HiGi-i COURT OF CHHATT‘SGARH AT BELASPUR Criminai Appeai No.1083/1§93 So'nan Lai Yadav Sin Radhesnyam Yadav aged about 2O years, ‘R/o Shriram Chowk, Tikrapara, Raipur. IEPPELLANT Versus State of MP. (now CG) And Criminai Apggai' No.1161l1993 RESPONBENT APPELLAm; i Béila alias Balram‘ aged about 2O years, son of Shri Roopsingh Thakur; Resident of Shriram Chowk, Tikrapara, Raipur, District Raipur, M.P. (now ‘ ‘ 0G.) - Versus The State of Madhya Pradesn (now Chhattisgarh) (APPEALS UNDER SECTION 374(2) OF THE CODE OF CRiMiNAL PROCEDURE, 1973) ResPONbENT (sB: Hon’bie Mr. T.P. Shanna, Ji; Present: Mr;B.N.Pandey, counsei for the appeliant in CLA. No.1083/1993. MriRavi Bhagat, counsel for the appellant in Cr.A.No.1 161/1 993. MriRakesh Kumar J‘ha, Dy.Govt.Advocate for the State. é‘ 0 JuoGMENT (Delivered on 30‘“ Juiy, 2010) 1. riminai Appeai No.1083/1993 tiied by Sohan Lai Yadav & Criminai 'Appeai No.1 161/1 993 fiied by Baiia aiias Bairam are arising out oi the judgment of conviction & order of sentence dated 259.1993 passed by the ‘3'“ ‘Additionai seesioris’imdge, Raipur in Sessions Triai No.293/91, .. i therefore, they are being disposed of by this common judgment. The aforesaid criminai appeais are directed against the iudgment of conviction & order of sentence dated 25.9.1993 passed by the 3'“ Additionai Sessions Judge, Raipur in Sessions Triai No.298/91, i 0t whereby & whereunder laamed 3"“ Additionai Sessions Judge after holding appeilant 3ohan La’i Yadav gumy far the Offence punishabie , under Section 307 of the indian Penal Code and appeiiant Baiia guiity ' tor the ottence punishabie under Section 367 read with Section 34 of me ‘mdian Penal Code sentenced them to undergo rigorous imprisonment for five years, respectiveiy‘ Conviction is impugned on the ground that without there being any evrde‘noe, especiaiiy evidence of identification in case of unknown accused persons, the triai Couri has convicted & sentenced the appeiian‘is as aforementioned and thereby committed iiiegaiity. , f.P Case of the prosecution, in brief, is that on 4.231 at about 8.10 pm. iniured §niVprasad;was coming to 'nis house by iuna moped atong with Menghu Ram (PW-i), white they were passing near tubeweii, two persons were standing, they tried to stop the compiainant, when he stopped his moped, then one person caught hoid his hands and puiied down him from moped and other accused was having dragger (ku‘Kri) and assaulted twice ’oy dragger on his abdomen, they aiso pushed Menghu Ram, complainant Shivprasad cried for heip, then their reiatives came to the spot, assaiiants were unknown. He immediateiy iodged dehati naii hi vide EXP/i. Bioodstained ciothes of the oompiainant were seized vide ExPiZ. He was sent tor medicai examination i . .. vrde i u tXrP/t’i. r He was examined . . oy . the dootor and inimediatety shifted to D.K,Hospitai, Raipur tor treatment where surgery was conducted by Dr.P.i(.Pandey (PW-11) vide Ek.Plt8A and found sta‘o wound over abdomen attesting iarge intestine & smaii intestine and huge quantity of biood was tound inside mesen‘tery. iniury was tatai to iit‘e. He was aiso examined by DrRamkumar Pandey (PW—5) vide ipdged Ex.Pi14 vide EXP/19. and found Ciothes stab injury were and aiso stitch examined. wound. Test Finaiiy identification F.i.R. was parade was conducted“ and compiainant Shivprasad and witness Menghu Ram have identitied.the appeiiants vide Ex.P/3. Accused Baiia made disoiosure statement. of betei axe Vide EXPIQ, same was recovered from Shankar Lai vide EXPM. Accused Sohan made discicsure statement of dragger Vide EXPHO, same was recovered from Shankar vide EXP/5. Accused Baiia aiss made disciosure statement of ciothes v‘me cx P’H same were. recovered from him vide EA P16 Accusea Schan aasu made aascmsure satement of domes wde Ex Pl12 same were recovered from mm Vlce ex P17 Accused Punau made disc§oeure statement of clothes vme tx.PI‘.3, sarre were recavered from him vide EXP/‘8. Statement of the witnesses were recorded under Sec‘don 161 of the Cr P C and after cempteuen of investigation charge sheet was fited be ore the Additionai Cmer Judrcral Magistrate, Karpur wno m turn committed the case to the Court or Sess.ons, Ralpu. from w ere teamed 3"“ Additional Sessions Judge, Ratpur received the case on transfer jor triaL tn order to prove the gum of the accusedrappenants the osecu ion has e ammed as mar“, as eieven Witnesses The cused/aypettams were examined under Seorion 3 i e of the Cr.P.C. vmere they denied me circumstances appearing against them and pieaded innocence and faiSe impiicatton in the crime in question. After affording opportunity of hearing to the parties, teamed 3‘“ Additionai Sessions Judge, Raipur white acquitting co—accused Punau Sahu and Shankar Lat convicted & sentenced the appetiants as aforementioned. i have heard Mr.B:N.Pand_ey, counsei for appeiiant Sohan Lai Yadav, Mr Ravr Ehagat counsel for appeiiant Baiia aiias Baiaram MLRakesh Kuma. Jha Dy Govr Advocate rcr the otate perused the judgment impugned and record of the tna. court. Learned counsei appearing. tor both ‘he appeitants vehemently aigued that in the present case they are not disputing the injuries and its nature found over the body of the compiainant but in he present case, the accused were unknown to the compiatnant incidenr toox piace at night there Was no opportun‘ty to see the accused persons, the compiainant has not gt en any description in tne F i R and iia’oiiity has been fastened upon the appeliants on.y on the basis or .oentmcation. As per evidence ct the compiainant, berore conduction of sucn identification he _ has .seen the appe:iants in pmice cusioo‘y which vitiates the tes: identification and absence of any other cogent evidence, conviction & 3entence af the appeiianis are not sustainabie under the iaw. . On the other hand, teamed State counsei supported the iudgment impugned and argued i‘nat aiieged incident took place at about 8.10 p.mf., there was ampie iig'nt and apportunity to see the appeiiante. After stopped the comptainant, they assauited him by knife and betei axe. The campiainant was having ampie opportunity to see the assaiiants and on the basis of such opportunity, the compiainant has successfuiiy identified the appeitants. Learned counsei further argued that evidence adduced 0n behait of the presecution is sufficient for definite cenciusion against the appeiiants fer the cemmissicn 0f the aforesaid offence and the triéi Count has rightiy convicted 8. sentenced the appeiiam’s as aforementioned. ' r in order to appreciate the arguments advanced-on behaif of the prosecution, i have examined the evidence adduced on hehaif of the ptosecution. 12. in the present case, iniuries caused to compiainant Shivprasad and its nature have not been substantiaiiy disputed by the appeiiants, even otherwise aiso established by the evidenceof compiainant Shivprasad (PW-2), ErRamkumar Pandey (PVV5;, his recon EXP/‘14, Dr.P.K.Fandey (Pt; ~11) and bed-head ticket EXPHB. Stab injury was found over abdomen affecting and causing injury on the iarge intestine and smaii intestine and injury was dangerous to iife. d‘ 13. As regards the oompiicity cf the appeiiants in the crime in question, conviction is substantially based on the evidence ot‘ Shivprasad (PW-2) iwho has deposed in his evidence that whiiehe was coming to his i house by tuna moped along with Menghu Ram (P‘v‘ 4), two persons stopped hirh, they caught hoid his hands but anyhow he proceeded further and again came back near the persons, they were three in numbers, he toid to Mengnu that they appears to be bad persons, then Menghu toid him that he knows them, he called his reiatives, at that time out of three persons, one person assaulted him by fist and other was directing to assauit by betei axe, then third person assauited him &/ i twi b dragger. Thir person again used betei axe over his moped. Afterearing sound his reiatives came, then the accused persons fied away from the spot. He has specrficany depose hat accused Sohan ha assauited him by dragger and accused Baiia has used pete: axe. T eiahves took himto hospital. He has iodged the FILR. EX‘PH. -‘is oi e.zeo H ais ion m ex F u a' (PW ‘ “as t ar ar ” h spoueo as or *h tio Th oseu o ciaied Hi htil itto . 3 his pma meof ent, one person assauite prd a ce y d h } d t s he? " ‘ i othes were s e has o e ed ”the assaiian‘is vice Mengh Rn 1 present on he sp b e as net up the ce e prosecun e prc n de m ose He has adhe n para of oross—exe on that at the ti‘ mom o ohNasa oy Kn i ‘ 14. Defnce has cross—examined compaihan‘r Shivprasad ih dere. There are ome contra ons in e F i R and statement reieting to use of be ax nversaon between e accused persons and descpn of e aiant n para of ede an r 14 of s cross- exaah, he ha spec epd t e poe c ed him n poiie ion where so ma boys were presen of 6 o 2 boys he o o ree rsons ave corrme e hce and asuited him. hampai Dewangan -, ho as co cted identification? has deposed in his idence that the comaihaht has identified the accused persons amongst 1G to 12 pe sons Vtoe :X i /3 and he has conducted identification to one house Kaiiash SonKar ‘ (PW-7) has aiso corroborated the evidence of Champaiai Sewangan (Pt: e). 15. .n the .ignt of eVtdence or oohpiai..ant $hivprasad (“W-m mating to ioenti.ication in the poiice station eVIdentiary value of test identi.ioation tosses its importance :Vtdence of Smprasad (PW—z) r veais that he has identified the assaiiahts amongst i0 to 12 persons before some other persons who conducted identification. 16. The is not a case where the police authorities nave snow“ the onty aiia'tts in the test identiticatio. . Ev dance of test toen ification .s not substantive piece of eVidehce'and dock identification is the oniy substantive piece of evidence. in para 1 of evidence of Shivprasad, he has soecit'ioait t deposed v that a“v eiiant Sohah has assaulted him b Tagger and other appeiiant Baiia was having betei axe and has used e i i’ s dio i *h tei e coti th ritio th ssas . 4 his vrnce o t p a hi rnmm s CIfiaiy oose hat th oh a t i C stat n t o't ‘ t to‘ ut th pe wr‘o h i'to th ote sa Cai h W6‘ w h n i t e ' pi betei axe at the time of incident, Both the appei§ant3 were present and they stopped him wh‘ue 'ne was coming to his house by iuna moped. I His evm‘ence reiatmg to {centmcatlon of the appenants m the Court :s unambiguous. U 1 g i 17. Admittediy, the compiainant was ha 'ing sumcreht opportunity to see the appeiants who have committed the inc.‘Gent tn cioee distance hardty distao of ‘i to 2 feet and he was a‘oie to identify t'ne persons who pied to commit his urder, havei caused fatai iniuries and even attem is o no heip, but dock althgh test identificaion, in the present case, ou t idenificaon of boh the accused by the cc tti t .V ‘. i dramg inference {ha mainant is sufficient fo.’ t appeiiant Sohan has assauited him by dragger in saring of common intention of another co-aocused Baiia. the evidence availabie n record, learned 3 18. ft apreciating“ apeiants as aforementioned. Considering the inturyxand commission i do not fin any iiiegai‘ity imprisonment for five years is not excessie. in th iudgment impugned. 19. Fo the foregoing reasons, Criminai Appeai i‘ios. 1083/1993 & 111/1993 being devoid of merit are iia‘oie to be dismissed and are heeby ismissed, The appeiian‘ts are on aii, w h i‘d Aditionai Sessions Judge, Raipur has convicted & sentenced the of fence after stopping the complainant in a wa sentence of rigorous they shaii surrender before the 3'” Additional Sessions Judge, Raipur for r d o imh‘rediateiy serving remaining part of sentence f sit/— ' T.‘P. Sharma Judge l/V t he m f r pi o Aer p d pii of y, d v e ‘A r 6 /