HIGHCOURT OF CHHATTiSGARH AT BiLASPUR (SB: Hon'bie Mr. T.P.SHARiViA, J^ Criminal Appea! No.1083/1993 Sohan Lal Yadav Vs. State of M.P. (now C.G.) Criminal Appeai ?io.1181/19§3 Balla aiias 3a|ram V3. Ths State ofMadhya Pradesh (now Chhattisgarh) 0,--1OST FQR JUDGMENT ON 30/7/2010 Sd/- T- P. Sharma Judge ...t-:^:':r:''. '•': r / y^ rfntli Uf "Tl! iRH AT APPELLAN- tf-%B-"r-K RESPONDENT (APPEAU %^\"sr^ Sohan Laj Yadav S/'o Radheshya Yadav ased a&out 20 years, R Shriram Chowk, Tlkrapara, Raipur. Versus StateofM.P.(nowC.G.) il^IPIII tirfi iglSilicBl8 An Baila ailas Bairam, aged about 20 years, son of Shri Roopslngh Thaiajr; Resident of Shriram Chowk, Tikrapara, Raipur, District Ralpur, M.P. (nov.' C.G.) The State of Msdhya Pradesh (now Chhattisgarh) DEi •ECTION 374(2) OF PROCEDURE, 1973$ CODi i^.41ksA» (SB: Hon'bie Mr. T.P. Sharma, j.) Present: .Ravi i, counsel forthe appellant in Cr.A. No. 1083/1993. hagat, counsel for the appellant !n Cr.A.No.1151/1993. Mr.Rakesh Kumar Jha, Dv.Govt.Advocate for the State. 1. ,th (Delivered on 30'" July, 2010) Crimlna ^rimina! Appeal No. 1083/1993 fiied by Sohan Lal Yadav & Criminal Appeai No. 1161/1993 flled by Balia altas Bairam are arising oui of the judgmeni of conviction & order of sentence dated 25.9.1993 passed by the 3 Additional Sessions Judge, Raipur in Sesslons Tria! No.298,/91, therefore, they are being disposed of by this common judgment. The aforesaid criminai appeais are directed against the judgment of convictlon & order of sentence dated 25.9.1993 passed by the 3 Additionai Sessions Judcse, Raipur in Sessions Ti '•Vv's •jai No.298/91 ^^ whsreby S whereunder 'earnsd 3ro AddlSiona! Sessions judge after hoidlng appellant Sohan Lal Yadav guilty for the offence punishabie under Section 307 of the indian Penai Code and appellant Balla guiity for the offence pursishabie under Section 307 rsad with Section 34 of fhe indian Penal Code senfenced ihem io undsrgo n'gorous iwfti^iffi&^Ttpyi^i^-f' f^y m(/^ t/^s^rin ri <'*i?^rt<^^ii//\ii^ Hiipi !»yttHls:?jl lUi i'Vfc? y^ais, t^aptii-'iiVtiijy. Conviction Is Impugned on the ground that •Aithout there being any svldence, especlaliy evidence of identificstlon in case of unknown accused persons, the tria! Court has convicted & senienced the *n>*^<SSl'S?1>Tff •'SS? ^iT^l?'Q?¥^i?s)T^Yfi'*i?^^5»"t •'33^jnl y>^ ^**i''^li^l/ f\t^.Wt ytft IT? i^/^ * 1 i''•^/^'Cti I^V ipp'ffffai i!L£3 cass ctfvl ^Uifci?H>ui j^u cg? iU ii ifc?l ^Uy i-'uialUi!i.lt;u iilcycailiy. Case of ihe prosscution, in brief, is that on 4.2.91 at about 8.10 p.m. tnjured Shivprasad was coming to hls house by iursa moped aiong with Menghu Ram (PW-1), while they were passing r,ssr tubeweil, two persons were standing, they tried to stop the GcmplainaRi, when he siopped his moped, then one person caught hoid his hands and puiied down him from moped and other accused was ha'v'ing dragger (kukri) and sssauited t'A'li ?n.'o •'s^rirtrftQ is aoaomen, tney aiso p iViersghu Ram, compiainant Shivprasad crted for heip, then their reiatives came to the spot, assaiiants were unknown. He Immediately lodged dehati najlshl vide Ex.P/1. Bloodstained ctothes of the compiainant wsre seized vide Ex.P/2. He was sent Tor msdicai examination vide Ex.P/17. He was examined by the doctor and Immediately shlfted to D.K.Hospitai, Raipur for treatment where surger/ was conducted by Dr.P.K-Pandey (PW-11) vide Ex.P,'18A and found stab wound over abdomen affecting large Intestine & smali intestlne and huge quantity of blood was found Inside mesentery. irsjury was fatai to Slfe. He was aiso examined by Dr.Ramkumar Pandey (PVrf-5) injur/ and stiteh wound. Fjnally F.S.R. v'vas vide Ex.P/19. Ciothes wers also examlned. Test identiflcation parade was conducted and compiainant Shivprasad and witness Menghu Ram hsvs identified ihe appeilants vlde Ex.P/3. Accused Balia made disciosure statement of betei axe vlde Ex.P/9, same Vv'as recovered from Shankar Lai vide Ex.P/4. Accused Sohan made vid8 Ex.P/14 and found s' /«i<?<'/*S/*kie<'i <?'.» ^^'''•it^'^-^w^i^v^'v' r^? /rvr^fvyv/•\r \ii^^\ E3^/ ?-ifi Uio^lLF&Uilt? %?i{gl'cSiiit?! ii ui uicsyyc;! viuc f^.^.Ti'i'U^ same wss r was recovered v>\.^y 6. 8. ^/ ?y^r>n *SHo)^L<^r I<'«E-^O| F.'t/ 0^£^ A,(^/^t f^/^^'i tSciii''"i '"li^^h ytn'^i^^t .^«ii^i^\E^;«"ki('f/^ HUui Oli(^iii\^! ViU^ C.X.f/O. MUJU^tsU Diili^ SE%3V IFiaOSi 13iS^tU£?LifS statement of ctothes vide Ex. Rv PM 4 same •«"»'ererecovered from him vlde Ex.P/6. O'^il^'t'T^i •-*l?l<^ w^i'^^jn /^^/^i^^i'M iiff^ ^•^•n'^.r^nnfflLnr f\? /\I/S,T|^<^<^ v^ijUegii cil-oL? U ICTU^ uaCTL'i^StUic; a.KSt^UiSi il Ui UiUlU^a? vlde Ex.P/12, same were recovered from him vide Ex.P/7. Accused Punau made discjosure stafement of clothes vlde Ex.P/13, same were recovered from hlm vide Ex.P/8. Statement of the witnsssss were recorded under Secfl ^ff-^Tii/^S^ ^ of the Cr.P.C. and after completion of investigatiOR, chsrge sheet was filed before the AdditionaS Chisf Judiciai IViagisirate, Raipur, who in turn, committed the case fo ths Court of Sesslons, Raipur, frQm where learned 3 AdditJonal Sessions Judge, Raipur received the case ors transferfortriai. in order fo prove the guiit of the sccuseaVappeiiSRts, the prosecution has examined as many ss sieven witnesses. The accysed/'appeilants were examined under Section 313 ofthe Cr.P.C. where Shey denled the clrcumstances appearlng against them and pieaded innocence and faise Implication In the crime in question. A.fter affordlng opportunity of hearing to the parties, learned 3"' Addjtionai Sessions Judge, Raipur whiie acquittlng co-accused Punau ikar La! convicted S sentenced the appsttanis as ! have heard Mr.B.M.Pandey, counsel for appeiiant Sohsn Laj Yadav, Mr.Ravi Bhagat, CQunsel for appeiiant Baila alias Baiaram, Mr.Rakesh Kumar Jha, Dy.Govt.Advocate for the Staie, perused the judgment Impugnsd and rscord of the trtai Ci Learned counsei appearing for both the appeiiants vehemenfly argued that In tbe present case they are not dlsputing the Injuries and its nature found over the body of the cornplainant, but in tiie present case, the accused 'were unknown to the complainant, inclcient took piace at night, there was no opporturilfry' to see the accused persons, fhe complainant y*t^ai". y^^r ^•tif^y^ •^v^\t ^<-tff»/M*(i(^i4'i<^rt ti^ T'H/*|. C E O <«»r>/< 5a-?i!n.«{i'?'^f »^'5f» l^^s^r^ US353 s iyt ^isVc;fi sxliy U^OLrUpiiUH 11 i li S^ r.1.r\. <ai}U iiCaiL/iiii.y 1 asas? iL'tStSii \ fastened upon the sppeitants only on the basis of identificaiion. As per evldence of the complalnant, before conductlon of such identiflcatlon he '•,i'B:;<- "fe..."' ^'"'.~,li' t»SStsp •^v' ?^QC 'ffQ'ss^ Tt^^i '•!)y^*^,QH-^?>^^ fy^ ir^^r.li^.^i ^i !i"l-'i'i^t*~fi/ tftftTii/kl^ ^firi'^^i^c* ri^i^ »/\^>T ;j i Uiv oppeutai jfco aii i' yu'ii/'cs ^USii.U'UV Wl H^/i S VillCTf.ts^ iui !L'^^n'^i'?i^lJ^^I»^?*<i /s;r*/^ •Qt^^'''k'^,r»<s ^^iF •^oni.* t^^'^.ni^ <^.<^<^/^»T|V ^\^ft^^-ty^f^^\ f^/s»^it./Ir^T*irti^< ;? iuci ji.Hi^/czl.jUE l euu s3us?%?u^fc Ull iSsiy vi,E iSii ^uy^til ^Vs^^U^/Kj Lr^j sVt^il^ii ui sentence of the appsllants are not siistainabie under ihe lav*'. 0. On ths other hand, leamed State counsei supported fhe judgment impuaned and araued that ai! •i n i.lU p.m., there Vv'as ample light and opportunify to see the appstiants. After stopped the complainant, they assauited him by knlfe and betei axe. The compiainant was having ampisopportunity to see the assailants and on the basis of such oppQrtunity, the complainani has successfuliy identified the appeltants. Learned counsel further araued that evldence adduced on behalf of the prosecuiion is sufficient for deflnite conclusion against the appejiants for the commissiori of ths aforesaid offence and the trisi Court has rightiy convicted & sentenced the appeiianis as aforementioned. •^ '1 IR order t< the araumerifs advanced on b n behalf of the y^'i^Sf^f. ai-t<~(("i i t^-ni i U<3t5^UI.)U8 L i [v^^tf^ ri^/^ /^i^i/'i&nr^ift •'"t/^/4a i<n/^< !iiit;U lr!c c?vi ed on behsif of the prosecution. 2. in the present case, injurles caused to comptainanf Shivpir-x^'^ril "tnrt f caisaU c3i jU iIS nafure have not been substantiaity dssputed by the appeiiants, even otherwise aiso established by the evidence of compiainant Snlvprasad (PW-2), Dr.Ramkumar Pandey (PW-5), his report Ex.P/14, Dr.P.K.Pandey (PW-11) and bsd-head ticket Ex.P.'IS. Stab injury was found over abdomen affecttng and causing injury on ihe iarge intestsne and smait Intestine and injury was dangerous io lifs. •l^i. ^i A<c?. i*f'"t^i<-i r/i«^ ^i^/^i ^v.^yvKyi.St^k.i^i.f f>^ Tn/-» '^6niy^("tii-''3!^'E'<'* in ^»^.c*!i ''^iri'r^e^ 'E^ /f' '.e??+^rt ^3. i-\ls iK^eaiUo U!^? ^UiilpliLrsiy i./i i.i Ett; c3p^s;?t'0J ii.£» ili i.UK ^tNtlc? is j i^uisasiiUi j, .ft^'tiniAn^'frt/^ni i«** ii-'.i iiii^)r*^'''ss->^i<'tSh* yx'Tt.i-'r\<^ (^t^ T^<Q ^tt.^i/it/^inij^.^ /\? CK»t.?r»?''*<"*Qri?£3\Aj'_Q' .iijis i%? efLiSJS?i.tg! jt.iciiiy Uca&^^ Ui! i.tt^S S?¥tU6;n^*S ^a Oi irvpi a&GU ii~¥¥-ji-f who has deposed in his evidence that whlSe.he was comlng to his house by iuna moped aiong with Menghu Ram (PW-1), rA'o persons i?<'^r^r\»"i^v.ct ^%i»*kTi •S'rx^.t.r t^'o i/»('^i^ ^.nS/4 i^t^1* ^•'irt^^' S^> IT •^y^i/i'^^iflf ^in r\iT^\f\fi^ftfMi4 olUpp^u iHsit, llifc?y ^ciUyi ii, ) SUaU E iiS> i tt3i iUS? UUi cguyii^Vtf s l^ piU^c;^Ut;u further and again came back near fhe persons; they v/ere three in numbers, he toid to Mengnu that they appears to be bad persons, then Menghu toid him that he knows them, he cailed his relatives, at that tlme out of three persons, one person assautted hlm by ftet and other was directing to sssauit by bste! axe, ihen third person assauited him twice by dragger. Third person again used betei axe over his moped. After hearlng sound his reiatlves came, then the accused persons fied away from the spot. He has specificaiiy deposed ihai accused Sohars b¥d?•agger and accused BaiSa has used beiel axe. 'helr reiatlves tooK him to hospital. he has iodged the Ex.P/1. S-«i^ /^S<^* ciothes were seized. He has aiso ideniifled the assaliants vide Fv p;"3. ,A.n 3 f ^. •^fty*ur*i^t t £3i'*'it>vi /Q**A/ -I \ *.itfaff» i-^r^^e f^nT ^sy^ ^i^^i fte°\rw' nst i^ i^^ !n<')i<^ !n/>T !yiS;UUi!iJ nitaiu ^i-vV~i^ ^Vcate piSS&Stil Ui i l.il^ £»pyiUUi 1 i^ s isssi tiyi supported the case of the prosecution. The prosecution deciared him hostiie. He has admitted in para 3 of hls cross-examination that at the time of incldent, one person assaulted Shivprasad by knlfe. Defence has cross-examined compiainant Shivprasad in detali. There are some contradictions in the F.1.R. and statement reiating to use of betei axs, conversation between the accused persons and descrlption or the assaliants. in para 4 of his evldence and in para 14 of his cross- exsmination, he has specificaijy deposed that the police caiied him In poiice station where so many boys •v'ere present, out of 10 to 12 boys he took out three psrsons who have committed the offence and assauited him. Champaiai Dewangan (PW-6), who has conducied identiflcation, has deposed In hls evidence that the compiainant has identified ihe accused persons amongst 10 to 12 persons vlde Ex.P/3 and he has conducted identiflcation in one house. Kaiiash Sonkar (PA'-7) has also corroborateci the evidence of Champalat Dewangan (R;y-6). 15. !n the iight of svidenes of comptainant Shivprasad (PW-2) reiating to identifscation in the poiice station, evidentiary vaiue of test identification iosses lis Importance. Evidence of Shlvprasad (PW-2) revsais that he has identified th,e assailants amongst 10 to 12 persons before some other persons who conducted identlficstion. 16. This !s not a case where the poiice authorities have shown the only identlfication. Evidence of test jdeRtifteafion Is not rtive plece of evidence snd dock ideRtification is the oniy substantive piece of evldence. in para 1 of evidence of Shivprasad, he has specificaiiy deposed that appeiiant Sohan has assauited hlm by dragger and other appeilant Baila was 'navlng befel axe and has used -"—...^L.-..-. ^ -^^ ^<'\».^* ^\f^ f^^ ^f 'i^^st.vss ^AS and at the iime of incident Both She appeilanfs were present fhey stopped him whiie he was coming to hls house by luna moped. His svldence relating to idenfification of ths appeliants i". the Court is unambiguous. 7. Admlttedly, the compiainaRt was having sufficisnt opportunlty to see the appeiiants who have committed She Incident in ciose distance hardly distance of 1 to 2 feet and he was able to identify fhe persons who have caused fatal Injuries and even attempfed to commit his murder, although test Identtfication, in the present case, is of no heip, but dock Identification of both the accused by fhe complalnant is sunicjeni for drawsng inference that appeliant Sohan has assauited him by dragger In sharing ofcommon intention ofanother co-accused Baila. 8. After appredating the evidence available on record, learned 3rd Additional Sessions Judge, Raipur has convteted & sentenced the appellants as aforementionsd. Consldering the inju"/ and commission of offence after stopping the complalnant In a v/ay, sentence of rigorous Imprisoriment for five years is not excessive. i do not flnd any iiisgailty In the judgment impugned. 19. For ths foregolng reasons, Criminai Appeal IMOS. 1083/1993 & 1161/1993 being devoid of merit are iiabis to be dismissed and are hereby dismissed. The appeiianfs are on bail, they shali surrendar immediateiy before fhe 3 Additionai Sessions Judge, Ralpur for sen/ing rsmaining part of sentence. —^-^-— T-P.Sharma Judge °/-