HIéH (JQURT OF CHHATTIS$ARH AT BILASPUR Ceram: Hon'ble. Mr.T.P.5harma 8: Hon‘bie ~Mr.R.L. ihanwar', 33’. Crimim! Ag&a! N0.534 9f EOQ4 Rhonda! Yadav and ane‘rher ‘ Versus 5mm of Chhmr'risgarh JUDQMENT FOR (.‘QNélbERAILQL \ ‘ Sdl- T. P. Sharma Judge 274 2610 Hon‘ble. Mr.R,L.Jhanwnn‘J' Post far Judgment an : "sf L ‘ 28-14-2613 Sd/— T.P. Sharma Judge i 284-2016 Ié’vH CQURT Q? €HHATTT—ZARH AT BILA5PLIR Crimémi Aggaai No.534 of 21.304. @ Caram: Hm‘b'b Mr.T‘P.$HARMA &. Han’biz MrRLJHANWAR, JJ. (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMENAL PROCEDURE, 19?;5) Present— MrAbhay Tiwari é: MrJ/KPandey, counsel fer The appelimts. Mr‘DXEwalre: Gavernmen‘r Advoca‘fe for The STafe/respondenf. mnwgm (beiivered on 28* January, 2010) The judgment 9f thg Caur‘t was delixékd byT.P.Sharma, J.:- ChaHanga in ?i'2§s apgneai §s €13 the judgmam cf convic‘rian & order 0f samaace dafad 17.§.2@D4 passed by “the Special Judge. (cgns'timted under A?m::§?y Act 1989), Ambikapur, in Specia! $essicns Case n» NgZl/ZQG3, wkereby & whgmunder karma! Special Judge after hok‘ling fhe appe§§anfs guilty f9.» cammissim of immicidnl death of Thoiumm amaum‘ing Ta murder and simpia §njury TO Baisai, mnvictzd under 5.2-:fians 392 & 323 afvfha Iiqdicm Pam! CQde and each 0f them have H SL APPELLANTS 1. ghandai Vaclav; San of JcngH Yadav, (in Jdii) aged abou‘r 25 years, Occupa‘l'ion: 3 Agricuh‘urist 2. Kishunmm Ygamv, 5cm of Mangal Yadav, aged abou‘; 22 years, Gccupafion i ‘« ‘f Agricuii'uris? (Bo'rh are rasiéen? 0f Vin : Kat, Palice $ .. Smfmn Eqfouii, Districf : $ur‘guja - CE.) ‘ Versus. QESPéNDENT Smfe 9f Chha‘Hisgarh Through The Poiice STai-ion : A.Ja.K. Ambikapur, Dis‘H‘ i Surguja (Cx?) semensed ‘a-a underga imgrisonment far- !ife and 1m gay a fina of Rs.1QOQ!-, in dafauh' 9f péymgn? of fine. 1:9 further underge rigamus §mprisgnmem far threa mom‘hs and rigomus imprisonmem for 6 man‘ms. Judgmem is impuaned m ‘l’ha ground irhat wi‘rhout there- being any CSimhmg and tmdiJa ev‘zdencai the Cam“? belaw has sonviz‘tad and sawemed the appe!§an?s as afarememmngd and mereby cnmmifmd illonnH‘hl. 9'.” . , h) ~ v C352 $2? Thg pm-2cmion, in brief, is TM? en The fa'rafu! day 9f 223,2Q02 a‘ra‘iggu? 23G mm, The appeilams were. grazing cf grass inside planfa'rian a?’ vi!!a9e Km, §essigns D§visé9n Surgaja. 0n fhe 9mund of grazing 0f grass gy cattlg; fag appeliams assauh‘ad ingured Salsai and decgaged Théiurc‘m. They dragged the}?! ‘mwards camL Fina“)! dam! bgdy sf Tin-alumna was faum! in canal of fha plan'm'mn. Merg infimn‘rian wag recevded Vida EXP/é am 25$.2082‘ 0n Tina basis Qf merg imimafian; FJLR. was regisfered Vida ExPl5. Inves‘tiga‘tmg officer procaedzd far the scene 0f mcurrence. Af‘rzr sammening the wifnessws Vida Ex.P,/7, inqu‘at ever- dzad hwy 0f Thelumm was praparad Vida EXP/8. Dead bad}! of demasgd Thaguram waé sen’r fawaumgsy fa Communify Heal’rh Centre, gateuE VMe Ex,?’/1& Auwpsy was cmducfed by DrfaRKmrg (PW-10) Vida ExPfiZ and feund bnéy was Lmdar putrefac?ion. Body was Swallen. Magga‘rs were found aver fha bvdy. Skin was pilled off. Bane structura is seen ever face and (hash Eyes and maxiigary were v§sibl2. Teeth 0f upper jaw wars missEng. One heara‘rgd wwnd was fmmd Mar rig??? leg 9f 2" x 112'" x ir", gxfznsiw hesmerri’aagg was fnmd insida the shauidaa‘s, neck and uppgr par? 91F abdsmen and brushes were found aver surface of bathh flag gags. Daafh was as a msmit 0f card?!) respira‘mr'y arms? and was hgmicidai 'm na‘mra $799+ map was prepared by mvesfigs‘ting cfficer Vida <1»; EXP/19$ Sesied packefs 9f clnf'ass m? Th5 deceased were seizeé viée EXP/11. Jangii Vsdsy was alss axemhad by Dr. 62R.Kurra (PW-10) vidz Ex.P./33 and faund abrasivn ever @gf‘? shes? and campiaining pain over- righ‘r thigh, 32f? ear, left? side of The neck and swelling and pain over we s @ righ? knee jaint Eajured Balsai was alsze examined by éRJQurrg {PW—10) vidz ExP/lA, and feund QM. iazemtad weané 9f Z" x %" x é— “ over ief? kag, Qne confusion sf 3" x 1“ over righf arm ma geniusion avg? ief'r lip 9f 3" V %", 9m confusim ever r§ghz¥ thigh 9‘? 2 i! v g 1 l md em confusian war {aft 'khigh 9f 2-" x é". §§of map was alga gmpared by patwarE Vida EXPIR During i'ha awrse 9f invasiiga§ian appg!!m+ Kishun was mkzn img Cuswdy. H2 mazie discbsure sfafemeaf of afick vide ExP/L 51*i‘ck was recovergd fmm appeHanf KIskL‘ . vEde EX.P.!3. Appalmm Bhsngal has £939 made disclosura sm‘remem“ e1? s‘mk vide EXP/2, Sfick was receygre imm amused Ehanda! vida Ex.P/4~ a f 4. Stmmen‘rs 9f fha wimasseis wzm recorded Linda.» Sac-rim iél of ‘l’he Coda éf CriminaH’mcadare, 1973 (herdnafiar Mfg-red “m as ‘tha Cedg’). _, Affer camp§e?ion 9f invszgigatmn, charge 5%?! was filgd in thg Cour? 9f Chief Judiaia! Magisfmw, AmbikQpur, who in mm cammitted the. 0353 m We? Cami: sf “the 5§2ciai Judge, Amhikapur. U! D. If? arder- f9 pmvg fhe. guiit 9f 11mg accused/appelian‘ts, ‘rhe: proszgu?i9n has axamimd as many as 13 witnesses. Smfemems ef 'rhz accugad/apgeHams warz‘a?sg racorded umier Sectian 313 9f frag Cede where? they dzraizrl 1432 cirwmsfames appegring rigging? them and chimed inmaznce and faise impiim‘rian En thg crime in quesfion V . iffQrdEag an awgrmniw cf hearing :ra fhe gar‘ries, lemmas? Spech! Judge, Amba’kgpur has canvic?ed mad samenced the appeilants as aferamezntianed. 3‘ We have heard Mr. Abhay Tiwari & MritKPandey, munse! farr‘rhe appegian'ts md MmRK‘fa‘umirg, Gavemmenf Advoca're. for The State arid perus-r.§ fhg impugmd uiudgmeh? and record of the Cour? below‘ v {gamed munse! for tha appdhnw vehemen'riy argued Tina? Thg prasacu‘dm has no? adducgd any avit’agnca tn shQw That fhg appellants have cvusecl any iajury m the dacaaszd. Learngd counse! farmer argued 'E'faa'? subsmn‘ria! witness Ba§sai (PW-7) has n0? suppgr'md fhe ca e 9f 14w pmseaufbn. FIR. has been {cciged cfmr' ihrea days 9f fhe incidenf and ‘rwo dgys prior i?) fhe aiiegad incident Jungli Yadav and $caba Yadav were QLm‘r-reled wi‘rh BaEsai and Tholumm, :fherefare, in fhe nbsance of way ’)1radible and * inching gviéence, canvic‘tian <8: sentence imposgd upon The appaiianfs are n9? sustainable under the law Om; fhe wher hand, £earned 5mm counse! supported fhe impugned judgmzn‘!’ and argued ma? the prtfszcu‘rian has pmved its case beyand 0i! shadovi of dwbf and the avidgnce of injured wifness Baisgzi (PW-D is m .. sufficieat far drawing inference ihai' ‘E'he npgelian‘l‘s are the persgns wine have assau!?ed and caused death of Thoiumm. $ 1.m prdgr i9 appracime i'i'aa argumen‘fs advanced an behaif 0f Ting pariie-s, » we have examined fhe evidence adduced rm behalf of the parfies. In fine preym' case, homicidai dedih as a. result? 9f ante-marten! and fafei injuries 0f Thoiumm has my? keen substantialiy dispui'ed by 'i'he appeiienfs, diherwise es'mbiished by fiie evidence ef ELRKurre (PW-10) and dampsy report EXP/'12 which reyeeis excessive internal henmer‘rhage es e resuh' of enie~mor?edi invii‘ir'y and ded‘l’h was homicidal in namm. As regards the campiici‘iy of the aceusedJappeiian'rs in the erime in quesiian, canvic‘i'idn is subsfan‘iiaily baged on circumstantial evidence i espeaidliy the evidence 0f injured wifnese Balsai (PW-7) whe has depesed in his evidence tha‘i an ‘i'he date 9f incident he was moving inside The fares"? and discharging his du’ry af wafehman, appeilanfs Bha.dal and Kishun me? him Ir fhe fares? and asked about their caffle, appeilani' Kishun assaulted him by siick and mid “ta run away, then he fied away from :Fhe spot and went to his hause and infarmed the incident ta Saran, “then he and $umn went t9 the farest ta search the aepellants. At the time sf incident, deceased Thalia was aisa eresent, both the appeiiants assaulted Thaiu ahd him by stieksu He and Thoiu Ram fell dawn in the land in the ferest.‘ Anand Ram (PW-4) has depased in his evidence that he was 0‘ »x ._. gv o'd hv Th0 p r an$ fha‘r The appeihnts have kmed one persan and they f!ed away Tmmrds the faresf, than they went Tn fares-r m search and after three days, daad bady of his brgfher Tholumm was found in injured candiTion thm h? bdgw‘ mar; infimation EXP/t3 and EIR. FY W3 Swan Ram (PW-5‘ has nl<9 dzpn d m hm ewdwcp ‘rhn‘r Ru‘sa! informed hm a‘ha? mm p $9M wen» ns¢aulfari Thabrnm hu+ hv hm no+ falrw tha mmes r4: +he persens whn have assaLlfad Thalumm, ha sen? 39mg persons 9f 151a vii3age Tafhe for-es? to Search Tholumm, but an That day they did no? 'Fir-d A-Fi'ori‘ Threo day< g4 fhe inciden'r dmd body of Thgiumm wn< faund mmda 14w Fmwsf hefprme has cro<s-axamined gaisw W-Y) in detaai m which ha ha$ admé?1'ed that mm dnvs prior +9 Tko inciden+ mam?! +oQk n'ace bptwew Baba Yndav and Tungh Ycdrvv, h'm nwi Tho!” anti men nt The time of inmdent Baha Ram was oisa present " (Md Baba Ram has assaulted him and Tho'L H9 has nlso adw’r‘fed +ha+ tather’ at Rnha Qam is rich 99mm?! He has aim admitted thrt Firstiy he‘ r'grpwpri InJlmy and gf'bp recewmg mJuy-y hp 'F'pd away and ho hn< my? sow +ha+ «aha km assauited Thom Ram. In para 8 of h!s arm xnmmn+mna k2 h s 4‘ sad ma? he was not in a pasi‘tion +0 sczy that whe?her a? Tim tim‘e 0f imidant whilz the. pay-sagas were bawing f9 him dgcmsed Thgiumm flad away ‘:vowards foray: 9r net In par-a 11 of his crass—examinatian, he has admitted that the paiice has not conducted iden?ificu?im parade and he has rm? §denfifigd the gpgeHanfs. He has m? seen ‘E‘he eggeEgMs one or Twc Times in the CTnurtv He has admitted ma 12 that he is resident 9f yiihge Eahim whereas the apeeilmts are mg Ame: mc village gnt adjoining viHage of éahikl. He has specifically admitted that the appeliant Rhea l ~s em 0f Janglx Yadav resident at village Kat anti agapeilant Kishun is nephew of Jungii Yadav. uAharid 39am (PW—4) has hat seeh the incident, he was informed by the per-sans. In para-7 cf his crass—examinatien he has admitted that he was informed that aluiarrei teak glace between his brother Thniu and ane Jungii who has assaulted his brather, but nat by the present appeliants. in 13 it? ‘ 5mm Ram {PW-5) has virtuaHy m‘!‘ stafgd anything agains‘r ‘rhe. rgresan‘r appeilanfs. 3.3. In‘ fhe presen? case, fhe prosecution has axamined Two subsmntia! Minzsses Amnd Dnm (PW-4), bm'mer 9f decaesed ThoQuram and injured wifnzss Balsai (PW-7); Balsai has deposed in para 2 cf his evidance i'hcxt app‘eiian‘!‘ Kishun has assaulfed him, bu? in para .7 of his crass-examinmion he i’has Sim-2d that ene. Baba Ram has assaulted him wha is sen of rich parson. Anand Ram (PW-4), bothefef deceased Thaiumm has admi‘ii'ed in mm 7 of his evidence that!“ he was infermed by The persnns tha‘i one Vv Jung yaday has assaulted his brether Thoiumm and not by the present apgeilcmts. In para 8 of crass-examinatian of Baisai (PW-7), he has § a ‘; perisms were beating him, Tholumm fied away towards far-est or not. He i hesi stated in pare 2 that appellant Kishuh has assaulted him but in para Y 0f his crass-examiantien he has stated that Bebe Ram has assaulted- hlm In para 3, he has degesed that the appellants have assaulted Thaluram, but in paras 7 and 8 he has depased that virtually he has hat -een whether any gersons. have assaulted Thalu or not. He has admitted “he pre-enee af Baba Ram. The pre$nce af Baba Ram also refleats fram merg intimatian EXP/6, Merg intimation alsa reveals that along with the present appellants, Baha Yaday has alsa assaulted the decea-ed. 14. This is the seriaus case of charge af murder, The evidence af salitary witness Balsai (PW-.7) suffers from ‘A‘infirmityi His evidence is self-cantradictory and if his evidence is admitted as a gospel truthi then even it is hat passible to infer that the appellants have assaulted him or deceased Tholuram. g dag- ssd that he isngt in a positidn to say whather at that'time when the 4. .._ p1 Admittedly, deceased Tholuram was .issing for last 2-3 days, but they have nat lodged any report. Even the appellants are nat the last persons seen in the company of the deceased just befare his death. The evidence sf Balsai (PW—'7) reveals that Baba Vadav, ane influential ersan was alsa , p &. D\ sed upon the appeilants under Seetiens 302 d 32304: the Indian Penal Cade are hereby set aside“ They shall be. set at liberty at ance and be released forthwith, if nat required in other cases. LSd/— " _; T.P. Sharma ’ Judge presen‘!‘ whg has emulier quarreled with Thoiu. $uspicion hcweve-r gmwz cannéf fake piacz of evidence. The prosecution is under QbHga‘rion 1:9 prove its case beyend all shadow of doubt In The presen‘!’ ca evidence 0f Balsai (PW-7), 1'h0ugh injury, does not inspire eonfidencei frusfwor‘rhy and safe 1:9 rely and even if <9 the. --, the reliance is phced on The evidence cf Bdsai (PW-.7), then even no inference can be drawn That the appe!!anfs are The persens wha have caused death of Tholumm ar they have caused injury Tn This wimess Le, Edisni, The prosecu‘rign has M? edddeed efher link 9f circumsmnce 1'0 cgnnec‘!‘ the appeihnts 591 the crimeén.questien. Mere seizure of sticks from the appeihnts is of he use. 0n the basis of evidence of Balsai (PW-7), and jsehtenced the‘ appellants as aforeme Balsai is net reliable and convietioh appeliants are not sustainable under the lawl the Ceur't belaw has canvicted ntianed, but the evidence af 6;' sentence imposed upan the Far- the foregoing reasans, the appeal deserves ta be ailawed and it is hereby allowed. Conviction & sentence impo x « Sci/— R.L. Jhanwatf Judge 25-1—2010