^t!,:"^^:-^^?^^.^^'?^'^:.^5^'; :-"-1 i^^|ffi^S?BSGBalts!i||E •^"ICjSSsslS'i)Bfa 'iBo'H^liythHig^CourttegalSerwssCiifflnKtiee ^ -."-^ ' . ' ^ '\f^/i*r': Bivinon Bendi (Criminal^^: |3|g ^" "*ast8tet ^, ^ ^-. ,ML,' ^>i '.' JS •SBS HEB GQUBI O? JBXiIGA'I'OBB A2 J ALPUa (H.P.) GanaKAi. AFP&&I. H0.'3<:€\ o?i99s Sitgram, aged about 30years, S/o Bamdev Kahar, K/o Vill. Obara &arhVa Sibar, Brahma ^ara AaMfcapur, Distt. Sargnja. ..p.) T £& 3BS 2be 3tate of M.P., through E&lice StatioD- AmbiKapur, Distt. AabilcaFQrtM.P.) **** _M i-UI2. (IH JAIL ) QB.XSfSAi AIPPSAL WSSS. SKG2IOH 374 (2$) O? SiE SODS OF GfiIMIKAL i-aOGBuD&E. ,GOUa_XiKS- XI-HC-22 ^Sf ^T'SIRPI, a^ETTC, ^TRiy tira?IT ai*ii<C 311^1-^I ^^aii^r ^-ilch ^TI^d sn^rTRnwHftci efiT^l^frlf 'HTR^Tf ^ 'f^St •(^(•(^R- ^ sri-?n an^i Dhfision Bench: • Hon'ble Mr; L.C. Bhadoo and yon'ble Mr. Ohirendra Mishra. •l.t 3.4-2006 Miss Sharmila Singhai, Mr. Ravindra Agrawai, Pane|l With ttie consent of disposat. Orai judgment dictated on Per L.G. Bhadoo. J: - By thjs appeat undet Proesdure, accused/appellant correctness of the judgment of November, 1898, passed bythe Sessions Trial No.^/96, whereb'il the accused/appeiiant aiong commission of offence under ssntenced each of th®accused to ] fine of Rs.200/-, jn default of imprisonment for fciur months. under Section 201 offtse i.P.C. cou(]sel forflieappeliant. Lawyerforthe Statefrespondent. respect(ve counsei, Uie appeal is heard for ftnal Qafs. Secjtiw 374 (2) of the Gode of Criminai S|iteram has questioned iegalfty ahd corlviction and Order of sentence dated 20 S|ess|ons Judge, Surguja (Ambikapur), in teamed Sesstons ^udge after hoiding with one Nirmal @ Niranjan guitty for S^ction 302 of the Indlan Penal Code, |undsrgo imprtsonment for life and pay a payment crf fine to further undergo ^cwrever, they were acquittod of charge The case of Uw prosecutioti, (PW-8) lodged fhe Fsret jnformatjon Ambikapur on Xth November, 19^5, 7 p.m; when he was af his residehce , in brief,is that Niteah Kumar Gupte Rsport (Ex.P-10) in Poiice Stetion: s to the effect that on that <tey at about >, Sitaram & Ntrmal Nagesia came to [1if^^n^^ XI-HC-22 sn^rqiT 1^ri?i'3n|RT "g^Ri^) -yfifl -T3? ^qT'lRR,'®1 til'i«?tT*11cfi ira^ , ,,.&.A..&o^ ra> -20iL ^BFiiepih IIPRS ^ fe^t mr(?R i? siSail sn^l his house from Darripara side, h| snquired abput liquor on whjch his at fte residence, therefore, they After some time, he heard the ratUj Sowards otd farick kiln, that raised forgotten the (rassage.hs went to| disiance that they were iifting the b<|i th®body towards Vne pjt <rf brick ki| they should leave the body there o< came back to his house and inform4<3 about the jncident on which all lh< saw teat the i»ctyof a person was S ftere. The body was naked anei th< body. faiher. was also at residence, they ^iihsr reptied that liquor is not availabte ift tcwards westem side ofthe pond. jng noise of rickshaw *flrtiich was going <(oubt in his mind ttiat they migU have e !eft side and saw them at some >dy of a pereon from the riekshaw, took ^1 and they started taiking that whether some where else. On seeirig this, he hislather and peraons <rfUie viciniSy pereons went iovirards that sjde and /ing and Nirmal & Sitaram WBresitting tre were bioodsteins on th®face of th$ Recewing this report, fte g Ambikapur, registered the F.i.R. ^xi and took into possesston biood and one handkerchief from the pla| aiso took into possession from ynderwear, one fuit pant of Leo ms Panehriama of the dead body Ex. Ex P-7 to fts Panchas. Ohe Nirma! under Ex.P-6. The examination to ttie Di'strict Hospital, B.S. Sengar (PW-3) conducted p mortem rspdrt (Ex.P-3). stefined Siyram (tation House OfRcer, Poilce Stafon: [P-10), ieft for the scsne of occurrence soii, plain soil, one nylon socks |»of occurrenee under Ex.P-14. He i, one yeiiow colour aweater, one lite and one Baniyan under Ex.P-15. !js-8 vras prepared after gmng notice was taksn into possession from body was sent for post-mortem [^mbikapur; under Ex.P-12, where Dr. i|3si-mortem and prefared the post* [^ ^[o^ swetner deatl liiia^ . i-HC-22 31lt?I^?I r<-<i.'*i 311^1 St^iicft ^fl ;¥S!E?i3^:J -3^'aipncPT, ri-dlwie, faclltiy 'WHR'TTWira? ^&..^9^^ sn^i'FRnisre^fiCT -3, After compietion of inve^t Court bf Chie^ Judtejal Magistralie, case to ihe Sessions Judge, Amfejikapur Ttie prosecution in orderl persons examined ien witnesse^. accused persons were recorded they denied Uie prosecution e\| faiseiyimplicatedinthecrime. Leamed Sessions Judge eounsei convicted and sentenc^d mentionsd in para 1 of&tsjudgrr( We have heard Miss Stlarmila appeliant and Mr. Ravmdra Agi^wal, the State/respondent. The homicidal death ofSW As !5ar as mvolvement oj accusedin the crime in que^iof was tfie informant Nitesh Kuma( He has not supported ttie prosecj tfiat at about 8 p.m. he was at hi^ near his house, ha saw ttere twb from fteir hands and thereaSer, | them saw that these two personsj go to the Poiice StaUon. He has| ?iPrf?Ffri! TffTOf •?•fe'sr'rfSRSR ^; SlPOT 3t]^I fUgation, charge sneet was flled In the Ambikapur, who inturn committed tt® I'kapur, fortriai. |to estebiish charge agsinst he accused ^. On th®^ier hand, statemente of the tinder Section 313 ofttie Cr.P.C. in whieh |idence and stated ftat Uiey have been |ifter hearing die argumente of respsstive She appeliant and the co-accused as tent Singhai, teamed counsei for the , tamed Panel Lawyer on behatf of Vnath Upadhyayte not m dispute. f the aceused/app^lant atong witf) co- 1 is concemsd, ttie mam wttness in ihis t Gupta (PW-8) who has faimed hostBe. ution case. He has stated in his widence > resictence, there is a pit in the brick kiln persons wfto wem dropping' somathing he informed Ws neighbourers and ait of werethere. Thereafter, he wasasked to furttier stated in his evidence Uiat he had [Tft^^firt sn^i'?;! ft-<i+.. 3D^?[ . St)Hlch ^T!?^ 's^l: -t- 7ST ^nqRra,, 'd^W, f°f?TR?y ll!t|<?tl Shliqi ..^.A^o^? ra? -296-^ sii^i ^gwafCT • -^ cross-®<atnjnation Spngh not seen the accused psrsons] declaring hostite on wtoess has not supported.even| Other witasss namely, Heera stated :tt)at hs had not seenl occurrence. Vijay Prasad Gupt^ two pereons were standing near| whsther fte accused persons has also been daclared hostM been decfared hosfiie and he seen ihe aa;used ^ersons at th^ (PW-6) has aiso been deciared cass.: ! . ' :; at the place <rf ocaurraice. E\»n after by fte Public Prosecutor, this |fte first informatjon report lodged by him. (PW-1) has aiso turned hosUle and the accused persons at tfts place of (PW-4) has stated in his evidence that |the pit and today h^ is not ab!e to identify standjng there or not This wtriess Similariy, Hansuram ^W-S) has aiso steted in his evidence tiiat he had not piace of occuirence. Simttariy, Kanhaiya Ihosfite and not supported tt»eprosecutron v|®re hbs hbs Therefore, tftere is no 9$, the investigating Offteer, Noyember, 1^5, at about 22.|] lodged the firet informaCon repoiji of occurrence on 1-12-1985 andl prepared fte Panchanama (Ei(. Panchas. The dead body was he reached fte placeof Nirmal & Sitaram wers aiso fuli sieeves swsater of black accused Nirmal under Ex.P-5. possession and ths sweater whi^; Ni'rmat has not been identlfled b* occur<ence sitiihfl .+l''<td'ii^ tTORJf '9 fS'ZT <M<$K •^ 3TfS(TlT 3ITOT wititess to Uie incident. N.P. Upadhyay (PW- stated in his evklence that on 3Qtft .[15 houre, Nitesh Kumar Gupta (PW-8) rji (Ex.P-10), therefore. he toft for tti®place lafterTeaching Uw place Qfoccurrenee, he j.P-8) ater giving notice Ex.P-7 to the ^ent for post-mortem e)am(nation. When in the night he saw that accused there along with other persons. pne t»lour nas taken (nto possession from Even the rickshaw was not taken into th was sajd to have besn recQVsred firom an^ody to fhs effect that samsisefmgs [^^Rfs^ j5SB^@E gS^SS£ XI-HC-22 SII^iqiI irsil^?! ^tlWHftd .<y.^ * *?^y -4T- •s^ ^OTi?ra, .^frITTrs', feroy *<l*iWI ShHictt ira^ / ..&.:.0..,&o4^2T_^ N;""""'"""""""""""""7'^t 'wl— 3<A!'l gWIW?!*?^ --? to the deceased. Khemraj Singh ^W-IO), the Poitee Consteble, has stated in his evidence that he was ssi^t on duty on receiving the report, but he does not remember WheUier th^ vicinify peopte have detained two rickshaw-watas at the place of occurr^ncs or not In para 5 he has stated fta$ botti tiie accused persons v/ers s|tting along wsth ottsr psrsons at ths piace of occurrence. 1 The prosecutlon has not been|able to bring on record any matertai to show that in any way, the accjjsed persons carried fte body of deceased Shivnaft Upadhyay in ttie ipckshaw in qusstion or anybody saw tftem Itfting the body from rickshaw aijid place the same in th®pt near 9 brick kiln. Even th®sweater, which if/ss reoovered from accused Nirmat, has not t»en idsniffied by anybod^ fliat same was bejongmg to flie decsased. Therefore, virtually there i^ no evidence in this cas®to eonnect accused/appeliant Sitara»n ancf co-4ccused Nirmai mfh the crime in question. in the circumstances, findfng of ttie trial Court convicUng th® accused/appellantcannotbe sustaine^- As in this case,the prosecuto|i has not been abie to produce any widence to connect the accused/appjsllant along wth co-accused Nirmat with tti®crime in qussBon, i.e. murd^r ofShivnath Upadhyay, therefore, ws attow the appeal bf Steram. The |udgmsnt of the tria! Court convicting and sentencing the accused/appel!an|E under Section 302 of ttie i.P.C. is se< aside. He is acqujttecl cf diarg®|under Seetion 302 of the i.P.C. He be set at Uberty forthwitti, If not requlrajl in any otter case. Parties are entitted for certified 4opy aS thfe orde», Sd/- ' '!•_ L.C.BHADOO Judge - qwrciil-i wf?S 4 ft^t '(fSp?R ^s'fitm.sT^r .J-.-—- ['qM ^1^4