•,,^1,.<A',^^:'^ j.w^Siii^^Q^m'^'.W'^^^^ •F'E^ADESHJ- AT. :.^BM.PUR-. -. : Cr.i.mi^al &£^eal.-']^^'. ;of!..i9.^6%^,,^.^,<E. ;^;-.-: v^APPEL!j^^&f'sfel«:XJmedJRNn;son^of;Su^ ^"-,-11"1;-.-'.''.,7"':' .X-IN' J^M.i. tf^::.-:--:;p^ ^;,;^^ag::ed-abp^t/;^ Jhalroudl, '^ PQliee St.ation^.BaE-adwar^ ;•':-: District Bi.laspujf, , ,„ :- ^t^'^c. ^SIiri-WB£^^vs^. 't'*Nlw,—»-^^*——»—»^. '.i'-^... -' i ^ia.az ,'^|. ^^£.^ ^ 2» Sahani Ram^aged 65 years ^ son o£ Bhuthiyar Satnam^ r/o village . J'halroudi^: Police Station Bar^dwar^ •Dis'triot- Bi.iaspur.»- • •:;-;;':i.'"'^- ' Y: 3o ,Xam Gopal son of Sahani Ram Satnami^ : -ag@<3 3 O years, r/o •v;i 1 lage Jhalroucai , Pblice Station .Baradwar^ Dtstrict ..B.ll-Qspur^ • .. '•• - ... •' ..'",:.• .^•- '",•.:''' VERSUS " ;': • ' , •.., ^ ' ; / :;.- RESPQNDENT s ^tate of Madhya Pradesh thro.ugh.the ...;:?n Poiice S-ba-fcion Baradwar'^ District ' ^^^^^^^^ 'Bilaspur'. ' ^ 1111 ' '. -'. !'..:', ..: :'1,:'^/.''.^'';| APPEAL UNDER SECT-IO.N 374^ CODE OF CRIMINAL;ERQCEDURE»-1^^3»X:4 -s_ \ » JS-61 » i?a No. of VERSUS Umed R.am and othei State of Chhattisgarh Ms. Nirupama Vajpayee, counsel for the appejlants. Shri Vivek Sharma, PL for the State/resporsdent. OF The present appeal arises out of the judgment and order dated 09.03.1996 by Additsonal Sessions Judge, Shakti, Dlstnct - BiSaspur ln Sessions Tnal No. 272/1994 convicting the accused/appel.iants for the • offence under Sectjon 307/34 of IPC and sentendng of them to undergo rlgorous imprlsonment for five years and pay fi.ne of Rs.. 200, in default of paymsnt of fjne to f'urther undergo slmple jmprisotiment fo.r one month. 2. Brief facts of the case are th.at on 30,05.1.994, FIR Ex. P-7 was Eodged by the victjm Bhagat Ram (could not be examined as he during triaJ) alleging in jt that on 29.05.1994 at aboufc 6 p.m. the accused/appeliants started abusing his mother and when he intervened Into the matter/ accused Umed Ram and Sahani Ram caught ho!d hjm and i accused Ram GopBl assaulted him by a club as a result of which he sustalried jnjury on hls Aftsr jnvestSgation the chaiSan was flled on 30.06.1994 for the offence under Section 307/34 of IPC agalnst ai{ the three accused persons. 3. So as to ho!d the accused persons guilty^ prosecutjon has examined 10 witnesses In support of its case,. Statements of the accused persons were aSso recorded under section 313 of the Code of Criminal Procedure in whjch they denied the charge ievelled agalnst them and pleaded thelr innocence .and false jmpiication In the case, 4. After hearing the parties the trial Court has convlcted and sentenced the accused persons for the offence as mentioned above. During pendency" of the present appea.E accused Umed F<am expired and therefore, the present appeal confines'only sn respect of accused/appeSlant Nos.2 and 3 (Sahani Ram and Ram Gopai respectively). 5. Contention of the counsel for.the appellants is that jn the FIR/ ailegation has been that the appeilant had assaulted the vlctlm by means of a dub whereas'ln the Court Statement the wifcnesses Chandari Kunwsr (PVV-2)., Ranjit Kumar (PW-4) and Bai (PW-6) they have stated that the appellant assauEted the vlctim by means of an axe. She submits that no axe whatsoever has from'the accused persorss and o.nly one club has from the accused Ram GopaE. She further submits that the statement of the witnesses Is very unrejiable and Jooklng to the jnconslstency In the same, the persons cannot be convicted. 6. On the other hand, learned counsel for the State supports the impugned judgment and, submits that the injured Bhagat could not be' examined as he dled during the pendenc/ of the triai and now thls Court has to the matter on the basis of eye wltnesses of t'ne Incident. 7. heard counsel for the an;d perused the material avaiiable on record induding thejudgment Impugned. :^^^^,\ ^ ^-4. '^%, f£.,.l1 -3- 8. Ganesh Ram (PW-1) who is cous.in brother of the victim Bhagat and was an ey'e witness to the incjdent has not supported the prosecution and has declared hostlle. Chandan Kunwar (PW-2) .mother of fche vlctim has stated that on the of Inddenfc the accused Saha.nl Ram and Umed Ram caught hold hss son and the accused Gopa! assauited wlth the he(p of an axe as a result of vrfhlch. he sustalned Injury, She admlts that the accused Umed Ram Is her brother-jn-law (Jeth) a.nd there exists some land dlspute between them. In her Court statement this wltness has stated that the victjm assauited by an axe vvhereas In her 161 Cr.P.C, statement she had categoricalJy deposed that the victim was assaulted by means of ciub. Thus, it is djfficulfc for this Court to tne statement of this witness, Lakhanial (PW-3) vvho Is the brother of the vjctim Ram, has not seen the actual occurrence he informed about the jnddent by his son Ranjeet. VV'hen he reached on the spot/ the vlctim Bhagat Ram jnror?T.ed h.im that the accused persons.had assaulted him by an axe. Though this wltness Is a he.arsay vvltness but "in his 161 Cr.P.C. statement he too has stated that the vjctim was by means of dub. Ranjeet Kumar (PW-4) son of Lakharjlal,, another eye wltness to the- incldent has that the accused Ram Gopal had assaulted the victim Ram by means of an axe whereas sn his 161 Cr.P.C. statement he has that the vjctlm was assaulted by means of club. Shuhata Bai (PW-5) has not supported the prosecutlon and has declared hostite. Bangla Bai (PVv-6) slster in !aw of the vjctlm has aSso stated that the accused/appellants assaulted the vjctlm by an axe whereas thls witness admits in her 161 Cr.P.C. stateme.nt that the vjctlm was assau!ted by a club. Dr, P.R. Dewangan (PW- 8) who had examlned the victim and given his report Ex. P-5 has fbund two snjunes including one on the parsefcal reglon.. .^^ h ^ Accordlng to this witness also'the Injury vvas caused by hard and b$unt object and to ascertaln the nature of injury a querry was put to him and after examinlng the club he had given hls report that the injury couid have been caused by means of the said ciub. The evidence of this 'witness a!so reveais that as per the prosecution case the injury was caused by means of ciub whereas ail the witnesses have stated that the snjury was by means of an axe, 9 Having thus gone through the record it js crystal clear that in the statements of the vvitnesses recorded under sectlon 161 of the Cr.P.C. and that of thelr Court statements; a lot of inconsistencles are there whlch make very difficult for th.is Court to place implicjt reiiance thereon. According to the statements of the witnesses recorded under Section 161 Cr.P.C. the injuries are said to have been caused wlth club whereas in the Court statement they have that they were caused with axe. Moreover the doctor examining the victim has also stated that the snjury sustained by him couSd have been caused by hard and blunt object. Thus, jn view-of the inconsjstency in the statements of the prosecufcion wltsnesses the accused/appeliants.are entitled for benefit of doubt. In these circumstances the fsndings of the Court beiow convicting the accused/appeljants under Section 307 IPC cannot be upheld. 10. In the result the appeal is allowed. Judgment impugned is set aside. AppelSants are acquitted of the charge leveled agalnst them. The appellants are on ball. Their bail bonds stand dlscharged. ^w^ Sd/- pritinkerDiwaker Judge