HIGH COURT OF CHHATTISGARH. BILASPUR A' e^ :1< CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri R.L. Jhanwar, J, J. Criminal Appeal No. 475 of 1993 Shanker @ Gudda Vs. TheStateofM.P. (Now State of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE R.L JHANWAR i^- For consideration Sd/- Sunil Kumar Sinha Judge Sd/- R.L. Jhanwar Judge PostforJudgment :^-/09/20K Sd/- Sunil Kumar Sinha Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:10 +0530 T HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha& Hon'ble Shri R.L. Jhanwar, J, J. APPELLANT RESPONDENT Criminal Appeal No. 475 of 1993 Shanker @ Gudda aged 18 years, son of Dunnu Nai, Resident of Mines Quarter, Chirimiri, District: Surguja (MP) (Now District Korea, CG) Versi/s TheStateofM.P. (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mrs. Savita Tiwari, Advocate for theappellant. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (21.09.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant- Shanker stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Additional Sessions Judge, Manendragarh in Sessions Trial No. 71/92 on 28th ofMay, 1993. (2) The facts, briefly stated, are as under:- Deceased- Amar Singh was student of Class- 9l. On 19.8.91 at about 7.30 p.m. his father Pusau (PW-4) sent him to bring betel from a betel shop. The allegations are that the appellant and four other co-accused persons assaulted the 1 ^ "•":' Ji I. '^.^L Criminal Appeal No. 475 of 1993 deceased near the betel shop. This was informed to the father of the deceased, who immediatety rushed to the place of occurrence and saw that the deceased was lying in injured condition. He was informed by Ramavtar (PW-2), Joginder Singh (PW-9) and betel shop-keeper that his son was assaulted by five accused persons, including the appellant. He immediately rushed to concerned police station and lodged the First Information Report (Ex.-P/S). The deceased wastaken to the hospital but he could not survive. The post-mortem examination was conducted by Dr. S.S. Suhone (PW-6). He found a penetrating wound of 2.2 cm. x 1 cm on the left side of the chest. There were cut injuries on rib and pericardium. He also found an abrasion of 0.07 cm x 0.1 cm on the right side of theface. There was huge amount of blood in thoracic cavity, and right chamber of the heart was damaged. The post- mortem report is Ex.-P/5. According to the Autopsy Surgeon, the injuries were ante-mortem and the cause of death was shock as a result of haemorrhage on account of injury to the heart. The death was homicidal in nature. The case ofthe prosecution is that five accused persons formed an unlawful assembly and in prosecution of the common object of that assembly, the deceased was assaulted by Shanker by a knife on his chest, who received the above injuries and succumbed to those injuries. Shanker was charged for commission of offence u/s 302 IPC and the other co-accused persons were charged u/s 302/149 IPC. Accused- Ganesh Domar died during the pendency of the trial, therefore, his name was deleted and only four accused persons were trial by the Sessions Court. / ^ ,;y r, Criminal Appeal No. 475 of 1993 (3) The learned Sessions Court, on a close scrutiny of the evidence led before it, acquitted the three accused persons namely Munna @ Govind, Subhash and Dinesh, however, the appellant was convicted as aforementioned. '^ (4) According to the F.1. R. (Ex.-P/S), there were three eye- witnesses of the incident namely Ramavtar (PW-2), Joginder Singh (PW-9) and the betel shop-keeper who are named in F.1.R. by father of the deceased. Later on, BokhaQU (PW-3 - uncle of the deceased), Pusau (PW-4 - father of the deceased) and Meena (PW-5 - Sister of the deceased) also came as eye-witnesses. The learned Sessions Judge discarded the testimoniesof Bokhaou (PW- 3), Pusau (PW-4) and Meena (PW-5) on the ground that 161 statements of PW-3 and PW-5 were recorded on 9.10.91 i.e. after more than 1& 1A months and their presence was also not mentioned in the F.I.R. which was promptly lodged by the father of the deceased Pusau (PW-4). The evidence of father of the deceased was also discarded on the ground that he did not mention about the incident in the F.1.R. and the facts relating to assault by the appellant to the deceased by a knife was an omission in the F.1.R. According to the version of the F.I.R., he reached to the place of occurrence after the incident. Therefore, the evidence of these witnesses appears to be a creature of after-thought. The learned Sessions Judge further held that the participation of other accused persons were not established, therefore, they cannot be convicted Criminal Appeal No. 475 of 1993 even with the aid of Section 149 IPC. However relying on the testimonies of Ramavtar (PW-2) and Joginder Singh (PW-9), the Sessions Judge held that the appellant assaulted the deoeased by a knife on his chest, therefore, he was liable for punishment u/s 302 IPC. (5) Mrs Savita Tiwari, learned counsel appearing on ibthalf of the appellant, has not disputed the homicidal death of the deceased. She arguedthat Ramavtar (PW-2) was declared hostile and Joginder Singh (PW-9) did not depose that he saw the appellant assaulting the deceased. Even after that, the appellant has been convicted, therefore, the finding of the Sessions Court is perverse on the face of evidence available on record. (6) On the other hand, Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Ramavtar (PW-2) deposed that on the fateful day at about 7.00 p.m., he was standing near the Gupta betel shop. He saw that the appellant and the deceased were scuffling. Co-accused Munna, Dinesh and Subhash were also scuffling. Bokhaou and Joginder Singh separated them and everything became alright. Joginder \ wfc Criminal Appeal No. 475 of 1993 Singh (PW-9), then went to hisshop. Thereafter the deceased and the appellant again started scuffling. Deceased- Amar Singh was holding a knife in his hand. He could not see as to how deceased- Amar Singh received knife injury. He was declared hostile by the prosecution and was cross-examined by the Public Prosecutor, but even in his cross-examination, nothing material could be brought on record. In the cross-examination by the defence, he again categorically admitted that the deceased was holding the knife and he received knife injury in scuffling (chinah-jhapti). (9) Joginder Singh (PW-9) deposed that on the fateful day, a quarrel was going on between deceased- Amar Singh, Munna, Dinesh and his friends. They were abusing Amar Singh and they were assaulting him. He had settled ttieir dispute. Thereafter he went to his shop. In the shop, he heard that deceased had received knife injury.At that time, accused Munna and Dinesh were sitting in his shop. He could not reach to the place of occurrence. On his such evidence, he was not cross-examined by the defence. (10) It is on the above evidence of these two witnesses, the learned Sessions Judge has convicted the appellant u/s 302 IPC. After going through the entire evidence of these two witnesses, we find that Joginder Singh (PW-9) did not witness the occurrence as he only heard that the deceased has received knife injury and Ramavtar (PW-2) categorically deposed that the deceased himself Criminal Appeal No. 475 of 1993 was holding the knife and he could not see as to how he received knife injury. Ramavtar (PW-2) was declared hostile by the prosecution and even after lengthy cross-examination by the Public Prosecutor nothing material could be brought on record in the evidence ofthis witness. In appreciation, we find that, in fact, there was no evidence to hold that the appellant has assaulted the deceased by knife and the learned Sessions Judge erred in law in convicting the appellant u/s 302 IPC onsuch evidence of PW-2 and PW-9. Since a quarrel had taken place between the appellant and the deceased, therefore, the appellant cannot be held responsible for commission of murder ofthe deceased on the basis of suspicion alone. (11) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.L. Jhanwar Judge vatti