Allowed¶36

Duleshwar Nishad v. State Of Chhattisgarh

Chhattisgarh HC17 Jan 2024CRA/785/2017

Case brief

AI extract

What is this about?

What did the court decide?

Appeal allowed; impugned judgment of conviction and order of sentence dated 28/02/2017 in Sessions Trial No.56/2015 set aside; appellant (acquitted with benefit of doubt) directed to be set at liberty forthwith unless required in connection with any other case. ¶36

Duleshwar Nishad Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

¶36

Issue for consideration

Whether the alleged crime (death of Hemu Nishad) was committed by the appellant? +1 more

¶31

Court's answer

The finding recorded by the court below holding the appellant guilty of the alleged crime cannot be sustained in the eye of law.

¶35

Ratio / Principle

Cause of death of the deceased Hemu Nishad was homicidal (Neurogenic shock due to blood clotting in brain and head injuries, per report Ex.P-18 of Dr. L. S. Prasad, PW-14); the trial court's finding on cause of death is affirmed.

¶29

Key takeaways

The testimony of the sole eye-witness PW-1 (widow of the deceased, mother of the appellant) is not safe to convict the appellant: she deposed in cross-examination (para-9) that she had not seen the alleged quarrel between the deceased and the appellant, and further (para-11) that her husband died of head injuries when he fell down on the floor.ratio¶34
The appellant is entitled to be acquitted from the charge framed against him by being given the benefit of doubt.ratio¶35

Detailed headnote1 paragraphs

Chhattisgarh HC (Bilaspur), CRA No.785 of 2017, decided 18/01/2024 (bench: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal; judgment per Sanjay S. Agrawal, J.). Appeal under Section 374(2), Code of Criminal Procedure, 1973 by Duleshwar Nishad against conviction under Section 302 IPC and sentence of life imprisonment with Rs.5,000/- fine imposed by the Sessions Judge, Mahasamund in Sessions Trial No.56/2015 (judgment dated 28.02.2017) for the alleged rock-stone killing of his father Hemu Nishad on 19/06/2015. Prosecution case rested on the sole eye-witness PW-1 (widow of the deceased, mother of the accused); six related witnesses turned hostile and the remaining witnesses were formal. In cross-examination PW-1 deposed (para-9) that she had not seen the alleged quarrel and (para-11) that her husband died of head injuries sustained in a fall. Held: cause of death affirmed as homicidal, but PW-1's testimony is 'not safe to convict' the appellant; the trial court's finding of guilt is unsustainable and the appellant is entitled to acquittal with the benefit of doubt. Appeal allowed; impugned judgment of conviction and order of sentence set aside; appellant to be set at liberty forthwith unless required in connection with any other case.

¶1

Page 1 of 8

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No.785 of 2017

¶5

Duleshwar Nishad S/o Hemu Nishad, Aged About 20 Years R/o Village-Mudhena, Police StationMahasamund, District- Mahasamund, Chhattisgarh

¶6

---- Appellant (In Jail)

¶7

Versus

¶8

State Of Chhattisgarh Through Station House Office, Police Station, City Kotwali, Mahasamund, District Mahasamund, Chhattisgarh

¶9

---- Respondent

¶10

(Cause title is taken from CIS)

¶11

For Appellant : Mr. Aman Kesharwani, Advocate. For Respondent/State : Mr. Arvind Dubey, G.A.

¶12

Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

¶13

Judgment on board (18/01/2024)

¶14

Per Sanjay S. Agrawal, J.

¶15

This appeal has been preferred by the accused under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) questioning the legality and propriety of the judgment of conviction and order of sentence dated 28.02.2017 passed by the learned Sessions Judge, Mahasamund, District Mahasamund (C.G.) in Sessions Trial No.56/2015, whereby, the appellant has been convicted for the

¶16

Page 2 of 8 offence punishable under Section 302 of I.P.C. and has been awarded imprisonment for life and to pay fine amount of Rs.5,000/-, in default of payment of fine, he has to undergo additional rigorous imprisonment for one month.

¶17

Briefly stated the facts of the case are that on 19/06/2015 at about 08 PM, the deceased-Hemu Nishad was sleeping in his house at Village Mudhena, Thana-City Kotwali, District Mahasamund and at that particular time, his son-Duleshwar Nishad, the appellant herein, came from outside and on seeing him, the deceased told him for marriage as he was spoiling his life, owing to which, the appellant-accused got annoyed and dragged him towards the courtyard and assaulted him many times with the aid of rockstone. On account of the alleged assault, the deceased-Hemu Nishad sustained serious injuries on his head, forehead, chest, rib and other parts of his body and was taken immediately to the District Hospital, Mahasamund, but, he succumbed to injuries during the course of his treatment. A merg intimation was thereafter registered based upon the information furnished by the said hospital on 20.06.2015 vide Ex.P-11 and FIR (Ex.P-15) was registered on the same

¶18

Page 3 of 8 date. Inquest of the deadbody was conducted on 20.06.2015 vide Ex.P-1. Spot map was prepared vide Ex.P-20. The dead body of the deceased was sent for autopsy, which was conducted by Dr. L. S. Prasad (PW-14), who opined vide his report (Ex.P-18) that the cause of death was Neurogenic shock due to blood clotting in brain as also on account of head injuries. The cause of death was, thus, opined by him, to be homicidal in nature. A rock-stone alleged to have been used in the alleged commission of offence, was recovered from the appellant on 21.06.2015 vide seizure memo (Ex.P-4) based upon his disclosure statement (Ex.P-3). The appellant was arrested on 21.06.2015 and the statement of the witnesses were recorded and after due investigation, the appellant was chargesheeted for the commission of offence under Section 302 of IPC and final report was accordingly submitted by the Investigating Officer before the Chief Judicial Magistrate, Mahasamund, who in turn, has committed the case to the Court of Sessions under Section 209 of Cr.P.C. for its trial.

¶19

The appellant has denied the charge so framed and claimed to be tried.

¶20

In order to bring home the guilt of the appellant, the

¶21

Page 4 of 8 prosecution has examined as many as 17 witnesses and produced 20 documents, Ex.P-1 to P-20, while none was examined by the appellant in his defence.

¶22

After considering the evidence led by the prosecution, particularly the statement of eye-witness namely Smt. Ram Kunwar Nishad (PW-1), who is widow of the deceased-Hemu Nishad, held that the appellant was the author of the alleged crime and, accordingly, he has been convicted for the offence punishable under Section 302 of IPC and sentenced as mentioned hereinabove.

¶23

Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal.

¶24

Learned counsel appearing for the appellant submits that the finding of the Court below holding the appellant to be guilty of the alleged crime based upon the statement of eye-witness namely Smt. Ram Kunwar Nishad (PW-1), is apparently contrary to law. It is contended further while inviting attention to para9 of her testimony that she has, in fact, not seeing the alleged incident, therefore, the conviction based upon her testimony, is bad in law and deserves to be

¶25

Page 5 of 8

¶26

quashed.

¶27

On the other hand, learned counsel appearing for the respondent/State has supported the impugned judgment of conviction and order of sentence as passed by the trial Court.

¶28

We have heard learned counsel appearing for the parties and perused the entire record carefully.

¶29

From perusal of the record, it appears that the autopsy of the dead body of the deceased-Hemu Nishad was conducted by Dr. L. S. Prasad (PW-14), who has submitted his report (Ex. P-18), while opining that the cause of death was Neurogenic shock due to blood clotting in brain as also on account of head injuries and accordingly, his death was found to be homicidal in nature. After due consideration of the said report (Ex.P-18), which is duly supported by the evidence of Dr. L. S. Prasad (PW-14), the learned trial Court has rightly arrived at a conclusion that cause of death of the deceased-Hemu Nishad was homicidal in nature and, we accordingly affirm the same.

¶30

It is now to be considered, as to whether the alleged crime was committed by the appellant or not ?

¶31

From perusal of the record, it appears that the widow

¶32

Page 6 of 8 of the deceased namely Smt. Ram Kunwar Nishad (PW-1) was the only eye-witness to the alleged crime and while taking note of her testimony, the trial Court has convicted the appellant for the commission of alleged crime. It is, therefore, necessary to examine her testimony, as testimony of her relatives namely Dukalhin Nishad (PW-2), Rohni Nishad (PW-3), Khilawan Nishad (PW-4), Narayan Nishad (PW-6), Firangi Nishad (PW-7) and Sukhram Nishad (PW-8) are of no use as they turned hostile without supporting the prosecution story, while the statement of other prosecution witnesses are formal in nature.

¶33

According to Smt. Ram Kunwar Nishad (PW-1), she was having meals on the fateful day along with her younger son namely Narayan Nishad and deceasedhusband-Hemu Nishad and at that particular time, the appellant, who is her another son, came to the house and assaulted her husband with rock stone on several times, owing to which, he sustained injuries on various parts of his body and was taken to the hospital, but, he succumbed to the injuries during the course of his treatment. It is stated further that since the appellant was beating her husband badly, therefore, she could not dare to intervene and ran

¶34

Page 7 of 8 away from the house and returned back after passing of the considerable time and by that time, other members of the family were gathered there, including the appellant-Duleshwar Nishad. She was, however, not found to be stuck in her cross-examination, as it was deposed by her in para-9 of her testimony that she has not seen the alleged quarrel, which occurred between them (Hemu Nishad and Duleshwar Nishad) and, deposed further at para-11 that her husband died because of sustaining head injuries when he fell down on the floor. Her statement, is therefore, not safe to convict the appellant for the alleged crime.

¶35

In view thereof, the finding recorded by the learned Court below holding the appellant guilty for the commission of alleged crime cannot be held to be sustainable in the eye of law and the appellant is entitled to be acquitted from the charge so framed, by giving him benefit of doubt.

¶36

Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 28/02/2017 passed by the learned Sessions Judge Mahasamund, District Mahasamund (C.G.) in Sessions Trial No.56/2015 is hereby set aside and the appellant shall be set at liberty forthwith, unless

¶37

Page 8 of 8

¶38

required in connection with any other case.

¶39

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

¶40

Compliance of this order be reported to the Registry of this Court forthwith.

¶41

S SD/SD/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

¶42

Tumane

Duleshwar Nishad v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Duleshwar Nishad v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Manwel Lakda @ Amanual Lakda Vs State Of Chhattisgarh

Horil @ Krishna Kumar Patel Vs State Of Chhattisgarh

Ramprasad Alias Ramu Vs State Of Chhattisgarh

Sukhram Karma Vs State Of Chhattisgarh

Keshav Agariya Vs State Of Chhattisgarh

Ramswarup @ Tengu Netam Vs State Of Chhattisgarh