1 CF0000058258 or %\f •.-^,—":,; ." • ^ ,^ ,.<.. _ _; """""'.t^C" MABHIA i^BADBSH A2 JABALFUB •'•; IN m& HEQB GOUfiS Crtmii^l Appo&l Ho.^^__0f 199$ AliPPSLLANT BSSPOHDENT ^ani Ram^s/o Nohar ^hsi garthi aged aboufc 25 y^rs, resident of viliage San^par PolicQ Sfcation L&ilunga district B&igarh (M^ Tersus ^tafce ofM.P. through Disfcriet Magisfcrate Raigarh, UNDSR SSCIIOy _^74. 121_^L^.L£»C^ HI6H COURT OF CHHATTIS^RH AT BILASPUR Single Bench : Hon'bi®Mr. Justic®Pritinker Diwaker Cnmjnaj Appeal No. 242 of 1995 4PPELLANT Shani ftam, s/o Nohar Sahai Sarthi RESPONDENT ¥@rsus State of Madhya Pradesh (now Chhattisgarh) AAr. B.&. (5uru, counsei for the appeliant. AAr. Neeraj AAehta, PL for the State/respondent. CRIMINAL APPEAL UNbER SECTION 374 {21 OF THE CODE OF CRIMIN^L PROCEDURE JU&GMENT (17.01.2011) This Gppeoi is directed against the impugned Judgment ond order dated 2.2.1995 passed by 2 Additionai Sessions Judge/Rdgarh in. Sessions Trioi No, 250/1994 convicting the accused/appeiiant for the offence punishable under Section 304 part- II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years. 2. Case of the prosecution in brief is that on 20.9.1994 F.I.R. (Ex.P-1) was iodged by Samari Bai (PW-1) olieging that on 17.9.1994 the occused/appeliant, who js her son, has assaujted deceased Noharsai - husband of SGmari Bai and father of occused/appeliant. It is alieged that on the date of incident, the deceased had consumed iiquor and there was some altercation between him ond the appejlant and out of anger, the appellant gave a blow on the head of the deceased by a buming piece of wood. On the bosis of the report lodged by the compiainant, initidly the case under Section 307 IPC was registered against the accused/oppeljant but as on 21.9.94, the deceased succumbed to his injury, offence under Section 302 IPC was regjstered. After investigation, chaffan was filed on 28.10.1994 under Section 302 of the Indian Penai Code. 3. So as to hold to accused/appeltant guiity, prosecution has examined as many as 7 witnesses in support' of its case. Statement of the accused/appeilant was aiso recorded under Section 313 of the Code of Crimina! Procedure in which he denied the charges leveiled against him and pieaded his innocence ond false implication in the case. 4. After hearing the parl-ies the triot Courl- has though acquitted the accused/appejjant of the offence under Sectjon 302 IPC but has convicted him for the offence under Section 304 part II of the Indian Penal Codes. Hence this appeal. 5. Counsel for the appeiloint submits that even if the entire case of the prosecution is taken as it is, the appeljant cannot be convicted for any offence because olt the eye witnesses to the incident have turned hostile. He submits that merely on the basis of the statement of Dr. R.S. Upadhyaya, Assistant Surgeon (PW-4), accused/appellant cQnnot be convicted. 6. On the other hand supporting the impugned judgment it has been argued by the State counsei that conviction of the accused/appejjoint is in accordance with law and there is no infirmity in the same. 7. I have heard counsel for the parties and perused the materiai avaiiable on record inctuding judgment impugned. 8. Samari Bai (PW-1) - wife of the deceased and lodger of the F.I.R. hos not supported the prosecution case and has been declared hostile. She has stated in her evidence that when the deceo.se came to the house, he was in o drunken condition and had some injury on his head. She has categorically denied the ,'^u'*""*v<"1-^, /^^ "^, \ ^i^. .1 1 ^£S%| | f / ^s^^'^ D/- fact that it is the accused/appelJQnt who had assaulted him. Budhwaro Bai (PW-2)- daughter of the deceosed, has also not supported the prosecution case and has been declared hostile. Sushila Bai (PW-3) is the daughter-in-law of the deceased, has also not supported the prosecution case and has been declared hostiie. Dr. R.S. Upadhyaya (PW-4), who had medically examined deceased Nohar^iii and had given his report" Ex. P-4 found injury on the head of the deceased and the fracture of frontal bone was also there, he has aiso performed the post mort-em of the deceased on 22.9.1994 and his report is Ex. P-7. According to him, cause of death of the deceased due to head injury. G.P. Shrivas (PW-5) is the Investigating Officer and has supported the prosecution case. Sampat (PW-6) is a viilage Kotwar has ajso not supported the prosecution case and has been declared hostile. Dhajaram (PW-7) is a witness to the inquest (Ex.P-10) ond the seizure witness of Ex.P-12, has also not supported the prosecution case and has been decjared hostile. 9. If the entire evidence is considered, jt is apparent that none of the witnesses has deposed any thing against the accused/appeliant. Merely on the basis of evidence of br. R.S. Upadhyaya, it wiil not be safe for this Courl- to uphold the conviction of the accused/appellant under Section 304 part II of the Indian Penal Code. 10. To conciude, the appeal \s allowed. Impugned Judgment dated 2.2.1995 is hereby set aside. Appellant is acquitted of the charge leveiied against him. Since appellant is already on bail, his bail bonds stand discharged. „..„-„..-..„-.„.-. -.-..„^— ^^ pritinkerDiwaker Judge