^\ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. 8HARMA & HON'BLB MR. R.L. JHAHWAR. JJ. AQQU. APPEAL N0. 28 OF 20J.1 APPELLANT/ COMPLAINANT RESPONDENTS Suresh Prasad Mishra, S/o Surya Bhan Prasad Mishra, Aged about 60 years, R/o ViUage Severa, Pndra Road, District Bilaspur C.G. State of Chhatdsgarh, Through Police Station Pendra Road, District Bilaspur C.G. Prem Singh S/o Sambhu Sii^h Gond, Aged about 22 years, Tribuhan Singh, S/o Heera Singh Qond, Aged about 22 years. Smt. Rajkumari W/o Prem Singh, Aged about 20 years, Smt. 8hiv Kumari W/o Tribuhan Singh, Aged about 19 years, AU resident of ViIlage-Severa, Thana-Pendra Road, Bilaspur Chhattisgarh. AOOU. APPEAL UNDER SBCTION 372 PROVI (11 OF THE CODE OF CRIMINAL PROCE3)URE. Presenfc- Mr. T.K. Tiwari, Advocate for the appeUaat. Mr. R.R. Sinha, P.L. for the State/respondcnt No. 1. Respondents No. 2 to 5 not noticed. Vs, 1. 2. 3. 4. 5. ORAL-JUDGBMBNT (Passedoa 06/04/2011) ff The foUowing iudganeift of fhe Conrt was oassed bv T.P. Sharma, J:- ^ 1. By fhis acquittal appeal under Section 372 Provi. (1) ofthe Code of Criminal Procedure, (in short the 'Code') appellaut has chatlenged F° - . ^ v« fhe legalily and propriely of fhe judgment of acqiiittal dated 3f 2f'2,011 passed by Additioiial Sessions Judge, Pcadia Road, Dista-ict Bilaspur (C.G.) in Sessions Trial No. 11/10 whereby karued Additional Sessions Judge, Peadra Road, Distnct Bilaspur (C.G.) has acqultted rcspondents No. 2 to 5 of the charges of Sections 302, 302/34, 302/ 120-B ofthe Indian Penal Code. 2, Mr, T.K. Tiwari, Advocate for the appellant aad Mr. R.R. Siaha, P.L. for fhe State/respondent No. 1 are heard. 3. Judgment itupugued aad record of Courts below perused. 4, Leamed coimsel for fhe appeBaut vehemcntly subxBttts fhat prosecution has adduced sufficient evidence to comieet fhe respondents No. 2 to 5 in crune iu qucstion speciatty relatii^ to thc conspiracy of fhe cominission of inuider of two persons nainely Sharda & Narmada but ignormg the evidencc of prosecution, Court below has iUegaUy acquitted the respondents No. 2 to 5 and thereby conunitted aa iUegaUly. 5. Leamed couitsel for the appeBaat further submits fhat as ^r evidence of PW1 Szuesh Mishra, his son Nannada has left his house after receiviag the telephone ia inobile thereafter he did not conie back aad his dead body was fouad along wifh dead body of Sharda. 6. Learued counsel fbr fhe appeUaat also subniits that vrcapon offhfi ofFence i.e. betel axe Tsaa been recovered at the instauce of ^ r ' f respondent No. 2 Prein Singh; no explanation has been offcred on behalfoffhe Preiu Singh that how such weapon has been rccovered at his iastence. Prosecution has also recovered piece of mobile at the instaace of respondents No. 2 to 5 belongu^ to the deceased. -*> &S3;&§S^. 1 i '•'t^B?"" ?^ As per evidence of PW6 Rajesh Gond, before soaie days of thc incident accused Rajkuinan has coUected the mobile number of Narmada and Sharda & Narmada are also inoving near fhe house of Rajki.uaari, PW7 Ashok Yadav has also proved fhe series ofinobite by Rajkumari. 7. Leamed counsel for the appeUaut also subuaits fhat thcse evidenee are suf&cient for cormecting respondents No. 2 to 5 for conunission of oflTence. Respondents No. 2 to 5 have committed conspiracy and inurder of two persons but Court below has not considered fhe aforesaid evidence. 8. On the other haad, leamed counsel for the Slate/respondent No. 1 opposed the appeal. 9. This is appeal ^ainst fhe judgment ofacqujttal ofrespondents No. 2 tff'S'&oin fhe aforesaid char^es. In order to proof fhe gullt of ..^F respondents No. 2 to 5, prosccution was under obl^ation to proof fhe facts i.e. homicidal deafh of Sharda & Narmada aad to adduce ''sufficient evidence to connect fhe respondents No. 2 to 5 in crune in question. Ifevidence ofPWlSuresh Mishrais considered cven ia its face value fhen only presumption would tie possible that his son left his house after receiviag telephone caU fhereafter he did not coine back Iiis house. On second day, his mjiu-ed dead body aad dead body of Sharda was found ia some field. Alfhough, prosecution has not proved recovciy of the articlc for ttie sake of argument if it is assiuned fhat^ bctel axe aad piece of aiobile recovered at the iastance of i^spondents No. 2 to 5 fhen even by recoveiy by itself is not suf&cient to establish ftie fact fhat injuiy found over the body ofdeceased were caused onty by aforesaid betel 'A I, 'is3p3JJ ' '^%R.5i'y '"'•S—E''"" • '^^ -f! axe recovered at the iastaace of respondent Preia Siugh and pfece of mobUe phone recovered were parts of ceU phone used by deceased, Evidence of aforesakl witaesscs inay be sufBcient for castmg doubt or creating prinia facie suspicion against fhe respondents No. 2 to 5 but aforesaid evidence are not sufficient for amviag at definite findiag that respondents No. 2 to 5 havc coTninitted aforesaid ofFence. 1Q. After appreciating the evidcnce available on record learaed Additiional Sessions Judge, Pendra Road, District Bilaspur (C.G.) has acquitted fhe respondents No. 2 to 5 offhe chai^es after giving the benefit ofdoubt, we do not find auy iUegali^ ia fhe judgmcnt impugned aad we are unabte to take diffeient wcw in fhe present case. Therefore, we do not fiiid aay ground for tuterfercnce in fhe judgiit&f ofacquittaL ConsequenUy, acquittal appeal is liable to be -^ disnussed aud is hereby disintesed, Sd/- T.P. Saarma Judge Sd/- R.L. Jhanwar Judge -f