.^'" / 1 ^s^ ^ ^ HIGH COURT OF CHHATTISQARH AT BILASPUR Qg: Hon'ble Mr. Sunil Kumar Sinha & , Hon'ble Mr. Radhe ShvamShamia. *M. Crimjnal Appeal No.866/1995 APPELLANTS 1. 2. 3. 4. V8 Respondent Shivcharan Son of Puntram Satnami, aged 30 year$> ^ Ambikaprasad alias Ambika, son of Kartikram Satnami. aged 26 yeare ^ Balduram Son of Tetkuram Satnami, aged 38 years , Pooran son of Batduram Satnami, aged 27 yeare. ',^ "" ':" :1:"'!'"1"11!' :"";:""l"w: All resldents of village Umtara, PS Sakti, District Bitaspur. MP (Noyy State ofChhattisgarh) . The State of Madhya Pradesh (Now State of Chhattisgarh) . fCriminal Aopeal under Section 374(2) Cr.P.C.) Present: None for the appeilante. Mr. Kishore Bhaduri, Addl.Advocate General with Mr. Ravindra Agrawal, Panel Lawyer for the State. i JUDGMENT (27.07.2011) The followlna iudamentofthe Courtwas oas^d bvSunll Kumar Slnha.J. This appea! is directed agajnst thejudgment dated 3Qth March, 1995 passed in Sessions Trial No.355/90 by the 3rd Additional Judge, to the Court of Session Judge, Bilaspur. By the impugned judgment, th®appellants have been convicted under Section 302 IPC and sentenced to undergo imprisonment for Jjfe and pay fine of Rs.5,000/- each, with default sentence ofthreeyears. "^^. ^ Crimtnal Appeal No. 566 of 1995 2. The facts, briefly stated, are as under:- On 13.9.90 at about 9.00 am, Umesh Kumar Sahu (PW-1- son of deceased Puniram) was informed by his brother-in-law Babulal (PW-13) that the appedants have committed murder of his father Puniram, and hjs dead body is lying in front of the house of appellant Shjvchsran. Babulaj (PW-13) also jnformed that the incident has been witnessed by Sahasram (PW-2) and Lokdas (PW-3). Umesh Kumar (PW-1) immediately rushed to the Ponce Station and lodged the First Infbrmation Report (Ex-P/l), Merg jntimation (Ex-P/26) was.also lodged. Investigating qfficer reached to the place of occyrrence, gave notjces (Ex-P/2 & P/3) to the panchas and prepared inquest (Ex-P/4) on the dead body of the deceased. Dead body of the deceased was sent for post mortem to Govt. Hospjtal, Sal^i, whwe the post mprtem ^xaminatiQn was conduct^ ^ Dr. S.S. Bajpai (PW-8), who prepared repprt yide Ex,P/23. He notteed multiple penetratlng wounds on different parts of the body of the deceased. On Internal examinatlon, injuries were foynd on trachea and lungs. Huge quanttty of bloocl was found in thoracjc cayity. The Autopsy surgeon opjned that the cause of deaith was shock and hemorrhage on account of above tnjuries and the death was homicjdal in nature. In further investigation, the appellants were taRen irrto custpdy and their memorandum statements under Seetion 27 of the Evidence Act, were recorded and various weapons, allegedly stainedwith blood, were seized at the instances ofthe appellante. Though the seized articles were sent for chemical examination to Forensic Setence Laboratory, Sagar, no report cpuld be fited. After completion of usual investjgation, charge sheet was fjted in the Court of Judteial Maglstrate, First Class, Sakti, who in turn commjtted the matter to the concemed session Court, fpom ^ ". Criminal Appeal No. 566 of 19^ where, it was received on transfer by the 3rd Acldltfe)nat Ses^on Judgf, Bilaspur. who conducted the trial, and convicted aid sentenced the appejlants as afore mentioned. 3. The case of the prosecution was solely based on ©yewitnesses account of Sahasram (PW-2) and Lokdas (PW-3). Both these wUnesses turned hostite before the Session Court. The leamed Sesston y^y, w-^ however, relying on the testimony of Sahasram (PW-2), convicted and sentenced the appellants as afbrementioned. 4. Mr. Bhaduri, learned Additjonal Advocate Generak, aippearina on behalfofthe State, argued thatthough Sahasram (PW-2)tum®dtiostite,1t comes in his evidence that he had seer? quarrel between the deGeased and the appellants !n front pfthehousf pf appellant Shlvcharan and when.after sometjme he rgtumed to the said ptace, he fbund fiat the dead body 0f"the deceased wa^ tying at fiat place. According to him, this was suffteient to connect the appellante with crime in question; therefore, the Session Juctge r has nghtly conyicted the appellants on the above evidence of Sahasram (PW-2), which v^ sypported by cirGumstences ofsetzure ofwe^ from the possessfon pfappellants on thejrdiscoyery staternents. 5. We have heard Mr. Bhaduri at length and haye atso perys|d the records of the session case. 6. We find from the judgment that the learned Si^ipn Judge has mainly relied on the evidence of Sahasram (PW-2). Sahasrani (PW-2) deposed that he saw from some distance that some talk was going on among deceased Pynitram and appellants Shivcharan and Ambika. When h^ exch&nges were going on, appellants Baldyram and Pooran alsp came -„....—^..,...^-. 4 Criminal Appeal No. 566 of 1995 there. They were unarmed. Aceording to hte evidence, thewafter he left the place of occurrence and went to the house of one Lakhsman ®idmet there with hfe son Govindram. After sometime, when he returned to the plece ©f occurrence, he saw that dead body of the deceased was lying in front ofthe house of Shivcharan and the appeSlants were entering Into t^ h©useof Shivcharan. At that time, appellant Shivcharan was hotding spear, appellant Ambika was hokling kftante and two other appeltants vwre holcUngJaf;^ Except the above, he did not depose any other facts relating tothe incldent; ^:. ::' He did not depose that, in fact.he sawthat the appeltantshael assauttecKhe deceased by the above weapons. Even he did not depwe that he saw the blood stajns on the weapons allegedly carried by the appellants at the time when he ^w them entering into the house of appellant Shh/charan. It is on this eyidence, he was cteo|<ared hostile and was allowed^o crpse-examlne by the Pybljc Prosecytor. The Public Prosecutor, in his cress-examinatton confrpnted hlm with his djary statement (Ex-P/19),but he oleariydenied t@ give sych statement befpre the police dyring the course ®f{nvestigartion. He denied the specific portion (A to A) of Ex-P/19, which r^ates to the facts that he had seenthat the appellants had attacked the deceased. Even after jengthy cross-ex^minatipn by the Pyblic Prosecutor, nothing msrterial ©ould be eticfted, pn which, It could be said that this witness, in fect, witnessed the incident of marpeet The other eyewitness cited by the prosecution, t.e. Lokdas (PW-3) completely tyned h^stile. He atep did not si^port ttw case of the prosecutipn. The learned Sesston Judge, relying pn the above portion deposed by Sahasram (PW-2), held thsrt Jt wa^ prwed that the appellants cpmmttted the miirder pfthe deceased b^r assaulting him by the above weapons on the fateM day. A Criminal Appeal No. 566 of 1995 7 The learned Session Judge has ateo relied on the eircumstances of discovery and seizure of weapons at the instances of the appellants. We find that though the above artteles were allegedly seteed from the possession of the appellants on the discoveries made throygh them and were sent for chemical examlnation to Forenste Sclence Laboratory, no ^w^wr. report could be filed by the prosecution. In the above facts and circumstances, merely on account of recovery of above wtjctes, wWch -t:--i:;-::..:.:A,w^-:'':-^^^^^^^^ bepossessed by any villager, nothing jncriminating could be attributed t@ the appellants. We are ofthe vjew thatthe leamed Session Jiidgehas erred !n law in Festingthe conviction of theappellants pnthe sol^ of hostile witness Sahasrim (PW-2), whp in fact did not suppCT'ttheoaseof tlieprosecutton. 8. For the foregoing reaspns, we are unable to susteinjhe eonvigtion @f the appellant^ on the above set of evtdence and the cqnyjctiwi and sentences awarded to theappellante desQrve to beset-aslde. i 9. In the resutt, the appeal is allqwed. The convlctjon ar^lserrtences awarded to the appeltants ynder Sectipn 302/34 IPC are s^-asfde. The appenants are acquitted pf the charges frarned against ^ei'n. jt is aAated that the appellants are on bail, Their bail bonds are cancelted and sureties stand djscharged. Blnl Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge