..•t-: "•^••'^Sfh ''?•> K;; ^.is,«a.: '5 ;..:.aeasi HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri RaieevGuDta. C.J. & Hon'ble Shri Sunil KumarSinha, J. B Criminal Appeal No. 198 of 1992 Dhumdas & Others Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT JEoLCQDsideratiorL Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^L^^-^2- CJ . Sd/- ChiefJustice PostforJudgment :^.&/08/2010 Sd/- Sunil Kumar Sinha Judge ^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'bte ShriSunit Kumar Sinha. J. APPELLANTS RESPONDENT Criminal Appeal No. 198 of 1992 1 Dhumdas S/o Ramprasad Satnami aged 25 years, R/o Sardhabhatta, P.S. Sarsiwa, Distf. Raipur (MP) (Now Chhattisgarh) 2 Shriram S/o Mangaldas Satnami, aged 45 years 3 Chetan alias Chattan Singh S/o Ramdulari, aged 35 years Appellants 2 & 3 both R/o Andola, P.S. Sarangarh, Distt. Raigarh (M.P.) (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) 1 (Criminal AppealunderSection374 (2) ofThe Code ofCriminal Procedure, 1973) Appearance: Mr. Sanjay Agrawal, Advocate for appellant No. 1. Mr. Varun Sharma, Advocate for appellant No.2. Mr. Vijay Krishnarao Deshmukh, Advocate for appellant No.3. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (28.08.2010) / ' Following judgment d-fr- the Court was delivered by Synil KymarSjnha, J. (1) This appeal is directed,against;the;judgment dated 24 January, •I. 1992 passed in SessionsTrial No. 73/90, bythe First Additional Sessions Juctge,: Raigarh. . w Criminal Auueal No. 198 of 1992 Bt>. (2) Appellant No.1 - Dhumdas has been convicted u/s 302 IPC and Section 25 (1) (ka) & Section 27 of the Arms Act and sentenced to undergo imprisonment for life and R.l. for 1 year in two counts with a further direction to run the sentences concurrently. The two other appellants have been convicted u/s 302/34 IPC. (3) The facts, briefly stated, are as under:-; ; Deceased- Ghasiyadas was Sarpanch of village Andola. On 10.3.90 at about 10.00 p.m., he was sleeping on a cot in verandah of his house. His son Bhimsen (PW-25) was also present in the house. Bhimsen heard the sound of gun-shot. He rushed to the verandah and saw thaf his father had received gun-shot injury. He also saw three persons running away from that place. He tried to chase them but he coutd not reach to them. He could not identify those persons, The deceased died on the way to the hospital. Bhimsen (PW-25) lodged the Firstlnformation Report (Ex.-P/22) at about 2.45 a.m. on 1 1.3.90. The merg intimation was also lodged. In the F.I.R., Bhimsen very specifically mentioned that he could not identify the persons who were running away from the place of occurrence. However, he raised suspicion against appellant- Shriram ahd Chattan Singh on account of previous animosity relating to Panchayat Elections. During the course of investigation, Dhumdas was taken into custody and his memorandum statement (Ex.-P/5) u/s 27 of the Evidence Act was recorded on 12.3.90 and one deshi-katta, one live cactnclg'e, oneemptycartrjdge.andspmeofherarticles were seized at his instance under Ex.-P/6. Memorandum statement (Ex.- P/7) of appellant-Shrtram was also recorded on 12.3.90 and a bleK)d stained toong; was seized at his instance under Ex.-P/S. The seized articles were sent for their chemical examination to Forensic Science'Laboratory,Sagar, fr.om where, a report (Ex.-P/30) was received. According to the F.S.L. report blood stains were found on foong/seized from the possession of appellant-Shriram. However, "I./ Criminal Aopeal No. 198 of 1992 according to Serologist report (Ex.-P/32), the origin of blood could not be established on account of disintegration. The katta was also examined by Ballistic expert who gave his report Ex.-P/29. It was found in running condition. However, the expert could not opine that the empty cartridg'e was fired by the same katta which was sent for examination. . (4) The learned Sessions Court relied on the testimony of Bhimsen (PW-25). It also relied on memorandum and seizure proved by the witnesses, and on the basis of resemblance of the cloths which the assailants were allegedly wearing and the cloths seized from the possession of the above appellants, held that the appellants were the authorofcrime. (5) Learned counsel appearing on behalf of the appellants argued that even if it is held that appellant-Dhumdas was found in possession of the above fire arm and a loongiwas seized from the possession of appellant- Shriram, the appellants would not be responsible forcommission of murder of the deceased. About the circumstance of resemblance of cloths, they argued that no description of the cloths was given by Bhimsen (PW-25) in the F.1.R. (Ex.-P/22), therefore, on the basis of common cloths seized from the possession ofthe appellants, theycannot be held liable for punishment u/s 302/34 IPC. (6) On the other hand, Mr. J.A: Lohani, learned Panel Lawyer s appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and .liaye also perused the records ofthe sessions case. '.^^.--.-;.-.-J Criminal Appeal No. 198 of 1992 fk (8) Bhimsen (PW-25 - son of the deceased) immediately rushed to the place of occurrence and saw that three persons were running towards the dark side. The incident took place at about 10.00 p.m. and the F.I.R. (Ex.- P/22) was lodged by him at about 2.45 a.m. on the next day. In the F.1.R., he clearly mentioned that he could not identify the persons who were running away from the place of occurrence. He only raised suspicion against appellants Shriram & Chattan Singh due to previous animosity on account of Panchayat EIections. Maheshram (PW-20) is another witness who also reached on the spot immediately. Me deposed that he identified that one of the three assailants was Dhumdas, He chased the assailants along with Bhi,msen (PW-25)as he.followed him whenhe was running behind the assailants. He was confronted with his 161 statement (Ex.- D/1) as all thiswas omission in his 161 statement. He deposed that he had told the name of assailant-Dhumdas to the police but he cannot tell the reason as;to why the same was notwritten by the police in his 161 statement. (9) The learned Sessions Judge has given much importance to the discovery statements made by appellants Dhumdas & Shriram and the articles seized on their instances. Even ifwetake that the above articles were seized at the instances of the appellants, it would not be appropriate to award convietion'u/s 302 IPC to the appellants only on such evidence. / , . . ' The .seizure of toong/ atthe instance of appellant-Shriram is of no use because the origin of blood stains found on loongi was not established. Even otherwise, it was an explainable circumstance. Likewise on the basis of seizure pf /(afta from the possession of appellant-Dhumdas, he canriot be held responsible for an offence of murder punishable u/s 302 Criminal Aupeal No. 198 of 1992 IPC. The Sessions Judge has very much stressed upon the evidence of resemblance of the cloths of the assailants and cloths seized from the possession of the appellants. Bhimsen (PW-25) has not mentioned in the F.1.R. (Ex.-P/22) eifher about the physic or about the .cloths of the persons whom he saw runoing away from the place of occurrence. In the Court evidence, he mentioned about the cloths which the above persons were wearing. Even if there was some resemblance in the cloths seized from the possession of the appellants and the cloths of the persons running away from the place of occurrence, who according to the prosecution were assailants, though no such evidence is there on record, we feel it difficult to hold the appellants guilty of the offence only on the basis of the said evidence. We note that the cloths are ordinary cloths like full-pant, shirt, foong/ etc. and only on this basis the conviction was not possible. (10) In theabove facts and circumstances of the case, we do not find any cogent and reliable evidence for conviction of the appellants u/s 302 or 302/34 IPC for commission of murder of deceased-Ghasiyadas. Therefore, the conviction and sentences awarded to the appellants u/ss 302, 302/34 IPC deserve to be set-aside. (11) Sofaras conviction ofappellant-Dhumdas u/s25 of the Arms Act is concerned) .ftiat has to be upheld. It was established beyond all reasonable doubts that a deshi-katta and live cartridge was seized from ,his possession which he possessed in contravention of Section 3 ofthe Arms Act. The above facts were established by the evidence of -L-ill— ^z\ Criminal Aupeal No. 198 of 1992 Investigating Officer, Mukesh Khare (PW-26) and the two eye-witnesses ofmemorandums and seizures Raghubir (PW-7) &Awadhram (PW-11). (12) In the result, the appeal is partly allowed. The conviction and sentences awarded to the appellants u/ss 302 & 302/34 IPC are set-aside and they are acquitted of the above charges. The conviction and sentence awarded to appellant-Dhumdas u/s 27 of the Arms Act is also set-aside. However, his conviction u/s 25 of the Arms Act is maintained. He has been sentenced to 1 year R.l. u/s 25 of the Arms Act which he has already undergone. Appellants Dhumdas and Shriram are on bail. Their bail bonds are cancelled and their sureties stand discharged. Appellant Chetan @ Chattan Singh is in jail on account of some default. He be released forth with if not reqyired in anypther case. .r: SdA chiefJustice r----T; Sd/- Sunil Kumar Sinha Judge ./,'' vatti