^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal Nto.1042 of 1991 Appellant Deepak Alias Deepak Kumar, aged about 20 years son of Shri Kistianla!; Kunwi) Resident of Uparghoda gelhapanl, P.S. Chirtniri Distt.Sarguja. Resoondent Versus State of Madhya Pradesh (Now Chhatti^arh) throi^h Potjce ^sMcm Chirmiri, Distt. Sarguja. (Criminat appeal uhder Section 374 of Cr.P.C.) (SB: Hon'bte ft4r. T.P. Sharma,J.) Present:- Mr.J.A.Lohani, counset fortheappellant. Mr.R.R.Sinha, Panel Lawyer for the State. 'e ORALJUDGMENT (Passed on 4th August, 2010) I.Chattenge in this appeal is to the judgment trf <»nviGtion & order (rf sentence dated 22.11.1991 passed by the Additional Sesslpos Juelge, Manendragarh, in Sessior®Triai N0.40/1M1, whereby & whereunder tearned Additionat Sessions Judge after hoteBng the appellant guiltyfoTthe offence punishabte under Sectlon 307 of the I.P.C. sentencsd him to undergo R.l. for five years. 2. Convlctlon is impugned on fhe ground wthout there bemg any iqta of evidence, the trial Court has convicted & sentenced e appdiant as aforementfoned and thereby committed ill^ality. 3. Case'oftheprosecution, inbrief,isthat on 2.12.1990 between 10 to 10.30 a.m. Laisingh (PW-5) was construetmg his wall, quarrel took place between the "a^pellant and co-accused, then appellant assayited him by betel axe over his head, he feH dowi and become unconscious. He jmmediately wsnt to the Potfce Station ,and todged the FJ.R. vide Ex.P/3. Hs was sent for medicai examination, he was exammsd by the doctor and found serious injuries over his head. At the instance of the accused persons, wooden stickand betel axe were seized. 4. Stiatements 6f the wftne^es Were reeorded under Sectlon 161 of the ' Cr.P.C. and after completion of investigation, charge-sheet was flled ;/' a1 'l'llt <~2— before the Judicial Magistrate First C^s, Mansndragarh, who in tum, committed the case to the Court ofthe then Sesstons Judge, Ambikaptir, from where teamed Additional Sessions Ju^e, Manendragarh feeeived the case on transfer for triat. 5. In order to prove the guitt of the accused/appeftants, the preseoution tes examined as many as nine wltnesses. The Erccused were examined under Section 313 of the Cr.P.C. where they denied the cireymstanci^ appearing against them and pleadel innocence and false implteation in the crime in question. 6. After providing qiportunity of hearing to the parties, teamed Addttional c . ,. . . - .-. .- .. - .„—- - - -. ..-: Judge while acqultting other accused convjcted & sentenced the appeliant as aforemsntioned. 7. I have heard leamed counsel for the parti^, pemsed the judgment impugned and record ofthe trial Court. 8. Leamed counsel for the appeltant submfts that convtctjon is based qn the evidence of Ashok Kumar (PW-6), nqihew (rf injured Lalsin^i. In the pr^ent case, the prosecution has examlned injured Latalngh but We has not supported the ease of the prosecutton and the pr ®3utiqn has declared him hostile, even in hiscress-e)®minationhe has not supported the case of the prosecution. LeamedcounselfurthersiAmitsthatinthe absence ofany evidCTce reiating to commission of theoffence in the statement of Lalsingh (PW-5), evidence of Ashok Kumar (PW-6) whKdi may be used for corroboration attaches no vatue Tor convictlon of the appellant. 9. On the other hand, leamed State cpunset syppprted ttte judgment impugned and submits that evidence of Ashok Kiumar (PW-6) is s^neient for drawfng inferenro jhat the present appellant has caused seriotK iRjuries by assaulttng Lateingh by using betei axeand thetria! Court has rightly convicted Ssentenced the ^gpetlant as aforementioned. 10.1n the present case, serious Injuries found overthe heai of Lalsirgh have nrt been substantially dispyted by the appellant. 1 t.As regards the complteity of the appeitant In the enme in questipn, jnjur^j Lalsihgh (PW-5) has speeificatty dep(%ed in his evidence that at the time of Incident he wasconstructing wall, quarret took place betM en three 41 •y li -'S- accused pereons, then he become unbalanced and fell down on the floor, some object was lying on the ftoor, he received irguries by fatHng upon some object. He has specificalfy deposed that theaccused persons have not assaulted him, even appetlarit Oeepak has nct assauited him by betel axe. Ashok Kumar (PW-6) has specificaliy deposeel In his evlcienee that the present appellant has assautted Latsingh by betel axe pver Ns head. 12.Deflniteiy, evkjence of Ashok Kumarcan be USK) fbr COTroborayon of the evidence of Lalsingh, but Lalsingh has speoifieany deposed that fhe appellant has not caused any injury to him, may be the cause of compromise or any reason thaf Latsingh has not stated anything ^ainst the appellant. 13.The prosecution is required to prove tts case beyond all shadow of doubt in the absence of material evidence. In the presert case, cGrroborative piece of evidence is not sufflcient for drawing inference and in osse of avaiSabillty of materiai evidence, corroboratlve evidence cannot be substantiated in ptace of evidence of Latsingh. 14.Whiie convicting the appellant,the triai Court has committed ill^ality. Convtetion & sentence of the appellant are not susteinable undw the law and deserves to be set aside. 15-For the foregoing reasons, the appeal tsallowed. Convtetion & sentence of the appellant under Section %)7 of the I.P.C. are hereby set aside. He is acquitted of the chargs. He be set ^ liberty al onee.^_^ E3. Sd/- T.P. Sharma Judge 7 '^ )