forthwith, if not required in any other matter.

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This criminal appeal is allowed .

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge

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Ankit

Nagul Munna v. State of Chhattisgarh

Case brief

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Nagul Munna v. State of Chhattisgarh

Case brief

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