1 2025:CGHC:3829-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 735 of 201 9 (Arising out of judgment dated 28.03.2019 passed in Sessions Trial No. 64/2018 by the learned Sessions Judge, Gharghoda) Kurso Yadav @ Kurso Ram Yadav S/o Jethu Ram Yadav aged about 46 years, R/o Village Kanjinala, Police Station Dharamjaigarh, District – Raigarh, Chhattisgarh. ---Appellant (In jail) Versus State of Chhattisgarh, Through – Station House Officer, Police Station – Gharghoda, Civil and Revenue, District – Raigarh, Chhattisgarh. ---Respondent For Appellant :- Mr. Ajeet Kumar Yadav, Advocate For State-Respondent :- Mr. Vivek Mishra, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (22.01.2025) Sanjay K. Agrawal, J. 1. This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned Digitally signed by HEERA LAL SAHU Date: 2025.01.24 10:28:04 +0530 2 judgment of conviction and order of sentence dated 28.03.2019, passed by learned Additional Sessions Judge, Gharghoda, District - Raigarh (C.G.) in Sessions Trial No. 64/2018, whereby the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for two months. 2. The case of the prosecution, in short, is that on 26.07.2018, 10:30 am, in village Ranidhap Kanjinala, Police Station Dharamjaigarh, District – Raigarh, the appellant assaulted Balmoti (Now deceased), by means of iron axe, due to which, she suffered grievous injuries and died, thereby, committed the aforesaid offences. 3. Further, the case of the prosecution in a nutshell, is that on 26.07.2018 at 15:30 hours, complainant Govind Yadav (PW-1) informed to the police that his mother Balmoti had gone to the field to graze the buffaloes at 08:00 am on the said date. When he (complainant) was returning home from his field, he saw the said buffaloes grazing in someone else's field, then he brought the said buffaloes home. The mother (deceased) of the complainant had not reached home, so the complainant inquired about his mother Balmoti from the people around and his wife. Thereafter, 3 the complainant went to Ranidhap field to find his mother and there he saw that his mother Balmoti was lying near the edge of the bush near the boundary of his field and there were injuries on her head, face and cheek caused by some weapon, due to which blood was oozing out and mother Balmoti had died. Thereafter, the complainant informed the people working in the neighboring fields about the above and after coming home, he told his wife. On the basis of the information Merg Intimation was registered vide Ex.P-1 and FIR was registered vide Ex.P-2. Inquest was conducted vide Ex.P-12 and the dead body of the deceased was sent for postmortem examination which was conducted by, Dr. V.K. Lakda (PW-8) vide Ex.P-9 in which the cause of death was opined to be cardio-respiratory failure due to hemorrhagic shock (excessive bleeding) as a result of multiple skull fracture and the nature of death was homicidal. The appellant-accused was arrested vide Ex.P-8. Memorandum statement of the appellant was recorded vide Ex.P-4, pursuant to which, weapon of offence i.e. axe was seized vide Ex.P-5 and sent for chemical examination to FSL. In FSL report (not exhibited), blood was found on the axe (Article-C). After due investigation, the appellant was charge-sheeted for the aforesaid offence before the jurisdictional criminal court and the case was 4 ultimately committed to the Sessions Court, for trial and its disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 15 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has examined only 3 witnesses (DW-1 to D-3). 5. After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offences punishable under Section 302 of I.P.C. and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant. 6. Learned counsel for the appellant submits that the eyewitness Shivlal (PW-11) is not a reliable witness, he has not seen the incident, and he has falsely implicated the appellant as he did not report the matter to the police and 5 did not inform to panch or sarpanch of the village and remained silent. Even, though he did not inform his wife as his wife has informed the matter to Tulsi Yadav (PW-2), the wife of the deceased’s son Govind Yadav (PW-1), as such, he has not seen the incident and the conviction of the appellant is not sustainable in the eye of law. Hence, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offences under Section 302 of I.P.C. is well merited, as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question for consideration is, whether the death of deceased was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-9 proved by Dr. V.K. Lakda (PW-8) that the death of the deceased was homicidal in nature, which is a finding of fact 6 based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 11.Now, the question would be whether the appellant is the author of the crime in question? 12. The instant case is based on the testimony of eyewitness Shivlal (PW-11) who is said to have witnessed the incident in which the appellant assaulted Balmoti (deceased), by means of iron axe. However, a careful perusal of the deposition of Shivlal (PW-11), admittedly, para-4 would show that he did not inform the matter to police up till 29th July and the date of offence was 26.07.2018 and the matter was also not informed by him to the panch or sarpanch or other member of the village. Even, Sushila (not examined), wife of Shivlal (PW-11) has informed Tulsi Yadav (PW-2) wife of the deceased’s son Govind Yadav (PW-1) that some unknown person has killed Balmoti (deceased). The fact of not reporting the matter to the police or any competent officer, and making a statement before the police three days after the incident, makes his (Shivlal) statement doubtful and more particularly, his wife (not examined) informing the same day to Tulsi Yadav (PW-2) about the incident goes to show that he (Shivlal) is not an eyewitness of the incident and the prosecution has projected him as eyewitness, which cannot be accepted and cannot be relied 7 upon. Thereafter, what remains is the motive, which has been found proved by the learned trial court. Since the appellant had a relationship with Balmoti (deceased) and prior to the date of offence, Balmoti (deceased) had ended up her relationship with the appellant and had not invited him to her son Govind’s marriage and therefore, the appellant was annoyed and unhappy with Balmoti (deceased), the same cannot be accepted as strong and adequate motive, so as to base conviction that too for an offence of murder. However, Hulaso Yadav (PW-3) has stated that she had seen the appellant having an axe in his hand near water drainage, but merely on the basis of the appellant having an axe, it cannot be held that the appellant was guilty of the offence as the appellant is a villager engaged in the agricultural work and in the village it is very common to have an axe when they go to the field. In that view of the matter, the appellant is liable to be acquitted on the basis of benefit of doubt. 13. Accordingly, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offence under Section 302 of I.P.C. is hereby set aside and he is acquitted of the said charge. Since the appellant is in jail from 29.07.2018, we direct that he be 8 released from jail forthwith, if not required in any other case. 14. Accordingly, this Criminal Appeal is allowed. 15. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence be also supplied with a copy of this judgment, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu