RATAN BHAIYNA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the impugned judgment of conviction and order of sentence dated 11-02-2013 passed by the Additional Sessions Judge, Pendra Road, District Bilaspur in Sessions Trial No.23/2012, whereby and whereunder the appellant has been held guilty for commission of offence under Section 302 of IPC and sentenced him, as described below

(2.) The prosecution story, as unfolded from the impugned judgment and records of the case is that the appellant was residing in the house of Shiv Prasad Bhaina, PW-1. It is said that on the date of incident, father-Shiv Prasad Bhaina had gone to the fields and when his wife Phulkunwar came from another village, house was found locked, then she had gone to the fields to call her husband and lock was opened and thereafter, they found that daughter Sadhna was lying dead in bloodbath. Apparently, she was lying injured and several injuries were seen. The matter was reported to the police. The police swung in action. FIR was recorded and inquest over the dead body was prepared and dead body was sent for postmortem and statement of persons acquainted with the case were recorded under Section 161 Cr.P.C. The appellant was also taken into custody and it is said that the discovery statement was recorded in his presence and thereafter, upon disclosure made by the appellant, an axe alleged to be used in commission of offence and the key of the lock, by which, house was locked, was recovered. Upon filing of the charge sheet, the appellant was put to trial by framing of charges. The appellant was charged of having committed offence of murder of Sadhna. The appellant denied the allegations and he was put to trial. The prosecution led evidence to prove that the appellant was residing along with Shiv Prasad Bhaina and the deceased and further that on the date of incident, the appellant and the deceased were left behind in the house by Shiv Prasad Bhaina, PW-1 and later on, house was found locked. The prosecution also led evidence that at the time when Phulkunwar, PW-2, wife of Shiv Prasad Bhaina, came from another village at about 11 AM in the morning, she saw that the appellant running away from the courtyard as also she overheard cry for help from inside the house. Relying mainly on the evidence that the appellant and the deceased were alone left behind in the house by Shiv Prasad Bhaina, PW-1 and thereafter, Sadhna was found dead, it proved to be homicidal death and that the conduct of the appellant was also incriminating circumstances, conviction was ordered.

(3.) Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the circumstantial evidence led by the prosecution is not only weak, but also suffers from serious doubts as well as contradictions. He argued that the story as stated in the FIR by Shiv Prasad Bhaina, PW-1 is different from what has been stated in the Court and in fact, he does not depose in the Court that when he came back to the house, he saw the appellant either present or running away from the spot. The evidence of Phulkunwar, PW-2, mother of the deceasedSadhna also does not prove that she had actually seen the appellant giving any assault and her statement that she saw the appellant running away, is contradictory from her own statement in examination in chief. Merely because, the appellant was working with the Shiv Prasad Bhaina as his labourer and was provided the residential corner in the house, that by itself, without anything more, would not bring home the guilt of the appellant on the ground that he was residing along with him. Learned counsel for the appellant also highlighted the statement of Phulkunwar, PW-2, mother of the deceased-Sadhna that when she came to the house, she saw the appellant running away from the courtyard and simultaneously overheard cry for help from inside the house, is absolutely improbable, because of her own unnatural conduct. The prosecution, it is contended, has not proved that this witness rushed for help or attempted to break open the door. Despite hearing cries from inside the house, she had gone to the agriculture field to call her husband and then both of them returned back, itself renders the testimony of this witness doubtful and not credit worthy. It is lastly submitted that as far as recovery part is concerned, Phulkunwar, PW-2 has stated that an axe was found lying inside the house and even if it is accepted that the key was recovered at the instance of the appellant, without any proof that the lock was seized from the house, could be opened from the key, by itself would not be incriminating evidence. He also submits that the prosecution has failed to prove any strong motive as to why the appellant would kill Sadhna with whom his marriage was fixed and he was living as Ghar Jamai with Shiv Prasad Bhaina and his family.