‘u H' mGH cavm OF CHHATTISGARH AT. mmSP'UR, DIVISION 3E1§CH Caram. Hon’ble Shn T P Shanna 8o ' VHcn’ble Shri Rangnath Chandrakax, JJ. o er. A. No. 413/2008 Anjl Prasad Gupta, S/o Vmod Prasad Gupta, Aged about 28 years, OccupaUon Ag‘lcultuml Work R/o Vlllage Bhedm, PS' Ramkola, Dlstt. Sarguja (C G) Vemus ‘ The State of Chhattisgarh, Thmugh RS. Ramkala, DistL Sarguja(C.G.) $2. : . ct. A. No. 424(2008 . APPELLANT i In Jail RESPONDENT Bhagwan Das Gond @ Lolwa, S/o Jagan Ram Gond, aged about 26 years, Occupation Agiculture/ x / Labuor, . R/o vmage g V Phadarkarwan, RS Ramkola, ' g District Surguja (C.G ) Mangal Singh ‘Gond, S/o Bandhu Singh Gond, aged about 32 years, Occupatlon Agiculture Village Bhedlya, P S Rdmkola, Dlsu'lct SurguJa (C G) APPELLANTS 1 . (In Jail) VERSUS State of Chhattisgarh,‘ Thrdugh S.H.O. P.S. Ramkola, District I Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 37$21 OF TEE CRIMINAL PROCEDURE CODE, 1973. RESPONBENT, I w .xégww ‘m _ . my y. ‘ Present Shm Framed Verma, Sr Advocate Wlth Shn Raghvendra Verma, Advocate for the appellant (1n Cr A No 4 13 / 2008] Shn D N Prajapatl, Advocate for the appellants (1n Cr A No 424/2008) Shn D K. Gwalre, G A for the State/ respondent W ‘(Passed on 24/03/201 1) The following fudggent of the Court was Q‘ assed by T.P. Sharina, J:- 1. Criminal Appcal No, 413] 2008 med by appellant- Anil Prasad Gupta & cn'minal Appeal No. 424/2008 med by appenants- Bhagwan Das Gond @ Lolwa 85 Mangal Singh Gond against the judgment dated 29/ 3/2008 passed by Additional Sessions Judge (F.T.C.) Pratappur',‘ Surguja in Sessions Trial No. 201/06 am being disposed of ‘ by this w common Judgment V1de aforesald Judgment of convmuon and order of scntmlcc Additional Sessions Judge (F.T.C.) Pratappur, Surguja has convmted the appellant Anil Prasad Gupta under Section 302 of the Indian Penal Code and other appellants namely Bhagwan Das Gond @ vLolwa 8r. Mangal Smgh Gond under Section 302/34 of the Indian Penal Code and sentenced imprisonment for hfe and iine of Rs S 500/ —, in default of payment of nne amount addmonal rigorou imprisonment for 1 month. 3. Conviction is impugned on the ground that without any iota 6x?» evidence smcient for convicu‘on of The appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. 4. As per case of the prosecution, on fateful day of 1/ 1/ 2006 at about 6:00 PM While unfortunate Kishore Kumar Upadhyay (since deceased) was coming with PW2 Santosh Kumar Gupta on Motorcycle, appellant Anil Prasad Gupta was ddving the Bolero vehicle and other appellants sitting inside the Bolero vehicle then appellant Anil Prasad Gupta dashed Kishoxe Kumar Upadhyay by s Bolero vehicle and caused injury-thereafmr again, Aml Pfasad I Gupta causcd injmy by driving the Bolero vehicle upon Kishom Knmar Upadhyay. , more Vthan 3-4 times and caused his instantaneous iieath. 'PW2 Santbsh Kumar Gupta Who was hiding I himself fled from the spot and informcd PWI Santosh Kumar Upadhyay about the incident who‘ went to the Policc Station Ramkola and longed Fixst Information Rcport vide Ex. P'—1. Marg intimation was also recordcd vide EX. P-8‘. Investigating 0&cer left for scene of occmrence and after summoning the Witnesses vide Ex. P—6, inquest over the dead body of deceased Kishore Kumar Upadhyay was prepaxed vide Ex. P—7. Motorcycle and Belem vehicle and piece of mudguard of Bolero vehicle were seized nom the spot vide Ex. P—2. Dead body of Kishore Kumar Upadhyay was sent for autopsy to Community Health Center, Wadramagar Where PW5 Dr. VR.B.V Prajapan' conducted autopsy vide Ex. P~9 and found following injuries: ~ (i) Blood spots found over the whole body. {ii} Tire marked abrasion of 20 x 10 c.m'. found over the Body. ‘ > ‘ ‘ (iii) Contusion of 8 x 2 c.m. over right side of lips. f (iv) Contusion of 14 x 5 c.m. over left hand. (v) Contusion of 55 x 18 c.m. over left thigh. (vi) Abrasion of 17 x 10 c.m. over left cheek. (vii) Abrasion of 3O x 7 c.111. over left knee. (viii) Lacerated Wound of 22 x 7 x 2 c.m. over left leg'and sand was found over such injury. (ix) Lacerated wound of 26 x 8 x 1 c.m. over right leg and sand was found over such injury. (x) - Fracture of humeours bone was found. ' (xi) Contusion of 15 x 10 c.m. below stomach. (xii) Fracture on S‘h &, 8th ribs was found. (xiii) Rupture of pericardium. (xiv) Ruptum of $313611. (XV) ‘ Rupture of urinal bladder 8:. male organs: (xvi) Fracture of tibia 8r, mink; bone of right side, tomal 8:. meta torsal boné of right side and humermis 8r, cliak bone of left side I Mode of death was shock Photomphs of Bolero vehlcle and place of moxdent v1de Exs P— 18( 1) to P—18(S3) were taken on the basis of negative vide Ex. P- 19. Sealed cloths of deceased and viacera were seized vide Ex. P—3. Papers of Bolero vehicle were seized from the appellant Anjl Frasad Gupta vide Ex. P4. Seized articles were sent for chemical examination an pmsence of blood over cloths of deceased and piece of Wheelcover ,‘ Bolero vehicle Was cormrmed vide Ex. 'P—36. Statements of the Wimesses were recorded under Section 161 of the Code of Cnmmal Procedure, 1973 (1n short Code’) Aher completion of investigation, charge. sheet was hled before the Judicial Magistrate First Class, Pratappur who m turn comm1tted the case to - the Court of Sessmns, Ambikapur from where learned Addmonal Sessions Judge (F.T.C.) Pratappur, Surguja received the case transfer for tn'al. In order to prove the guilt of the accused/ appellants, prosecution examined as many as 21 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. They have also examined defence witnesses DWI Heera Singh 6r. DW2 Sah'sh Kumar who have deposed that Kishore Kumar Upadhya died as a result of motor accident and not as a result of causing injury by appellants. %; a d of o y After $ording an opportunity of hean'ng to the parties lealncd Addi1iona1 Sessions Judge (F.T.C.) Pratappur, Smguja While acquitting the accused Tulsi Singh 8n Indrajeet Singh, convicted and sentenced the accused/ appellants as aforementioned. We have heard Shri Pramod Vanna, Sr. Advocate with Shn' Raghvendm Verma, Advocate for the appellant (in Cr.A. No. 413/2008), Shn‘ D.N. Prajapati, Advocate for the appellants (in CLA. No. 424/ 2008) and Shri D.K.' Gwake, G.A. for the State] respondent and perused judgment impugned as also reconi of the trial Court. 10. Learned counsel for the appellants vehemently argued that conviction of the appellants substantially based on the evidence of PW2 Santosh Kumar Gupta whose statement under Secn'on 161 of the Code has been recorded after lapse of 16 days of incident and no explanation has been oE'ered by the prosecution for recording of statement of sole eyewitness after lapse of 16 days of incident which itself discredit his testimony. Learned counsel for the appellants further argued that there is inconsistency and connaciion between medical evidence of PWS Dr. R.B. Prajapati 8a ocular evidence of PW2 Santosh Kumar Gupta which is not smient for drawing dednite conclusion. 12. Learned counsel for the appellants also argued that as per evidence of PW2 Santosh Kumar Gupta, present appellant Anil Prasad Gupta has driven 3~4 times Bolero vehicle upon the body of Kishore Kumar Upadhyay but no crush injury has been noticed by the doctor which itself is suilicient to discredit the statement of PW2 Santosh Kumar Gupta and defence taken by appellants that Kishore Kumar Upadhyay died as a result of motor accident is probable defence and in absence of any contrary evidence no inference can be drawn than: H appellants have caused homicidal death of Kishore Knmar Upadhyay. On the other hand, learned counsel for the State/respondent vehemently opposed the appeals.“ and argued that evidence of PW2 Santosh Kumar Gupta 8n PWS Dr. RLBf Prajapati are smcient for dlawing deMte conclusion that present appenants have caused homicidal death amounting to murder of Kishore Knmar Upadhyay and conviction of the appellants are based on legal, credible and clinchjng evidence sustainable under the law; Court below has I .§\‘ rightly convinced and sentenced the appellants as aforementioned.‘ 14. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. l5. In the present case, death of Kishore Kumar Upadhyay has not been substantially disputed by the appellants, > on the other hand, otherwise also established by the evidence of PWS Dr. R.B. Prajapati and autopsy report vide Ex. P—9. Death of Kishore Knmar Upadhy‘a V was abnormal] unnatural. 16. As regard the complicity of the appellants in crime in question and v, homicidal death of Kishore Kumar Upadhyay are concerned, conviction of the appellants is substantially based on the evidence of PW2 Santosh Kumar Gupta whose statement under Section 161 of the Code has been recorded after lapse of 16 days of incident. As per First lnformation Report EX. P~1 lodged by PWI Santosh Kumar Upadhyay, he has lodged First Informan’on Report on the basis pf information given by PW2 Santosh Kumar Gupta and evidence of PW2 Santosh Kumar Gupta reveal that intentionally present appellant Anil Prasad Gupta has dashed the motorcycle driven by '_ @ V ‘V ,7 . @ Kishore Kumar Upadhyay and caused crush injmy by repeated driving of Bolero vehicle over the body of Kishom Kumar Upadhyay. His statement has been reconied after lapse of 16 daysof incident; As per autopsy report 'Ex. . P—9‘ and evidence of PWS ‘Dr. RB. Prajapati, fire marks, so many Contusions, lacerated wounds and fracture of bones have been noticed over the body of Kishore Kumar Upadhyay but none of injuly found over the body of Kishore Kumar 'Upadhyay reveals that injuty has been caused by crushing by Bolero vehicle (a heavy vehicle). Virtually, depth of injury was 1-2 c.m. and, internal organs pale but intact except rupture of spleen and urinal bladder. If evidence of PWS Dr. R.B. Plajapau' and autopsy report Ex. P~9 is considered then it would be difdcult to hold that Kishore Kumar Upadhyay has died as a result of crush injury or the Bolero vehicle has been driven on the body of Kishore Kumar Upadhyay. This evidence of medical experts falsifies the evidence of VPW2~ Santosh Kumar Gupta whose statement under Section 161 of the code recorded after lapse of 16 days of incident. There is clear and complete inconsistency between ocular evidence & medical evidence except evidence of aforesaid Witnesses prosecution has not collected other evidence. Evidence of PWS Dr. RB. Pxajapati reveals that it may be accidental case. In order to convict the appellants, prosecution was under obligation to adduce the evidence of conclusive nature to establish the commission of odence beyond all shadow of doubts but evidence adduced on behalf of the prosecution is even not pn’ma facie su$cient for arriving at a hnding that Kishore Knmar Upadhyay was died as a result of aforesaid crush injury. Considering complete inconsistency between medical evidence 8r. ocular evidence, we are www ea r: \’ not able to placc reliance in the evidence of solitaxy witness PW2 > Santosh Knmar Gupta. While convicting and sentencing the Uappcllants Court below has not considered the evidencary value and clear inconsistency between med1ca1 ev1dence 5r. ocular evidence and has committed an illegality. l8. For the foregoing reasons, cn'minal appeal No. 413/ 2008 iiled by eal No 424/2008 med by appellants Bhagwan Das Gond @ Lolwa &. Mangal Smgh Grond are deserves to be allowed and areahereby allowed Conviction and sentence of tlie appellant Anil Prasad Gupta under Section 302 gi the Indian Penal Code and appellants Bhagwan Das Gond @ LolWa 85 Mangal Singh Gond under Section 302/34 of the Indian Penal Code are hereby set-aside. They be set at liberty at once. They be released forthwith if not required in any other case. appellant Aml Prasad Gupta &. criminal app Sdl— R.N. Chandrakar Judge l» Sd# T.P. SHARMA C Judge 5%” ;x g