'.fe-'^ 7'»>-v. HiGH COURT OF CHHATTISGARH : BILASPUR :~\- DIVISION BENCH: HON'BLE SHRE T.P.SHARMA AND' HON'BLE SHRI R.LJHANWAR. JJ. ^nnii iij«i», APPLICANT APPELLANT RESPONDENTS CriminaE appeaj No. 705 of 2005 The State of Madhya Pradesh (now State of Chhattisgarh) VERSUS 1. Aditya Bani, aged about 18 years, son of Lakhanlal Bani, resldent of Rani Road, Champa, Poiice Station Champa, at dpresent Sector - 2/825 Baico, P.S. Baico DistrictKorba (M.P. nowC.G.) 2. Sandeep Sahi, aged about 20 years, son of Shamsher Bahadur Sahi, resident of Gader Police Station Bhaiwani, District Devaria (U.P.) at present ~ Sector 1/8/131 Balco P.S. Balco District Korba (M.P. now C.G.) 3. Krishna Singh (Sahi) aged about 20 years, son of R.N. Singh, resident of Rakpur (U.P.) at present resident of Baico, P.S. Baico, District Korba (M.p. nov^C.G.) 4. Shashibhushan Singh, aged about 20 years/son of Bramhendraprasad Singh, resident of Dharampur, Police Station Chunar, Disrict Mirjapur (U.P.), at present resident of Sector 2/B/135 Baico, P.S. Balco, District Korba (M.P. now C.G.) APPUCATION FOR GRANT OF LEAVE TO APPEAUJNDERSECTiON 378 (3i AND EVJER40 OF APPEAL UNDER SECT10N 378 f1 ) OF THE CODE OF CRiEVEINAL PROCEDURE. 1973 Appearance: h/Ir. D. K. Gwaire, G.A. forthe State/appeiEant. Shri Vjvek Shrivastava, counsei for respondents No. 1 & 4. Smt. Fouzia Mirza, counsel for respondents No.2 & 3. ORAL JUDGMENT (Passedon 17.03.2011) By this appea! under Section 378 (1) and 378 (3) of the Code of Criminal Procedure, 1973, the State has challenged the judgment of acquittai dated 27.11.1999 passed by the Specia! Judge under Scheduled ^'--^ // ^' ' ^ Caste and Scheduied Tribe (Prevention of Atrocities) Act, 1989 (for short 'the Act of 1989'} in Special Criminal case No. 65/1998 whereby the Speciai Judge under Atrocities Act has acquitted respondents of the charges under Section 302, 302 / 34 of the I.P.C. and 3 (2) (v) of the Act of 1989. 2. Acquittai is chailenged by the State on the ground that whiie acquitting the respondents, the Court below has not considered the evidence adduced on behalf of the prosecution which is suffioient for conviction of the respondents for the offence punishable under Section 302, 302/34 ofthe I.P.C. and 3 (2) (v) ofthe Act of 1989. 3. As per case of the prosecution, on 30.11 .1998 at about 11 A.M. at Minimata Scool, Balco, the deceased Lalit Khaico was badly assaulted bys the present respondents, due to which, he fell down and became unconscious. He was immediateiy shlfted to hospital. P.W.8 Sandeep B. Huwa! went to police station and lodged F.J.R. vide Ex.P.10. He was treated by Dr. Smt. Vinita Kumar P.W.1 and after that Lalit Khaco was referred to Dr. Arun Kumar Shrivastava P.W.12. During the course of treatment, the deceased Lalit Khaco succumbed to injuries. Merg intimation was recorded vide Ex.P.14. The investEgating officer, after summoning the witnesses vide Ex.P.8, prepared inquest over the dead body vide Ex.P.S. Dead body was sent for autopsy to Government 100 Bed Hospital, Korba vide Ex.P.15. P.W.5 Dr. A.D. Purena conducted autopsy vide Ex.P.6 and found following injuries: 1. Contusion of 2 x 1 cm over occipital region. 2. Contusion of4 x 4 cm. over right parieta! region. BIood was coming out from right ear. 3. Contusion of 8 x 8 cm. over right jaw. 4. Abrasion of 4 x 3 cm. over left !eg and 3x2 cm. over Eeft knee joint. 5. Abrasion of2 x 2 cm. along with contusion over left jaw. 6. Abrasion of2 x 2 cm. along with contusion of 8 x 6 cm. over rightjaw. 7. Parietai and occipitai bones were found fracture. Death was homicida! in nature. '•~>-. T^" During the course of investigation, respondent Sandeep Sahi was taken into custody, he made disciosure statement of rod vide Ex.P.2, the same was recovered vide Ex.P.3. Bloodstained soii and plain soil were recovered from the spot vide Ex.P.4. BIoodstained cloths of Laiit Khaico was seized vide Ex.P.5. 4. Statements of witnesses under Section 161 of the Code of Crimina! Procedure, 1973 (for short 'the Cbde') were recorded. After completion of Envestigation, charge sheet was fited before the Speciai Judge constituted undertheActof1989. 5. ln order to prove the guilt of the respondents, prosecution has examined as many as 13 witnesses. The accused respondents were examined under Section 313 of the Code where they denied the circumstances appearing againstthem. 6. After providing opportunity of hearing to the parties, the learned Speciai Judge acquitted the present respondents of the charges under Section 302, 302/34 of the i.P.C. and 3 (2) (v) ofthe Act of 1989. 7. Shri D.K.Gwaire, iearned counse! for the appeliant, Smt. Fouzia Mirza and Shri Vivek Shrivastava, learned counse! for the respondents heard. Perused the judgment impugned and record of the Court below. 8. Learned counsei for the appellant/State vehemently argued that evidence of P.W.7 Sushri Laiita Xalxo to whom the deceased Laiit Khalco made dylng decfaration is sufficient for conviction of the respondents who caused homicidai death to La!it Khalco whereas the Court below has rejected the evidence of aforesaid witness and thereby committed illegality. The evidence adduced on behalf Jf the prosecution is sufficient for drawing an inference that the present respondents were present on the spot at the time of incident for commission of gruesome murder of Lalit Khaico. 9. On the other hand, iearned counsel for the respondents opposed the appeal and submitted that prosecution has not adduced any evidence to connect the respondents in crime in question and in the absence of any "~v A \ ^ '^ ^ evidence the Court below has rightiy acquitted the respondents of ali the charges. 10. in order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death of Lalit Khaico has not been substantialiy disputed by the respondents, on the other hand estabiished bythe medical evidence ofP.W.5 Dr. A.D.Purena and autopsy report Ex.P.6. 11. As regards the sufficlency of the evidence for compllclty of respondents in crime in question, except P.W.7 Sushri Lalita Xalxo, other witnesses have not supported the case of prosecution. As per her evidence, the deceased made ora! dylng deciaration to her at Hospltai but this fact finds support from the previous statement recorded under Section 161 of the Code, exhibited as Ex.D.2. As per Ex.D.2, Lalit Khaico was unconscious and he was not in a position to talk. 12. !n these circumstances, the uncorroborated evidence of P.W.7 Sushri Lalita Xalxo is not sufficient for drawing any inference against the respondents. Whiie convicting the respondents, the Court below has not committed any ilEegaiity. 13. We do not find any ground for interference in the judgment of acquittal. Consequently, the appeal being devoid of merit is liabie to be and is 14. herebydismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^