^ 1/ ^') N CFb'000058068 -^ Ihnrf, ^^r^^ ?N THE HIGH COURT OF MADHYA PBADESH : JABALHJR -2. <> Cri.Appeal No,______/1994 J ^ -^ ^iied ^s-i. »ysu y-'S^»»W9— ^,-, -r^. ^.t- ^^'-/ ^.d:..^1 "•""—•'-^^ \-»«»,.<., /, R.toag, ^\^r-'2.^-\ APPELLANTS: IIN JAIL; ./.^ RESPONDENT 1A M^id'am son of Doisbuda Gond' aged 32 years,,. 2) Pustam son of DoiBbuda Gond aged 35 years, / ^))Dombuda son of Padman Gond, aged 1^/55 years, A1X resident of Kumhakla, Police Station - Deobog, District - Raipur (Madhya Pradesh) Versus y State of Madhya Pra^esh r CRIMINAL APPEAL UNDER SECTIGN 374i2J OF _THE_CODE_CT: CRIMINAL PROCEDURE 1973 A.^ ^^^L ^. HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 225 of 1994 APPELLANTS RESPONDENT VERSUS Madan and others State of Madhya Pradesh Shri B.D. Guru counsel for the appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2)0F THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (23.06.2010) This appeal is directed against the judgment and order dated 09.02.1994 passed by Additional Sessions Judge, Raipur in Sessions Trial No. 03/1992 convicting accused/appellants Madan and Dombuda under Section 307 IPC and accused/appellant Pustam u/s 307/34 IPC and sentencing them to undergo rigorous imprisonment for seven years. 2. Case of the prosecution in brief is that on the basis ofwritten report Ex. P-1 lodged on 6.8.1990 at about 10.40 a.m. FIR Ex. P-9 was registered on the same day at about 5.30 p.m. by complainant Gaurishankar(PW-l) alleging that on that day at about 11 a.m. when the accused/appellants were grazjng theircattle in his field, he had asked them not to do so and on this, the accused/appellants came there and started abusing, and then assaulted him with axe and club. 3. So as to hold the accused/appellants guilty, prosecution has examined 09 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. During the pendency of this appeal, accused/appellants Madan and Dbmbuda have expired and therefore, now this appeal is concerned with accused/appellant Pustam only. '.^.^" I ' 4. 5. Heard counset for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that in the FIR it is alleged that the main injury was caused by deceased/accused Madan and the allegation against the present appellant is that he had also assaulted the complaint with axe. It is submitted that in the Court statement the complainant has categorically stated that the accused/appellant was bare handed and was not having any weapon with him. He submits that the main accused namely Madan and Dombuda have expired during the pendency of this appeal. He submits that from the material available on record it is not clear as towhich particular injury was caused by the present appellant. Lastly, in the alternative he submits that the incident had taken place in the year 1990, that out of three, two accused/appellants have expired during the pendency ofthis appeal and that the physical and financial condition ofthe sole surviving appellant is pathetic, his sentence may be reduced to the period already undergone by him. 7. On the other hand counsel for the respondent/State supports the iudgmentimpugned and submits that the victim was brutally assaulted by the accused persons and fortunately due to timely medical treatment he has survived. According to him, the complainant has categorically stated that after snatching the axe from deceased/accused Madan, the present appellant had also caused injuries to him. 8. Complainant - Gaurishankar (PW-1) has stated in his evidence that on the date of incident at about 11 a.m. when he was going to his field to see the crop sown thereon, the accused persons were grazing their cattle and when he asked them to remove the cattle from his field or else he would take them to the cattle pond, they started abusing him. The complainant has stated that deceased/accused Madan was armed with axe, deceased/accused Dombuda with club and the third person was bare handed. According to him, first of all deceased/accused Madan assaulted him with axe on head and then after snatching the same from him present appellant Pustam assaulted him on left side of the neck and right side of iJ ^* lllfc- -s- head. Deceased/accused Dombuda is stated to have assaulted him with club on his back as a result of which he had fallen down and started bleeding. According to this witness, after he raised cries for help, one Jugeshwar and Premlal reached there and took him to policestation where report Ex. P-1 was lodged and then he was shifted to the hospital. However, in cross examination, several contradictions and omissions are there and that the things stated therein also do not tally with what have been stated in his statement recorded under Section 161 of the Code of Criminal Procedure on material particulars. This witness at one place has stated that aftersustaining injury he became unconscious and he regained consciousness in the hospital but later changing his version he has stated ihat he had merely fallen down and was writhing in pain but was not unconscious. Secondly, in his examination in chief he has stated that after being assaulted by the accused persons he had fallen down and when he raised cries for help, Jugeshwar and Premlal came there and took him to the police station but in cross examination he has stated that he was assaulted in presence of Jugeshwar and Premlal and they had even asked the accused persons not to assault him. Premlal (PW-2)—one of the eyewitnesses to the incident has stated that at the time of incident when he was going to the river to take bath, near the filed of Gaurishanakar he saw the accused Madan and Pustam assaulting him. According to him, first accused Madan had assaulted him with axe and then after snatching the same from him accused Pustam too made an assault. However, in respect of accused/appellant Dombuda, this witness has stated that he was not having any weapon nor did he indulge himself in assault. He has stated that after being assaulted, the complainant had fallen down and was bleeding profusely. He has stated that in the police station the complainant was not fully conscious and had narrated the incident to the police by speaking slowly. Things stated by this witness in his cross examination also suffer from contradictions and omissions. Another eyewitness Jugeshwar (PW-5) has stated in his evidence that when he along with Premlal (PW-2) was going to the river totake bath, after hearing the cries of the complainant when he reached the spot, he saw accused Madan assaulting him and then accused Pustam also assaulted him by snatching the axe from his hand and after being assaulted by them the complainant 1 ^ -^- had fallen down and thereafter his family members were called and he was brought home from where after calling the Kotwar he was sent to the police station. In the statement of this wifness also, contradictions and omissions find place in plenty. Dr. K.S. Banjare (PW-9) who had medicalty examined the complainant/injured has found four injuries on his body out of which two were on his head and forehead. Brindavan (PW-3) and Bhujbal (PW-4) - the witnesses to seizure of axe have not supported the case of prosecution and have been declared hostile. Sub Inspector S.K. Gangwal (PW-8) is the investigating officer and he has supported the case of the prosecution. 9. In his report the complainant has stated that some of the accused/appellants were grazing their cattle Jn the field of the complainant and when he protested against the same, there was some hot-talk between them which culminated in his assault. In the FIR this witness has stated that accused Pustam was also carrying weapon in his hand whereas in the Court statement he has stated that he was bare handed. He has stated in his evidence that after sustaining injury he had become unconscious and regained consciousness in the hospital but later changing his version he has stated that he had merely fallen down and was writhing in pain but had not become unconscious. According to him, after being assaulted by the accused persons he had raised a cry for help and on hearing the same Premlal and Jugeshwar had come there and took him to the police station but in cross examination he has stated that the accused persons had assaulted him after the arrival of the aforesaid two persons and that they had even asked him not to do so. Moreover, Premlal (PW-2) one of the eyewitnesses to the incident has stated that accused Dombuda was not having any weapon and nothing was done by him whereas the victim and other eyewitness Jugeshwar (PW-4) have stated that accused Dombuda too had assaulted the victim. Thus if overall material is looked into, none of the witnesses has stated consistently and the contradictions and omissions present therein, do not enable this Court to firmly form an opinion regarding maintenance of the finding of conviction of the sole surviving accused in this appeal. When there is nothing pin pointed against him, he must get the benefit of doubt. This apart, out of total three, two accused/appellants have already expired during the pendency of this ^..--^ v; / ^. i^ ?. '"15 J \^^.^ v'^^g?^t;'" -^~L appeal and when nothing specific has been stated against the sole surviving accused/appellant assigning any particular role against him, his conviction and sentence needs to be corrected. 10. In the result, the appeal is allowed. Impugned judgment dated 9.2.1994 is hereby set-aside. Accused/appellant - Pustam is acquitted of all thecharges levelled against him. Accused/appellant is on bail. Bail bonds stand discharged. Sd/- Pritinker Diwaker Judge Orsy