^^ d^n <^v^ INTHS HIGH GOT3RT OF ^ADHYA PRADESH ATJABXLPUR Cr. Appeal •N0. \^^ /94 APPELLANT HQN-APPLIC^T ..^•te^tll^" Gopal allas Thuru son of Sa^deo^ aged aboufc 37 years^ residenfe of villaae Qorbohori, ISiaiia Tamnor, dlstriet: Saigarl^, K.F. Vsrs^s .<" The Sfeate of M.P., throuah , fhe S.O^ Tamnor y APPSAL UNDER SECTIGN 374 OP THE CODE OF CRIHINAL PROCEDURE BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:46 +0530 @7 HIGH COURT OF CHHATTISGABH ATBILASPUR SB.AiiON'BLBMR.J'tJSTICBPRITSNKBRDIWAKBR CR.A.NO. 1428/1994 APPELLANT RBSPONDBNT versus Gopal @ Ttoini StateofM.P. Shri Sanil Sahu, counsel for the appellarit, ShriVaibhav Goverdhaii, P.L. for fhe State. APPBAL UNDER SBCriON 374 OP THB CODE OF CmMINAL PROCEDURE JUDGMENT (14.01.20111 The present appeal is directed against fhe im.pugn.ed judgixient dated 10.10.1994 passed by the Secon.d Additional Sessions Juclge, Raigarh in Sessions Trial No. 253/1993 convictisig tlie appellaiit/accused for fhe offence punishable uBder Section 308 of tlie Indiao Penal Code axid seBtencmg hiiQ to undergo RI for two years. 2. The prosecution stoiy in aiitsheil is tli.at on 9.8.93, FIR (Ex.P/ 1) was lodged by one Bodhraio. Gond (P.W-1) allegiag in it that on fhe said dale, at about 11-12.00 a.:oi,, when he camie out froia his house after heailag the rstoise^ he saw Gopal Gond .holdiag -battle axe {tabbal) in his haiid aiid Jaipal holdmg axe (tangi) in liis hand, He :ha.s further alleged fh.at accused Gopal gave a bl.ow of axe o-n the head of Kartik Ram (P.W.-2) axid Jaipal also made mi att-empt to assault Kajrfcik Ram. but coiild not succeed, thereafter Kartik Ram got up ai^d ran. towards hi.s house whereupon bo'&. th.e a.ccused person.s ch.a.sed him and after seeing BodhraiB.y they ran away from, ttie spot. Based on this FIR, oflence under Section 307/34 of tiie IPC was registered agaiast Gopal & Jaipal, Ater m.vesti.ga.tion, ch-a'Uan was filed by the police on 8.9.93 under Section 307/34 ofthe IPC. © 3. In support of its case, tlie prosec'iiti.o?! Iias exam.m.e'd as m-aay as 11 witaesses. Stateraeiit of the accused persons were also recorded under Section 313 Cr.P.C. m.which tliey denied fhe charges leveled against them an.d pleaded innocence aBd false impllcation iiri the case. 4. By the impugned jiidgirient, the Coiirt below has acquitted the accused Jaipal but has convicteci. acciised/appe.Uant Gopal fb.r the ofience uuder Section 308 offhe IPC. Hence, this appeal. 1 - 5, Coutentiou of Sliri Sahu, counsel for .the appeUaiit is th.at tts.e Court below has erred in law ia relying tE:je statenient of Bodhram (P.W.-l). He submits fhat Kartik Ram, (P,W.-2) is tlie injiired witiiess aad tlierefore his statesxient ought to have been reUed by the Court below aad. he has categoricaUy stated that it is the co-a.ccused Jaipal who gave an axe blow on his head as a result of wbich he sixstained iajuries. He further subiiiits that tlie co-accused Jaipal has aiready beeii acquitted and under no stret.ch of iinagiaation, on fhe basis of the stateinent ofBodhraod (P.W.-l), the appeUant cpjibe convicted, 6. Ou fhe otfier hajid, supportmg fhe ioipugned judgment it has been argued by Shri Goverdhaii, counsel for fhe State that tlie ioipugned judgment is stiictiy -.hi ajccordaiice with law a-ud the.re is BO m.firmily ni the same. He submits.that Bodhrajsi (P.W,~1) is tlie lodger ofFIR (Ex.P/1) ajid therefore more weightage should be given to the stateraent oftliis witoess. 7. I have heaid counsel for the parties at length and pe-rused.fhe recoixl includixig the mipiigned judgment. Bodhram (P,W\-1) has stated fhat the accused persons Gopal & Jaipal are his nephews a3id rajured Kartik Rain is also his nephew, He has sta.ted that on fhe date of iacident, both'the accused j3e.rsons. have assaulted Kartik RaBi (P.W,-2). Accordio.g to this witoriess, he wa.s'isi his. house aiid after heariixg the cries of Kartik Rajii when :he caoie. out,. he saw that co-accused Jajpal was holdiag Kartik Raiii aad Gopal assa.ulted hixn on his forehead with the axe as a result of which he sustain.ed iiijury, He has further stated tliat on accozint of-th-e said iB:iiiry lie feU down ^^^.^ .^ ^ ^:~-.' ^ ~^..:. ^. % ^..w;:y %^.^^^' k ^»- arid he took him mside the house and thereaffer the report was lodged. Kartik Ram (P.W.-2) has stated that cn the date of iB.cident when he-was sittiag ueer the hoii.se of Dhurvo iii the laiie, accused persons Jaipal & Gopal caine running towards hixa, holdiiig axe ia tlieii1 haiids, He has stated that vv'ifhoiit sayiag aiiythitig, they started peltiiig stones on. him. aii.d tli.eu accused^appeUant Gopa] caught hold of liim. and Jaipal. assa.ulted him by axe .as a resiilt of which he sus-tained injunr on his forehead. -He ha.s stat.ed that when, Iie was beio.g assaultedy BodhraoQ. (P.Vvr.-l) caine there aiid after see;mg Iiiiii^ fhe accused persons raii away froiii fhe spot, He has also stated that fhereafter he was tx'eated at Tamnar hospital and froin there he was refeiTed to Raigarh hospital where he was admitted for about 19 days. In his cross exainuiation, he has categoricaBy stated that he sustahxed only one iiijury aiid the said ipjtiiy was caused by accused Jaipal. He has further stated fh.at ia his case diaiy statesnent (Ex.D/1), it has been recorded that both Jaipal aixd Gopal assaulted him by axe, biit he has denied fhat he has given aoy such statexnent to tlie police. lu para 7 & 8 of tliis witness, there appears to be sonie omissions aad contradictious. He has further stated tiiat Bodhrani (P.W.-l) is his uncle but it is incorrect to say tfiat Bodhram has given a false evidence before the court 8. Duj Ram (P.W.-3) vfflage Kotxvar, Gotliu @ Panik Ram (P.W.-4), Mohaii (P.W.-7) & Chitar Smgh (P.W.-8) have aot supported the prosecution case aiid have been declared hostile. Roop Sai (P.W.-5) is a hearsay witaess axid has mLerety stated tliat he saw the iajured Kartilc Rain aad Bodhraoi coiaiag out of the Baadi of the accused persons aad after watkiag sonie distaxice, Kartik Ram fell down. He faas further stated that Bodhraiix had iaformed him that tliere was some quarrel between Jaipal, Gopal & Kailik Ram. Dr, Sharad Awasthi (P.W,-6) who had examined fhe mjurecl Kailik Ram (P,W.-2) has found one in-juiy on ttie forehead of Kartik Ram and his report is Ex.P/ 11. Nakul (P.W.-9) father ofiajiired Kartik Ram has stated tliat he was iafonaed by his soii that.a.ccused/appellmits Gopal. & Jaipal have assaulted hini. His statemeDt also rcveals thp.t there are ^^i^ ,f^^ s^Sfi^^ ^ niaterial oniissions. J.L. Siagh (P.W.-10) is the Investigating Ofiicer, B.S,Thakiir (P.W.-ll) has done tlie part of irivestigation. ^•\ l^': •r: 9, The evidence of Bodhram axid Kartik Ram (P.W.-l & 2) shows titat both of fhem have given a dtfferent statemexit before tiie Court. As per Bodhrain, it is fhe accused/ appeUant who assaulted Kartik Rain whereas as per Kaitik Raai who is the mjured, it is ttie acquitted accused Jaipal who gave liiixx fhe axe blow. The e^idence ef injured witness lends nwre credence GS csgcdnst the Gther evidence^ css n^rmjally he weufd nof /alsety implicate a person thereby pr^tecting thc actual assailant Fiirfhe:rmore, it appears fhat there is sonie dispute between P.W.-l Bodhram aiid the accused persous though tliis fact has not been adinitted by Bodhram biit fhe evidence shows tliat fhe cases were registered agamst them. 10. Cousidering tlie totalily of evidence, it wffl not be saife for this Coiirt to uphold fhe conviction of tiie accused/appellaat nierely on the basis ofthe statenient of P,W,-1 specially when fb.e iajured Kartik Ram has given a different story aiid thus flie eutire case beconies doubtful aad fhat being so the benefit of doubt is to be extended to tlie appellant. 11. In view of the facts depicted above beiiig seexi ia the Mght of the evidence adduced by the prosecution, this Court is of the opiaion that fhe Court below has not given a thoughtful consideration to the laaterial available on record iri its proper perspective aad thus has fallen in. a legal error ia couvictiiig the accused/appellaiit as described above and therefore the saoie is Uable to be set aside. Accordiagly, tlie appeal is aUowed, impiigned jiidgmeiit dated 10.10.1994 is hereby set aside, The appeUant is on bail, his bail bonds staiid discharged. | Sd/- Pritinker Diwaker Judge