t^- HIGH COURT OFCHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR.. J Criminal Appeal No. 213 of 2003 Appellants .Hemnath and another Vs. Respondent The State of Chhattisgarh. ^ POST FOR PRONOUNCEMENT OF JUDGMENT Sd/- JUDGE £>-10-2009 Sd/- R.N. Chandrakar Judge v .^-^ HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 213 of 2003 Appellants Respondent 1) Hemnath @ Ajay s/o. Gopaldas, aged about 20years. 2) Shiv Kumar s/o. Dasharath, aged about 19 years. Both — students, r/o. village Kodia, P.S. Nandani, Dist. Durg, Chhattisgarh. Versus State of Chhattisgarh, Criminal appeal u/S. 374 (2) ofthe Criminal Procedure Code (SB: Hon'ble Mr. Ranaanath Chandrakar. J. Present: Shri N.S. Dhurandhar, counsel for the appellants. Shri A.V. Sridhar, Panel Lawyer forthe State. JUDGMENT (Delivered on this ^l^ day of October, 2009) 1) This appeal has been preferred by the appellants against the judgment of conviction and orderof sentence dated 4-2-2003 passed by VII Additional Sessions Judge (FTC), Durg, in Session's Trial No. 133 of2001, whereby the accused/appellants have been convicted under Section 324 read with 34 of the IPC and sentenced to undergo R.l. two years and to pay fine of Rs.1000/-, each, in default of payment of fine to undergo further S.l. for one month. (2) The case of the prosecution, in brief, js that the complainant Satwant Singh Suri, is a resident of Qr. No. H.I.G. 170 in Padmabhpur. His son namely Taranjeet Suri, was a studentofB.Com (previous) and his examination was going on at that time. He used fo go for taking tuition. On 9-2-2001 in the ^ evening Taranjeet went out from home by Motorcycle (Calibre), bearing No. M.P. 24 ED/3388. At night about11.15, an unknown person brought him to his (Taranjeet's) house. On asking by his father, he told him that one Ajay, who is resident of Janta Quarter assaulted him on chest, back, andhand. Taranjeet cried for help to save his life and with the help of this unknown person he reached his home. He became unconscious and was admitted in Bhilai Sector-9 Hospital for medical treatment. Thereafter, Satwant Sijngh, the father ofthe injured Taranjeet Singh lodged the FIR in Police Station Jamul. On the basis of the aforesaid report, a case was registered against the accused/appellants for offences punishable under Sections 307 r/w Section 34 ofthelPC. 3) After completion of investigation, charge sheet was filed in the competent court u/S. 307, 364, 397 of the IPC r/w. Section 25 & 27 of fhe Arms Act, which committed the case to the Sessions Court from where the case was received on transfer for trial by the trial Court. The tria! Court framed charges under Section 307 read with Section 34 ofthe IPC. The accused abjured the guilt. 4) After recording the evidence of witnesses, the statement of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded their innocence and false implication. The trial Court, after due trial convicted and sentenced the accused/appellants as mentioned in para 1 ofthe judgment. (5) Learned counsel appearing for the appellants submits that he does not want to press this appeal on merit as far as appellant No.1 is concerned. He further submits that the appellant No.1 has already served the sentence more than 17 months and deposited the fine of Rs.1000/- imposed by the court below. Therefore, the sentence may be reduced to the period already undergone by him. As far as appellant No.2 is concerned, learned counsel submits that the trial Court erred in holding the appellant No.2 guilty for the aforesaid offence. The conviction and sentence of the appellant No.2 is bad, ^ ^'^Jy v%^y improper, incorrect and iljegal as the trial Court erred in holding that the prosecution evidence is worth placing reliance. The prosecution evidence ought not to have been accepted as the same is futl of contradictions, improvements and omissions and are unnatural because in respect of jnjuries the deposition of PW/1 Taranjeet, the injured person was not corroborated by PW/7 Dr. Dr. Rajendra & PW 9 Dr. S.A. Singh. The trial Court ought to have held that there is no seizure of weapon Khukhari or Gupti and hence ought to have held that under Section 324 of the IPC is not proved and it is not proved that appellants caused any injury. The statements of witnesses are not worth placing reliance as they have contradicted each other on the point of injury on the person of PW/1 Taranjeet Singh. The appellant No.2 was not identified and no identification parade was held. Lastly he submits that considering all the facts and circumstances of the case, this appeal deserves to be allowed, the impugned judgment of the trial court be set aside and the appellant No.2 be acquitted of the charge. 6) Per contra, learned counsel appearing for the respondent/State argued the matter in support ofthe impugned judgment ofthe lower Court. 7) Having heard learned counsel for the parties, 1 have perused the records of the trial Court and also the impugned judgment. 8) In order to prove the guilt against the accused/appellants, the prosecution examined 11 witnesses. 9) In view of the submissions made by learned counsel for the appellants, it is undisputed that there is no eye-witness to the incident and the incident took place in the night. Thus, the evidence of the injured Taranjit Singh (PW/1) needs careful evaluation. Taranjit Singh deposed that on the date of incident while he was sending near internet at about 7.00 pm at Padmanabhpur, he was -/ called by appellant No.1 by name. Appellant No.1 was accompanied by appellant No.2 and another person. Thereafter, onthe pretext of taking money from some person the appellant No.1 asked Taranjit Singh to accompany them to Hudco on his motorcycle. Thereafter, all of them were wondering here and there for hours together and reached near "Murum Khadan" at ACC factory road where they stopped the motorcycle which was driven by appellant No.1. They went to answer the call of nature and after returning from there the appellants assaulted Taranjit Singh on various parts of his body with Gupti and Khukhri. Thereafter,Taranjit ran towards the light and taking lift on Luna of an unknown person reached his housewhere he narrated the incident to the family members who took him to Sector-9 Hospital, Bhilai. He further stated that his motor-cycle was taken away by the accused persons. He also stated that he did notknowthe reason ofassault made bythe accused persons. 10) It is apparent that there are contradictions, omissions and improvements in the deposition of PW/1 Taranjit Singh in view of his Police Statement (Ex.D/1) in which he mentioned the name ofappellant No.1 only and stated that he did not know the other two companions of Ajay (appellant No.1). In his cross examination he also admitted that the contradictions and omissions occurred in his deposition and stated that the first assault was made from his back side and there was darkness at the incident place. In para 5 of his cross examination, PW/1 admitted that he saw the appellant No.2 on the date of incident for the first time. He also admitted that no identification parade was held. 11) PW/2, Satwant Singh is the father of PW/1 Taranjit to whom the incident was narrated by him for the first time. Ex.P/1 is Dehati Nalsi lodged by this witness on the basis of which FIR (Ex.P/1-A) was registered. On perusal of his depQsition, Ex.P/1 and FIR, it is clear that the names of othertwo persons including appellant No.2 were not disclosed to him. It is also clear from perusal of Ex.D/2, Ex.P/1 and FIR that the name of the weapon of offence was not disclosed to him by PW/1, the injured as he mentioned in Ex.D/1, Ex.P/1 and the FIR that he was assaulted by appellant No.1 Ajay by means of some sharp ^ edged weapon but the PW/1 in his Police statement Ex.D/1 mentioned in the name ofthe weapon and soalso in his deposition. 12) PW/10 R.N. Singh, the Investigating Officer stated in his deposition that he seized one Gupti from Ajay Singh, the appellant No.1 vide Ex.P/7 and Khukhri from Raghvendra Kumar (the other accused acquitted by the trial Court). This witness stated in para 9ofhis deposition thatthe seized properties are deposited in Malkhana and the entry thereof is made in the register but no record pertaining to deposit the weapon of offence is produced in the case. He further admitted that he did not send the weapon to the Doctor for his opinion. tt is also pertinent to mention here that PW/5, Kanwar Singh and PW/6 Jhumuklal Sahu are the witnesses of memorandum of the accused persons and seizure of weapon of offence but they turned hostile and did not support the seizure and memorandum. They categorically stated in their deposition that no weapon of offence was seized in their presence. 13) PW/9 S.A. Singh who examined PW/1 Taranjit Singh, giving description of the injuries sustained by PW/1 opined that the injuries were simple in nature but fatal in absence of treatment. In his cross examination he admitted that no weapon of offence was sent to him for examination and there was no injuryon the vital part ofthe body of Taranjit Singh (PW/1). 14) So far as thereport of FSL (Ex.P/18-A) is concerned though, blood was found on article hl-1 which is futl-pant of appellant No.2, the colour of the same is different from the colour mentjoned in seizure memo (Ex.P/11) as the Police mentioned to seize black coloured full-pant vide Ex.P/11 whereas in the report of FSL (Ex.P/18-A) the colour ismentioned to be darkbrown. 15) Thus, on re-appraisal of the evidence, it is found that the name of appellant No.2 was neither disclosed in Dehati Nalsi (Ex.P/1), FIR (Ex.P/1-A), Ex.D/1 - police statement ofTaranjit Singh (PW/1) and Ex.D/2 police statement of Satwant Singh (PW/2) nor any test identification was held by Police. The weapon of offence were neither seized from the appellant No.2 nor sent to the < Raju Doctor for examination. So far as the full-pant seized from the appellant No.2 is concerned, it is clear that the colour of the full-pant sent to FSL was different from the seized one. Hence, there is no material on record to convict the appellant No.2 for the alleged offence only on the basis of sole testimony of PW/1 Taranjit Singh in absence oftest identification parade as the incident took place in the night and he mentioned in his deposition that the appellant No,2 assaulted him from the back side and he had never seen the appellant No.2, prior to the incident. 16) Considering all the facts and circumstances of the case and submissions made by learned counsel for the accused/appellants and in view ofthe fact that the accused/appellant No.1 has already served the sentence for more than 17 months and paid the fine amount and also looking to the age of the accused/appellant No.1, l am of the considered opinion that the ends of justice would be served, if the sentence awarded to him is reduced to the period already undergone while maintaining the conviction. So far as appellant No.2 is concerned, taking into totality the factsand circumstances ofthecase that his name did not find place in FIR, Dehati Nalsi and in police statements of PW/1 and PW/2 as also no identification parade was held and no weapon of offence was seized from him, lam of the view that the prosecution failed to prove the charge against him. 17) Accordingly, the appeal is partly allowed and the sentence awarded to the accused/appellant No.1 is reduced to the period already undergone by him while maintaining the conviction and theappellant No.2 is acquitted of the charge. Their bail bonds shall stand discharged. Fine amount, if any, paid by appellant No.2 be refunded to him forthwith. Sd/- R.N. Chandrakar Judge