CF00000591 38 ‘ |||ll|1l|||||||||||HI||IH||||||| [ IN TIE [41% COURT OF Wm PRADESH 3 JAB$9U§ Criminal Appaai tic. [Q' 19§0 'RPPE I 1m 3M1) 3:13 Beg. s/O Hagan Bog. agaa about n z 29 yar n/oahmad naga: mum, cwca s . hun mam. uh. chnawani Matt. mm. Vermao RES?0WENT£ me state. of M‘Pé camnm. 599m u/a 374m a? m cont or ‘cazm GG; DE $.- W m @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1041 of 1990 APPELLANT Aziz Beg S/o Hasan Beg VERSUS RESPONDENT State of Madhya Pradesh. Shri S.C. Verma counsel for appellant. Shri Vaibhav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. . JUDGMENT (13.04.2010) This appeal is directed against the judgment dated 6.10.1990 passed :by Additional-Sessions Judge, Durg, in Sessions Trial No. 22/1989 convicting the accused/appellant for the offence punishable under Section 304 (Part ll) IPC and sentencing him to undergo rigorous imprisonment for seven years. 2. Case of te prosecution in brief is that on 6.9.1987 at 10.10 p.m. FIR (Ex. P-1) was lodged by Sheikh Lal (PW-1) alleging that on that day at about 9.15 p.m. accused/appellant and five other accused persons had assaulted him and his brother Sheikh Rahim. Further case of the prosecution is that on account of the injuries sustained by Sheikh Rahim, he died. On 29.10.1987 the police had filed challan against the six accused persons namely Hasan Beg, the appellant herein, Ashfaq Beg, Samlra Beg, Shahnaj alias Chini and Mustaq Beg for the offences under Sections 341, 294, 323, 307 and 302 IPC. The Court below framed charge against accused Hasan Beg u/s 302 IPC, against the present appellant u/s 302, against Ashfaq Beg u/s 302/34, against Samira Beg u/s 307/34, against Shahnaj alias Chini u/s 307/34 and against Mustaq Beg u/s 302 of~the Indian Penal Code. 3. So as to hold the accused/appellant guilty, prosecution has examined 16 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 of the Code h ’ " I vm’br' @ of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false impiication in the case. —2_ 4. After hearing the parties the trial Court has acquitted the other accused persons of the charges levelled against them. Accused/appeiiant has also been acquitted of the charge under Section 302 IPC but has been convicted and sentenced as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that allegation against the accused/appellant and the other accused persons who have been acquitted by the trial Court are almost similar and that when on the same set of evidence accused Hasan Beg, Ashfaq Beg, Samira Beg, Shahnaj alias Chini and Mustaq Beg have been awarded acquittal, the present appellant should also have been accorded the same relief. He submits that from the statements of the eyewitnesses i.e. Sheikh Lal (PW-1), Sheikh Ayyub (PW—3), Sheikh Abraham (PW-4) and Durgesh (PW-5), it is clear that deceased Sheikh Rahim was assaulted by number of persons and none of the witnesses has specifically stated that his death took place on account of the injuries caused by the accused/appellant. He submits that unless the prosecution proves its case that death of deceased Sheikh Rahim was caused only as a result of injuries caused by the accused/appellant, he cannot be convicted for the offence under Section 304 (ll) IPC. In addition to this, according to the counsel for the appellant there are many discrepancies in the statements of the eyewitnesses and therefore, benefit of doubt has to go to the accused/appellant. a 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the main injury was caused by the accused/appellant, the Court below has already taken a lenient view in convicting him under Section 304-ll IPC. @ 8. Sheikh Lal (PW-1) — the lodger of the FIR has stated in his evidence that when he had returned from the shop, he saw the accused persons and the deceased conversing with each other regarding the theft of a cart belonging to the accused persons. On seeing this, he sent the deceased home and proceeded to attend some meeting. While he was on the way, accused Ashfaq came and gave two club blows on his head. Thereafter accused Mustaq Beg also assaulted him on his back. According to this witness, on hearing commotion deceased Sheikh Rahim also came over there and then the accused persons started sprinkling chilly‘ powder on both of them. Thereafter, the present appellant and accused Asfaq Beg assaulted the deceased with a rafter and accused Hasan Beg assaulted him with a rod as a result of which he fell down and started bleeding profusely. According to this witness, Sheikh Rahim died on the second day in Government Hospital Durg. Deposition of this witness particularly paragraphs 11, 12 and 14 thereof goes to show that there are material contradictions and omissions in the same as compared to the FIR and the statement recorded under Section 161 of the Code of Criminal Procedure. Evidence of this witness does not disclose clearly as to which injury was caused to the deceased by the present appellant and that it is as a result of the injury Caused by him he died. This witness has only stated that the present appellant and accused Asfaq Beg had assaulted the deceased with a rafterrwhereas the other accused persons had assaulted him with rod. Ajij Bhai Memon (PW-2) one of the eyewitnesses has not supported the case of the prosecution and has been declared hostile. Sheikh Ayyub (PW-V3) has stated in his evidence that when he reached the spot, :he saw accused Samira Bi and Shahnaj alias Chini sprinkling chilly powder on the deceased and injured Sheikh Lal. This witness has stated to have seen accused Hasan Beg assaulting the deceased with iron rod on his head and back, the present appellant with rafter on ‘his head and accused Mustaq Beg with club on his head and back. According to this witness, as a result of injuries the deceased fell down and accused Asfaq Beg continued assaulting him even thereafter. in the statement of this witness also there are material contradictions and “3‘ _L{__ omissions. Similar statement has been made by Sheikh Ibrahim (PW-4) and Durgesh (PW-5). Dr.Suryaprakash Saxena (PW-14) who had conducted the post mortem examination on the body of the. deceased has stated that he noticed two injuries on the head of the deceased. Post mortem report given by this witness is Ex. P-29. 9. Having gone through the material available on record fl particulariy the evidence of the witnesses, what appears to this Court is that the deceased was assaulted by the present appellant and other accused persons also. Appellant herein and accused Asfaq Beg have allegedly assaulted the deceased with rafter whereas the other accused persons assaulted him with club and iron rod. None of the witnesses has stated as to which accused caused which injury or that it is as a result of injury caused by the present appellant, V deceasedidied. Other accused persons including one Asfaq Beg who is said to have assaulted the deceased with rafter have been acquitted of the charge levelled against them. In other words, the prosecution has utterly failed to adduce any clinching evidence to the‘effe’ct that it is the injury caused by the present appellant ultimately proved fatal leading to death of the deceased and this being the situation benefit of doubt becomes the need of the hour in favour of the accused/appellant. 10. Accordingly, the appeal is allowed. lmpugned judgment dated 6.10.1990 is hereby set aside. Appellant is acquitted of the charge 5 levelled against him. Appellant is on bail. Bail bonds furnished by him stand discharged. Sd/v- Pritinker Diwaker Judged, I i