LAKHU @ LOKNATH Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the impugned judgment of conviction and order of sentence dated 27-07-2012 passed by the Second Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.01/2011, whereby and whereunder the appellant has been held guilty for commission of offence under Section 302 of IPC and sentenced to undergo life imprisonment as also imposed fine of Rs.100/- and in default of payment of fine, to undergo additional R.I. for three years.

(2.) The prosecution story, as unfolded from the impugned judgment and records of the case is that a merg intimation vide Ex.P-4 was lodged by Jalandhar, PW-4 at about 10.25 hours on 18-10-2010 stating that the appellant- Lakhu quarreled with his father at about 7 PM in the evening on 17-10-2010, because the deceased-Nando was not prepared to share goat meat with the appellant. In the merg intimation, it was further recorded that in the quarrel, the appellant pushed Nando on the ground and gave kick blow on his chest, due to which, his father started bleeding and later on, died in the house. Having receiving intimation of death, the police registered offence under Section 302 IPC against the appellant at the same time. The contents of FIR, Ex.P-5 was similar to what was recorded in the merg intimation, on the basis of intimation given by Jalandhar. Inquest over the dead body was prepared vide Ex.P-8 and the dead body was sent for postmortem on the same day. Dr. Pradeep Baghel, PW-9 conducted postmortem and prepared his report in Ex.P-8. According to the opinion given by doctor, cause of death was internal haemorrhage due to rupture of right lung lower lobe and liver. According to the doctor, nature of death was homicidal in nature and duration of death was 9 to 10 hours before the time of postmortem. After completion of usual investigation, charge sheet was filed before the Jurisdictional Magistrate, who in turn, committed the case to the Court of Sessions for trial. On the basis of the material contained in the charge sheet, learned Sessions Judge framed the charges against the appellant, alleging that the appellant murdered the deceased and thereby committed offence under Section 302 of IPC. The appellant abjured guilt and he was subjected to trial. In order to prove its case, the prosecution examined as many as 13 witnesses. The appellant was also examined under Section 313 Cr.P.C. in respect of incriminating evidence and circumstances appearing against him in the evidence led by the prosecution. The appellant having denied those incriminating evidence and circumstances, stated in his defence that he was falsely implicated in the case and he is innocent. No defence witness was examined. Relying upon the prosecution witnesses, learned trial Court held the appellant guilty of commission of offence as described above, giving rise to this appeal.

(3.) Learned counsel for the appellant argued that the prosecution has failed to prove its case beyond reasonable doubt in as much as there is no eye witness to the incident and the prosecution case of appellant having assaulted the deceased with the stone is not based on any cogent and reliable evidence. Taking further, it was also argued that the story of oral dying declaration given by Nando to his son-Jalandhar, PW-4 was an afterthought, based only on suspicion of involvement of the appellant in the incident, because the appellant allegedly had demanded share of goat meat collected by the deceased-Nando. Further submission is that the evidence of Ghinai, PW-7 is not at all reliable and she is a concocted witness as neither Jalandhar, PW-4 nor Budhru Ram Kashyap, PW-5 speaks of her presence at the spot. Next submission is that no stone allegedly used by the appellant, has been recovered from the spot, which further dilutes the credibility of the prosecution story of the appellant having pulled down the deceased and throwing stone on his chest. Learned counsel for the appellant also submitted that no external injury was found on any part of the body of the deceased and in the cross-examination, the doctor has stated that the nature of internal injury i.e. rupture of right long lower lobe and liver could be caused due to fall on any hard object. Therefore, the prosecution story becomes highly doubtful that the appellant had caused any injury to the deceased. The first alternative submission is that even if it is held that there was any quarrel between the appellant and the deceased on the issue of sharing of goat meat and the appellant gave kick blow, in the circumstances of the case, it cannot be said that either there was any intention to cause death or knowledge that kick blow would result in death. Therefore, in these circumstances, no case for commission of offence under Section 302 of IPC is made out against the appellant and the appellant at the most is liable to be convicted under Section 323 of IPC. Second alternative submission is that even if it is accepted that the appellant had knowledge that the deceased had received injuries by falling on a stone, which is likely to cause death, at the most, it would be a case of commission of offence under Section 304-II of IPC. The appellant having already undergone imprisonment for more than 6 years and 4 months before suspension of sentence and grant of bail, the impugned judgment of conviction and order of sentence be altered to that under Section 304-II of IPC for the period already undergone by the appellant.