HI6H COURT OF CHHATn.SfeA.RH AT BIL4-SPUR 1. Jonak ftcm S/o Dhom" Chouhan, cged cbout 38 years, r/o Sonumuda Bajrangpara Raigar-h. 2. Sant Ram Chouho" S/o Dhonno Chouha", aged 3o years, r/o sonumuda, Bajrnngpara, Raigarh. 3. Ancaid Ram s/o Dhomo Chouhan aged about 38 years, resident of Bajrungpoiroi Rai9arh tdisii ana District R"ieic?-h f.MP'i fNow C(91 Ve-rsus RESPONOENT State of AAcdhya Pradesh (Now Chhattjs9arh5 through bistrict flAugisti-ate Raigarh (MP) (Now C6) (App'^Q! yr'der S^ctio" 3T4 of Code of Crimin'st Procedurs, 1973) (SB: Hon'ble AA,!-. T.P. Sharma. J.) Present: Shri Rcjendr'a Tr'pnthi, counse! for" the oppeltcBits. Shr' Sushil Dubey, Sovt.Advocate for the StQte/r-espondent. ORAL .JU&6MENT (Passed on 24T" July, 2009) This aooen! is directed aaainst the iudoment of conyiction and order of sente"c« dated 16.4.1999 pcssed by the Fif'st Additionai Sessions Judge, ^a'Qarh, >n Ssssions Tr'io.i No.37/93 wherebv flyd whe*tsunder ths ieQrned First Additional Sessions Judae "ftei" hoiding the oppel!a"ts gui'ty for the offence punishable under Section 307/34 of the Indian Penal Code each of them sentenced to undergo rigorous imprisonrnent for 3 years- 2. Judgment of conviction and order of sentsnce is challen9ed o" the ground that in iured Lalit has not supported the case of proacutio" cnd in the !..!.. ..:. w absencs of o"y stCEtetnent of Lolit, conyictio'n cyic! sentenc^ of the QDDBHcyits Is bctc! in liis sve of !a»y. 3. Case of the ol'osecutio" in brief is that on 1.12-92 at about 9.30 o.m. at Bajt'OLn3per'c, Rnigarh, injured Laiit (PW-9) a"d Ramjila! (PW-9) "isre moyir'g, at thct tinie present appeUaR+s a"d deceased Yadr'cir' came t.here and have asseiulted Lciit and fflmputoted his hwds a"d iegs. F-I.R. was lodged by I^Q??1 ii'ct! yjdB Ex.P/8. Tn 'urffd was ssnt for ?nffdlco! exot!1^inntion Qnd CT.?nnutoition ^ r —--*•? —-— ^~- —— •- ~ -»••• • i — B .;<—-«.—,. •—^.•f—c-i--•— . .W . — .— -,.»;.y- of !"?ibs w^re found. ProDer'ty were recoyersd. .4fte'r' recor'd!Fl<3 If'e s+atements of the witnesses under Sect'on 161 of the Code a"d after compietion of inuestigation, cherge sheet was filed in the Court of the Chief J^udicla! Mot^istr^tts^ ^ai^Qr'h who 'n tyr" com!nitted the CQS®to the Cour't of Special Judge, Raigarh fro"' where the First Additional Sessions. -Judge, Raigarh receiyed the samfi on tnmsfer for" tr'in!. 4. I" order to proye the guilt of the accused/cypeMants, the prosecutio" has exan'ined as inany as 10 witnesses. Statements of the accused/appellants wet^ recorded under* Ssction 313 of tiie Code whesr'e thsy denisd the circumstanc^s fi©Gear*"QaQalnst tf)e?n ond 'rtnocsncv cfd fclse itrtD!ic'stion is c'ciiwscj. LsQry!'^d F"nst Addit'oia! Ssssions Judgs after ciffording syl ODt?orltu"ltv of hesr'iiQ to the Do'rties. convicted ond sentencsd •K^e _c©peHQnts QS aforementioned. 5. I ha"e hecrd Shri Rajendra Tripathi, ciiunsel for the appel!cm+s and Shri Sushi! Dubey Goveivw't Adyocnte of the Stats/rsspondent and perused the iudgment "npugned ond record of the trial Court. 6. Learned counsel oppearing fof "the cppelk'nts argues that injured witness Laiit (PW-9) has not deposed anything against the present cppella-its cnd has specificfliNy deposed that deceased yadram has caused fata! injury to hin" by ffadasi a"d in the light of the eyidence of Lalit, convictio" and sentence of the coDellonts 's not sustninable undsr" the lcw- "l'^t;:j ^ 7, 0" 'tt'e other hQ?icl. !es>nr*ed coun^l for' the Stexte/resDondent supported the iudg"'ent irnpugned and <irgues that though Lalit (PW-9) hfs "ot suppo''ted the case of the prosecutio", but ftan'jila! (PW-6) who was QccomDonied the i" iured ond has 'odQed 'Hie reDort ond hos suDOorted 1tls c<]i5e of the Drosecut'on whlch is sufficient for drQW!nQ inference l^at the present appellonts are the persons who haye caused fata! injury to Ln!i+. 8. In or'der to oDDy*scirtte th®cortt^ntions of the DCirties, I hnye excimined the syicieyic^ QyQi labte on r^corct. Bol^is th@ DQr'tlss ho.ye not diSDutsd the iniury found over the body of injured Lalit and amputation of limbs itself is dcyiQerous f?iiurv onc! it c<xn be a3'fe!v inferred 'ri^Qt atte"1i£)t+0 comtnt+ !nurder has been commi+ted uoon Laiit. 9- As regards the cowplicity of l^e accused/Qppelisnts iri the crime i" ausst'o". Lfi'Ht fPW-911 hcs SDecific<>!ly dsDosed "ttiQt his I'mbs wer®clmDUtated by Yadram (deceased accused) CLid has specifically deposed in pcra-4 of his eyidence that +he present e^pellants have not cnused ony injury. They have not caught hold. They haye neithe'' assaulted hini nor committed ffl'iy offence. The Drosecution hois dsclored h^ as hosti!^. He has not su&Dorted ths case of tiTe Dr*osscljtion. Oamiila! fPW-6^ second ond mQtertQ! evswltnsss hcls deDosed i" hls evidence l^iat a!! ths Gccused Der'sons hoye Qssaulted LQJit Gyd LQ!it fel! ciown. He went to the house of Lalit to inform his rlel<stiyes and when he cawe bcick to the SDot a!o^Q yyith rel&tives of La!*t. then hs ctnd re'atiy^s of LoHt saw that iimbs of Lalit were an'Dutated nnd Lalit told hiw that Joaiak>'n'n and Bhur'wa hotya Qi'nDutc'ted his !imbs. Hs has Qdmltted in Dolr>QI"10 of his cr*oss-e?<amiriation that when he cJGII?le brtck to th®seot at that ti??le he saw Lrt!it whose !'wbs were arflDutated rtnd ^o occused wa< Drlesent on ths SDot. I+ shows thot he hos not seen ^t1e aDDe!lo^+5 for* c^ajsinQ fsta! !r*iury to injur'sc! La!it but he has see" Lalit 'n injured condition which is not disputed by the defencs. "H^e Drosecut'on is r'esouirec! to DF*oye its cexss bv flidduciuQ re!iab!e eyidence. 10. In the light of the statement of injured Lalit (PW-9), it is difficult to ho!d tho'1 ths Dresent c©De!lnntswere in shnrli^ct 1+le cowfno" inte"t*o" or independentiy commi+ted the offence punishab'e under Sect'on 307/34 of tha Inci*Q?l> ?£"€'!Code. 11. For* the for>eQoin€! reasons. "tihe iudQment is "ot sustcEi"Qblft under' 1+*e !aw. The cypeal i.s allowed. Judgn'e"t of conv'ctio" a".d order of sentence is hspsbv set oside. T1ni€ QQoello^ts GPS on bcE'L Thsir* baii bonds rtr*s d'schcirQsd and they "eed not surrender" before the Court. .Sri/_^==ana~ i"1- Snarnia Judge B/- ^