' i,^£!SSK^^ f£^Zm^ ^S ^ ..^^^^^i- .!^ |-'wsstse'"^i - jj %^. i<fe:^.=£. ^S^ '<*',—...i.-!fz-^fi \- fc; HIGH COURT OF CHHATTISGARH AT BILASPUR (Division Bench) Coram: Hon'ble^hrLT.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ. Acauittal Appeal No. 3of2011 Appejlant Respondents Vs. 1. 2. 3. 4. State of Chhattisgarh. ArunKumar Sahu, aged about 19 years s/o. Bisauha Ram Sahu, resident of Risali, Sector, 294-C. Bitti alias Balvinder Singh, aged about 17 years, s/o. Amar Singh Punjabi, resident of Risali Sector, 154-H. Pappu alias Amarjit Singh, aged about 19 years, s/o. Avtar Singh Punjabi, resident of Pacharipara, Durg. Onkar Mahar, aged about 22 years, s/o. Banshilal Mahar, resident of Risali, Sector 117-H. (Application for grant of leave to appeal under Section 378(3) and memo of appeal underSection 378(1) of Cr.P.C. 1973)) Present: Mr. D.K. Gwalre, Deputy Govt. Advocate for the appellant/State. Mr. H.S. Patel, counsel forthe respondents. ORAL JUDGMENT (Deliveredon 22-7-2011) Per T.P. Sharma. J. V 1. By this appeal under Section 378(3) read with Section 378(1) of the Code of Criminal Procedure, 1973 (for short, "the Code"), appellant/State has challenged the legality and propriety of the ^. ^ judgment of acquittal dated 13-7-2000 passed by IV Additional Sessions Judge, Durg, in Sessions Trial No. 294/93, whereby and whereunder learned IV Additional Sessions Judge, Durg, has acquitted the respondents Arun Kumar Sahu, Bitti @ Balvinder, Pappu @ Amarjit and Onkar Mahar of the charges under Sections 148,307/149 and 323/149 ofthe IPC. Acquittal of the respondents is impugned on the ground that while acquitting the respondents, thecourt below has not considered the evidence of injured witnesses - Rishi Kumar Mishra (PW/2), Daya Shankar Mishra (PW/4) and the evidence of Narsingh Mishra (PW/3) who have seen the incident and also the medical evidence. As per the case of prosecution, on 18-6-1992 at about 10.00 p.m. injured witness Rishi Kumar Mishra (PW/2) was driving tempo and when he was descending the passengers near the Pan shop, respondents Arun Kumar Sahu, Pappu, Bitti, Onkar, absconding accused T. Parameshwar and 7 - 8 other persons came there holding rod, chain, gupti, sword & axe and after threatening Rishi Kumar Sahu that he was disturbing the area, caused fatal injuries by rod, sword, chain and axe. After hearing the sound, Daya Shankar Mishra (PW/4) came to save him to whom the respondents/accused also assaulted. PW/3 Narsingh Mishra witnessed the second part of the incident. Narsingh Mishra (PW/3) and Daya Shankar Mishra (PW/4) look Rishi Kumar Mishra (PW/2) to Police Station where they lodged first information report vide Ex.P/2 and thereafter Rishi Kumar Mishra (PW/2) was sent for medical examination to Government Hospital, Durg vide Ex.P/9-A where Doctor Ravi Kumar Shukla (PW/6) examined him vide Ex.P/9 andfound the following injuries;i) lacerated wound of 3x3 cm over frontal region, ii) lacerated wound over right parietal region; iii) lacerated wound over left upper 1/3 about 3 cm on neck; iv) incised wound left side lower chest and v) punctured wound over right thigh. Doctor Ravi Kumar Shukla (PW/6) also examined Daya Shankar Mishra (PW/4) vide Ex.P/IOand found one contusion over left thigh and opined that injuries can probably be caused by sharp edged weapon and axe and in absence of immediate treatment death was probable vide Ex.P/,11, 12, 13, 14 & 15. Accused persons were taken into custody and at their instance the aforesaid weapons were recovered. Rishi Kumar Mishra(PW/2) was also admitted in hospital. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the respondents/accusedin the Courtof Judicial Magistrate First Class, Durg who in turncommitted the case to the Court of Sessions Judge, Durg. Learned Additional Sessions Judge, received the case on transfer fortrial. In order to prove the guilt of the respondents, prosecution examined as many as 12 witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances' appearing against them and pleaded innocence and false implicaffion.. c. :.^\. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the respondents as aforementioned. 7. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment 8. Mr. D.K. Gwalare, learned Deputy Govt. Advocate appearing for the appellanVState vehemently argued that in the present case injured witnesses -PW/2 Rish Kumar Mishra and Daya Shankar Mishra (PW/4) have categorically deposed that present respondents have caused injuries to them by sharp edged weapons arid dangerous weapons. PW/6 Dr. Ravi Kumar Shukla found the injuries over the bodies of PW/2 Rishi Kumar Mishra and PW/4 Daya Shankar Mishra. Second part of the incident was witnessed by Narsingh Mishra (PW/3). Thus, the evidence ofthese witnesses-^s sufficient for drawing definite conclusion thaf the present respondents have committed the^offence under Sections 148,307/149 and 323/149 of the IPC and the court below while acquitting the respondents has not considered the consistency between the medical evidence and ocular evidence and thereby committed illegality. 9. On the other hand, Mr. H.S. Patel, learned counsel for the respondents opposed the appeal and submits that this is appeal against judgment of acquittal and the same was passed by learned Additional Sessions Judge, Durg wfiich is well founded. After minute scrutiny of the evidence of PW/2 Rishi Kumar Mishra, PW/4 Daya Shankar Mishra, Narsingh Mishra (PW/3), Doctor Ravi /y^. ^ ^ s • ^-^."^. • ^\ ^ j '^ !i£>-1 Kumar Shukla (PW/6) and inconsistency between medical evidence and ocular evidence, the Court below has rightly acquitted the respondents. Even in Case leave to appeal is granted, judgment of acquittal cannot be converted into the judgment of conviction. The evidence collected on behalf of prosecution may be sufficient for creating suspicion that respondents have committed the offence, but same is not sufficient to draw a definite conclusion that the respondents are the persons who have committed the offence and the view taken by the trial Court may be erroneous but cannot be reversed. 10. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf oftheprosecution. 11. In the present case, injuries found over the bodies of Rishi Kumar Mishra (R/V/2) and Daya Shankar Mishra (PW/4) have not been substantially disputpd on behalf of the respondents. On the other t^and, it is established by evidence of Doctor Ravi Kumar Shukla (PW/6) and injuries report (Ex.P/9& P/10) in which five injuries have been noticed by Doctor on the body of PW/2 Rishi Kumar Mishra and one injury/contusion was noticed on the body of PW/4 Daya Shankar Mishra. 12. As regards complicity of the respondents in the crime in question, legality and propriety of the finding -'and the view taken by the court below, evidence relating to di&losure of facts and recovery of weapons, present respondents were not known to the complainant and no reliance is placed on such evidence. Even ifit ^. ^ is presumed that weapons have been recovered at the instance of respondents, then the same would not be sufficient for drawing definite conclusion that the respondents have used the aforesaid weapons and thereby caused injuries to Rishi Kumar Mishra (PW/2) and Daya Shankar Mishra (PW/4). 13. In the present case evidenceof Narsingh Mishra (PW/3) is not corroborated by the evidence of Daya Shankar Mishra (PW/4), the injured witness who has also not supported the prosecution story and same is not sufficient for drawing inference that the respondents have caused injuries to Rishi Kumar Mishra (PW/2) and Daya Shankar Mishra (PW/4). As per contradictory evidence of PW/4 Daya Shankar Mishra, it would not be possible to draw a definite conclusion that respondents have caused injuries to PW/2 Rishi Kumar Mishra (PW/2) and Daya Shankar Mishra (PW/4). The evideace of PW/3 - Narsingh Mishra and PW/4 Daya Shankar Mishra is sufficient to prove the fact thaj-at the time of incident some persons have eaused injuries to PW/2 Rishi Kumar Mishra who was present on the spot at the time of incident. In these circumstances, only the evidence of PW/2Rishi Kumar Mishra still remains for consideration. As per evidence of Rishi Kumar Mishra (PW/2), when he was descending the passengers frqm tempo, all respondents along withother persons came holding sword, axe', stick, rod and chain. Respondent Bitta was holding swprd, Onkar was holding axe, Pappu was holding stick and absconding accused T. Parameshwar was holding chain. The aforesaid accused along with respondent Arun Kumar Sahu and another person surrounded 'te- him and when Narsingh Mishra (PW/3) and Daya Shankar Mishra (PW/4) came to save him, the respondents and other accused persons fled away from the spot. Defence has cross-examined this witness at length. In para one of his cross examination he has specifically deposed that appellant Arun Kumar Sahu was not present along with the accused persons who have caused injuries to him. He specifically stated that Arun Kumar Sahu was present with other persons who have surrounded him. In para 6 he has stated that there was some darkness. In para 14 he has further admitted that at the time of incident, there was no street light. In para 15 he has stated that respondents were not known to him. The evidence of this witness clearly reveals that the aforesaid respondents along with other co-accused persons surrounded him and respondents Bittu, Onkar, Pappu and absconding accused T. Paraigeshwar caused injuries to him by sword, axe, rod and chain and thereafter within 30 minutes he had lodged first information report at Police Station vide Ex.P/1, which is one -kilometer away from the place of accident. He was examined by Doctor Ravi Kumar Shukla (PW/6) vide Ex.P/9 who has noticed five injuries over his body. In his deposition he stated that 2, 3 lacerated wounds were found on the forehead, lacerated wound over right side of the head, lacerated wound over left leg, lacerated wound over left chest and fracture was found in right thigh. As per 'detailed medical report and evidenc^, injuries were not grievous or fatal in nature, but in absence of immediate treatment death was probable. Doctor has not examined the depth injuries found over the chest and head and in absence of examination of the same, it is difficult to hold that whether the injuries were fatal or serious in nature. In these circumstances, inference would be possible that injuries were simple in nature caused by sharp edged, pointed object and blunt object of weapons. The evidence of PW/2 - injured witness Rishi Kumar Mishra is well corroborated by the evidence of PW/3 Narsingh Mishra, PW/4 Daya Shankar Mishra and first information report (Ex.P/1) and the same is sufficient for drawing inference that respondents have caused injuries to PW/2 Rishi Kumar Mishra. The court below has seriously ignored the evidence of PW/2 Rishi Kumar Mishra on the ground of alleged inconsistency between medical evidence and ocular evidence. As per evidence of PW/6 Doctor Ravi Kumar Shukla, his statement was recorded by Presiding Officer of the trial Court in which no incised wflund has been mentioned, although Doctor has found incised wound in the left side of chest -of complainant. While answering the query vide Ex.P/12, Doctor Ravi Kumar Shukla (PW/6) has specifically answered that the injuries sustained by Rishi Kumar Mishra can probably be caused by weapon i.e., sword. In his court statement in para 7 he has deposed that incised wound and penetrated wound may be caused by sword. The evidence of this witness is well corroborated by the query report vide Ex.P/12 which clearly shows that the Presiding Officer has not taken care in recording his statement i.e., PW/6 Doctor Ravi KumarShukla, Doctor Ravi Kumar Shukla (PW/6) has not deposed the aforesaid evidence on the basis of personal 14. knowledge but has deposed on the basis of examination conducted by him which he has recorded vide Ex.P/9 to P/15. Ex.P/9 reveals that there was one penetrated wound, one incised wound and 4 to 5 lacerated wounds. Incised and penetrated wound may be caused by sword and lacerated wounds may be caused by rod, stick and blunt part of the axe. Virtually there is inconsistency between medical evidence and ocular evidence but there is no complete inconsistency between medical evidence and ocular evidence. PW/2 Rishi Kumar Mishra has not deposed anything which can besufficient for drawing inference that on the ground of enmity or other ground, he has falsely implicated the respondents. The evidence of PW/2 Rishi Kumar Mishra relating to simple injuries caused by Bittu, Onkar and Pappu by dangerous weapons after surrounding him by all accused persons including Arun Kursar Sahu finds support from first information report and medical evidence to some extent although there were some exaggerations, contradictions and omissions in his evidence, but his evidence inspires confidence to the aforesaid extent. While acquitting the respondents disbelieving the entire evidence of PW/2 Rishi Kumar Mishra on the ground of inconsistency with medical evidence and holding that his evidence does not find support from the other evidence adduced by the prosecution, the aforesaid finding of the court below is not sustainable under the law. Ih the present case, no two views wefe possible and only inference was that the present respondents have caused multiple injuries to Rishi Kumar Mishra by dangerous weapons. While acquitting the .i\ 10 z 15. 16.. 17. respondents, the Court below has committed illegality to the extent as aforesaid. Consequently, the appeal filed under Section 378(3) of the Cr.P.C., against the judgment of acquittal deserves to be allowed partially and is hereby allowed partially. Acquittal of all the respondents namely Arun kumar Sahu, Bittu @ Balvinder, Pappu @ Amarjit, Onkar and T. Parameshwar is altered to conviction under Section 324 read with Section 34 ofthe IPC. Counsel for respective parties are present and are heard on the question of sentence. Learned counsel appearing for the respondents Shri H.S. Patel submits that all the respondents have been in custody for considerable time and again sending them to jail after lapse of 20 years of the incident, would not serve any purpose and the period of detention would be sufficient sentenc&'for them. Thus, considering all the aspects of the matter and in view of the act attributed by the respondents, respondents are sentenced to undergo imprisonment of their custodial period and fine of Rs.2000/- each, in default of payment offine, toundergo further Rl for threemonths. Respondents are on bail and they shall deposit fine amount of Rs.2000/- each before IV Additipnal Sessions Judge, Durg within 45 days from today and after paying the fine amount their bail bonds shall stand discharged. Sd/- ; —r T.P. Sharma | Judge I Sdl- R.N. Chandrakar judge Raju