@ i CFoooobeosTs' ^^x" lOn Berr- 1N THE HIGH COURT OF 3U0ICATURE AT 3ABALPUR. Cr.A.iuL-/96 AppELt.Arr^ RESPONOENT $ 1<i Rohit^Ram Kanvar 8o^_^f Kerfda Ram J$aRvar</ aged abo^it 29'years^ cvltivatos| ^ . ; . .. . ^ _. - \ Namo Narayan G©r^d, ©OFI ©fOhoop Say , Gond, aged abosjt 36 y©ars^ Carper^ter ^Both r@sidep>ts of village Bela, ^Poiice-Stati@n BAtCO, Oistrlct" Bilasptir. -Versijs- ! The State of N*P« £RIfiINAL APPEAL UNDER 3ECTION374(2l CRIWNAL PROCEDURE COOE. .<^ /\ HI6H COURT OF CHHATTISGARH ^T 8ILASPUR Coram: Hon'ble Shri OhirendraMishraA Hon'ble Shri bilip ftaosaheb beshmukh, JJ. Crimjnal ApDeal No. 1611/96 Mohit ftam Kanwar and another Vs. The State of M.P. (now State of Chhatl-isgarh) Smt. Ranjana Jaiswal, learned counsel for the appellants. Shri Akhil AAishra, learned Panel Lawyer for the State. JU D^MENT (Delivered on 14-07-2006) Per Dhirendra Mishra. J. The appellants have preferred this appeal under Section 374(2) of the Criminal Procedure Code as they have been convicted under Section 302 and201 I.P.C. by learned 1st Additional Sessions Jud9e, gibspur in Sessions Case No.17/1994 vide his Judgment dated 31st August 1996 ond sentenced to undergo life imprisonment ond imprisonment for one year and fine of Ks.200/- and Rs-100/- each on each count and in default to undergo additional rigorous imprisonment for on@ month, 2. Case of the prosecution, in brief, is that Shiv Prasad Shukto P,W,9 gove missing information at the Police Station Balco informing that on 18.12.1991 at about 2.30 P.M his son Subhash Chandra Shukla had gone to Korba to purchase lott-ery tjcket by bicycle. However. he hos not returned since then, His younger son ^irish Chondra Shukb hod enquired from the lottery center where he was informed that Subhash Chandra did not come there. TTiereafter both the father and brother of the deceosed were making enquiries, He also mentioned ^ ^ 'Vh. Li^. ^ that the height of Subhash Chondra was 5 feet 6" and worn btack pant, discoloured shirt, white shoes and socks and was copable of speoking Hindi, He was carrying Rs.llOO/-. Thereafter, statement of Mongal Singh P.W.5 and Patiram P.W.6 was recorded on 30th October 1993. Memorandum statement of appelbnt Mohit Ram was recorded on 3.11,1993, in pursuonce of which sweater, blood stained white shirt, a pair of black shoes and eight pieces of bones were seized, On the memorandum of appellant-Namonarayan, the watch of the deceased was seized from his house. The seized bones were sent for autopsy to 100 Bed Hospital, Korba vide Ex.P.8(A). However, the bones alon9 with sweater, shoes brought in a sealed packet were returned to the Constable ond referred the same to Raipur Mediaxl College for final opinion. The seized articles were placed for identification by Executive AAagistrate S.K.Shrivastava P,W,8 ond vide identificotion memo Ex.P.ll and Shiv Prasad P.W.9 and Akhilesh Shukla P.W.ll identsfied the articles seized, to be that of the deceased Subhash Chandra. In the process merg intimation 6x,P,13, on information of B.P.Mishra, S.H.O. Balco Nagar, was registered. 3. Dchatf Nali^hf ExP,14 was also registered, on the information giyen by BP.Mishro. P,W<12. Seized articles i.e. sweater, shirt, shoes etc. were sent for chemical examination to F.S,L, Bibspur, Site pjan was also prepared by the HalkaPQtwaH Jhaduram Kaushik vide Ex.P.l. 4. After completing investigation, charge sheet was filed in the Court of Judicial Mogistrate First Cbss, Korba against the appellants under Section 302 and 201 IP.C, who in turn committ'ed the cose to th©Court of Sessions Judge, Bilaspur and the same was received on tronsfer for trial by the learned Additionol Sessions Judge, The learned Additional Sessions Judge framed chorges under Section 302 & 201 IP,C. against the Qppelloints who abjured their guilt, The ^\. prosecution in Order to ©stoblishthe charges against the appelbnts examined 12 witnesses in all. Ttiereafter statement of accused was recorded, The appeilants denied allegations levelled against them Jn the prosecution case and pleaded innocence and false implication. After hearing the public prosecutor and the counsel for the appellonts-accused, the learned Additional Sessions Judge has convicted the oppellonts ond sentenced them as above, 5. Leorned counsel for the appelloints submits 1+iat there is no evidence available on record to establish the deo.th of the deceased Subhash Chondra Shuklaas bones which have been allegedty recovered on the basis of memorondum of the appellant-AAohit Ram were sent for autopsy to Dr, Surjit Singh P.W»4 and from perusal of the statement of Dr. Surjit Singh, it is cleor that the bones sent to him for autopsy were further referred by him to the Raipur Medical College, for examination and thereafter there is no report from the Raipur M.edical College to show that the bones in question were in fact of human bei'ng much less that of the deceased-Subhash Chandra Shukb. She further ai*9ues that the conviction of the appellant is solely based on the testimony of P,W,5 Mangal Singh and P.W.6 Potiram who claimed themselves to be eye witnesses of the incident and on the olleged recovery of the bones, the sweater, shirt and shoes of the deceased. It is contended that the incident occurred on 18,12,1991, as per prosecution case and missing report was lodged on 7.1.1992 i.e. after almost 20 days and the statement of these witnesses was recorded on 30th October, 1993 i.e. more than two years after the incident. She further argues that the conduct of Mangal Singh P,W.5 and Potiram P.W.6 in not reportin9 the matt-er to the Police is highly unnatural, and therefore, the Court below was not /f i[--. justified in relying upon the evidence of these witnesses convicting the appellants on the basis of the same. 6. So far as memororsdum of recovery is concemed, it is pointed out that in the missin9 report, the father of the deceased had described that a.t the time the deceased proceeded for Korba, he was putting on black coloured pant, discoloured shirt, white shoes and socks and having Rs.llOOA with him, on bicycle, But the recovery, on the basis of the memorandum is, opart from 9 bones, half sweater and bla.ck shoes and white shirt and therefore, the above seizure does not corroborate the missing report and it is highly improbable that after two years of the incident, shirt worn by the deceased would be intact ond the so.me woutd be recovered. 7. On the other hand, learned Panel Lawyer, supports 1+ie impugned iudgment, 8, We have heard the learned counsel for the parties and ho.ve perused the impu9ned jud9ment. 9, From the record, we find that there is no evidence to show that the bones recovered on the memorandum of the appellont-Mohit Ram in any way are of the deceosed Subo.sh Chondra as there is no medical evidence on record to connect the bones with the deceased Subhash. It is also not clear whether the bones belonged to the humon being. If w®consider this aspect, we are left only with statement of P.W.5 Man9al Singh ond Patiram P.W.6 to reach the conclusion that on the date of incident i.e. 18,12.1991 the deceased was assaulted by the appellants in the forest, as a result of which, he died. 10. P.W.5 Mangal Singh has stated that some two years 5 mon1+is before the date of his examination in the Court one Shukla came to him at obout 10 P:AA. in the ni9ht ond woke him and asked that he has purchased one cot from Namonorayon ond it has to b@ taken to Balco ^J and he engoged me for this purpose for Rs,20/-. Apart from hiself, one Patiram was also engaged for the above purpose and thereafter he took them to the hous^ of Namonaraycin from where they took one cot each and and corried the same. Shukla was having bicycle. He was ahead of them and they were following him and were proceeding towards swan nafah. When they reached on the yalley near ^wan naloh Namonarayan <xnd AAohitram oppeared from the bushes and started assauiting Shukb with danda, Shukio shouted for help whereupon accused Mohit Ram said who will save him and also said by taking Mohua iiquor he insults his wife. Seeing the incident, he and Patiram (eft the cot there and fled away. On the following morning, Mohitram met him and threatened him not to disclose the incident and because of this threatening he did not disclose the incident. In 1+ie cross- examination, this witness stated that the pbce where the dead body was found, was some six miles (2 <^ away from the place where the incident occurred, the body was that of Shukla was opparent, His hand, leg, baek, stomach etc. were clearly identifiable. The deceased was putting on clothes, shoes, socks, sweoter etc, He ho.s further stated in paragroiph 10 that the incident occurred at 10.00 P.M. He has admitted that the father ond brother of the deceased had come to his village in search of their son, They had come thrice to search their son and also enquired from him and Patiram, upon which, he had expressed his ignorance regarding whereabouts of his son. He has further stated that father and brother of the deceased had asked that he along with Patiram had token one cot each from the house of Namonarayan olong with the deceased ShukJo to 90 to Balco and since then the deceased is not traceable and in reply to this, they had denied, H©has further stated that thereafter the Balco Police never called them oind he and Patiram did not tetl anything regardin9 the 6 murder to the Police and the Police after arresting Mohitram had calted them ond recorded their statement and then on that date he narrated the incident for the first time before the Town Inspector. 11. Patiram P.W.6 has stated that at night at 12 'O' clock he had gone with Subhash Shukla to Mohitram and Namonarayon for purchase of two cots, He and AAangal Singh were engaged for fts.20/" for corrying the cots upto the Balco, Thereafter, they proceeded to Bolco carrying cots, Subhash Chondra Shukla was accompanying. When they reached near Suyar river, the appeltants who were hiding jn the forest came out and assaulted Subhash Shukb and after sometime Mohitram stated that he is dead, After hearing the same, he along with Mangal Sin9h fled from the spot leaving the two cots and in the morning the accused-persons came to him and threatened not to disdose the incident to anyone or else they will kill him< Out of this fear, he did not disclose the incident to osnyone and for this reason MangQl also did not disclose the incident to anyone and on that day Subhash Shukla died. He has also stated that the pieees of bones were foynd t^?o-three Kos (six to nine miles) awoy from the pfoce where quarrel took place ond they had stated that the bones belong to Subho^h Shuklo, He has also stated in paragraph 8 that father of the deceased came to them and enquired about his son to which he replied to the father of the deceased that out of fear he is not knowing anything oind he has also informed that AA-ohitram had threatened him, therefore; I am saying that I don't know anything ond he had stated about the incident on the very next day when the father and brother of deceased had yisited to his villo^e, 12, Thus, if we scrutinize the <statem©ntof these two witnesses, we hove no hesitation in comin9 to the conclusion that these witnesses are not stoting the true facts as they keep quiet for a considerable period of two years, They claimed that they stoted the names of the appellants to the father ond brother of the deceased, the very next day of the incident. One of them Man9alsin9h stated that the body of the deceased was identifiable and he was putting on clothes which is falsified from the recovery of the bones and the statement of Dr. Surjit Sin9hP.W.4. 13, On the basjs of aforesaid discussion, w©are of the considered opinion that finding of the Court below that the prosecution has ©stablishedits case against the appellants that they caused the death of deceased-Subhosh Chandra Shukla is erroneous and th©same is based on misappreciation of the evidence of the witnesses i-e, Mangal Singh P.W.5 and Patiram P.W.6. The glarin9 inconsistency present in the statements of these witnesses has been over looked. For these reasons no reliance could be placed on their statement. 14. In 1+ie result, the appeal preferred by the oppellants succeeds. The impugned judgment of the tearned Additional Sessions Judge convictin9 the dppellants under Section 302 & 201 of the I.P.C. and sentencing them to undergo imprisonment for life and imprisonment for one year with fine is set aside and the appellants are acquitted of all chorges. The appeilants-Mohitram shall be set at libert/ forthwith. if not required in ony other cose, Appellant No.2-Namonarayan js on bail and his baii bonds are cancelled. Sd/- Dhirendra Mishra Judge Sd/- Dilip Raosaheb Deshmukh Judge ..A^i^c