KADATIAAYATU Vs. STATE OF C.G,

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dtd. 23/12/2016 passed by learned Sessions Judge, Dakshin Bastar Dantetwada (CG) in ST No.341 of 2011 whereby and whereunder the appellant has been held guilty of commission of offence punishable under Ss. 302 IPC and sentenced to undergo life imprisonment with fine of Rs.100.00 and in default of payment of fine, additional RI for 1 month.

(2.) The prosecution story, as unfolded from the records of the case is that on 7/5/2006, at about 7:00 pm in the evening, the appellant came to the house of Smt. Sukli Bai (PW1) and asked for food and when she denied stating that no food was left, it is alleged that the appellant assaulted deceasedGanesh, son of Smt. Sukli Bai with the help of an axe on the neck resulting in grievous injury, excessive bleeding and death. Matter was reported to the police station, on the basis of which, morgue in Ex.P-7 and FIR in Ex.P-8 were recorded at 12:30 noon on 8/5/2006. In the FIR, Smt. Sukli Bai (PW1) stated that the appellant came to the house in the evening, asked for food and when he was informed that no food was left, he assaulted her son Ganesh with the help of an axe resulting in deep neck injury and death of his son. After preparation of inquest over the dead body, the dead body, it was sent for postmortem where Dr.G.S. Dhruv (PW7) conducted postmortem and prepared postmortem report in Ex.P-5, wherein he opined that cause of death was excessive bleeding because of deep injury. Death was clearly stated to be homicidal in nature and time of death stated to be 15 to 30 hrs. prior to postmortem. The appellant was directly named by the FIR informant and eyewitness Smt. Sukli Bai (PW1). He was arrested and charge sheet was filed. Case was committed for trial. Appellant was charged of commission of offence under Sec. 302 IPC which he denied and, therefore, he was put to trial. In order to prove its case, the prosecution examined number of witnesses as eyewitnesses. Axe was seized from the spot and query report from Dr.G.S. Dhruv (PW7) was also obtained to the effect that injury could be caused by the said axe. Appellant was also examined under Sec. 313 Cr.P.C. in respect of incriminating evidence and circumstances appearing against him. The appellant denied having committed the offence. No defence witness was examined. Learned trial Court, relying upon the evidence led by the prosecution particularly the eyewitness account, nature of injury, held the appellant guilty of commission of offence of murder, leading to this appeal.

(3.) Assailing legality and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant would firstly argue that the prosecution case is doubtful because there was delay in lodging FIR. He would next argue that even if the evidence of prosecution witnesses who claimed to have seen the incident is accepted as it is, the scope and ambit of criminal overt act of the appellant would not travel beyond Sec. 304 IPC as the incident happened all of sudden when the appellant was not provided food. He would argue that the evidence on record clearly shows that the appellant had sold his entire property and a part of it was also purchased in the name of deceased Ganesh and the appellant was dependent on deceased and his family and he used to take meals with them. The only reason for opening assault was anger because of denial to provide food and, therefore, it was an incident which happened all of sudden and the appellant was not with any premeditation. It was only one single injury caused on the deceased with the help of axe and the injury was not repeated. He would argue that this sudden act out of anger was without any intention to cause death. Therefore, the conviction of the appellant be altered to that under Sec. 304 Part-II and as the appellant has undergone 10 years of jail sentence by now, he may be released.