::^\: CF0000057296 S%!»^^sgBsgK|p, w :M''SSSS3- a?H}$B^BeB;ci,:(i IB..IB -BI6H Ot MASHIA FBaiSSH AT 3-ABAICTR. .eRIMmJUb:i'tfPBA^::TO./ §^1 : ®?'1 •^ . '- :'&BSSm, 'E s- Bajesfa rancley son ixf SaBabM.laS r'aia^y, I'f'^j s^J 'aged''afeeat;: ^ye,ars, ( ® • yea.E's'^s' per ^w^^- ••• ), rasiasnfc oT ^.sP^SS^r ^•3.. SaBand» -babsl1 ^aiaa,Sa!attel»^i-st>rtefc aa.tpay. .?y':. • • :" . .-• .TBrsiis-, .. -/ . - :;. ' '1 . '.'' i- t.1ae,.Sbafee-efM.P.'-tiiaroagh.D.M.t'.fiatPay. QSEHBM£ iS,SB62ieN: .3^-01-y i: *^<NF * ^nrf fl»tf*flft^a»ff»^•Arf';._1<»dtta»tl*»urf—)frff XI-HC-22 3sr;;fTqT?p]-, tSTi'K-1'is, Riiniuy HItR'Ifaitllch ..c^Aw-.m/.v..'V^ 200 i^^, SIl^TSET fsFirasn^T gitrffiCTftcT ^Flf^pfrT WRff ff te^t'J^TFSTC ^.3T!^T3T!^!T DB: HON'BLE MR. L.C.BHADOO, & HON'BLE 2SR. D'UP Pj^OSAHE.B DBSHMUKH. JJ 21.6.2005 Ms. Deepali Paadey, cpunsel for fhe appeUaat, Mr: Ashish Shukla, G<|>vt. Advocate for the State. Oral. Accused/'appeUant I^ajesh Pandey has preferred this cilminal appeal uader Sectic^u 374(2) oftae Cr.P.C. being aggrieved by fhe judgment of convicjtion and sentence dated 31.07.1989 passed by leamed 1st Ac|ditional Sessions Judge, Raipur ru S.T.No.80/87 wheneby lcaijncd Additional Scssious Judgc after holding the accused/appeUEJnt guilt)r fcr commission ofmurder of Samaru Sidhar convicted Tiijm under Section 302 of Indiaa Penal Code and sentenced him to ijmdergo imprisonment for life, Briefly stated prosecu1|ion case is that on. 29.9.1986 at about 11.40 a.sa. Baklu s/o Jailal, who is the unclc ofdeccased Samaru, ;ave rhe mei^ iatrmatiod (Ex,P-18) at the PoUce Station Matiasamuad to fhe effect tttat his nephew namelv Samaru Sidhar, aged about 11 years, wop was workiag with Dwarka Daga, yesterday left the house at ajaout 7.00 a.sn. and thereafter, he had not retumcd to takc his inc^l aud sincc tlien his whcreabouts are aot known. Enquiries werej made from the vfllagers and even a search was made ,but he; coT^ld not be traced out. Today, we afasi made a search and Sukhranji, who is my son-in-Iaw, saw the dead body of Samaru. Iiiiuries w^re picsent oa the stoaiach of Saniaru and it/appears that injuri|es have been iaflicted by a knifc. ~~~~ -^ (Tt^^fett) XI-HC-22 STI^TSBT fa^an^r »nwgf?a' ' jsT^Traiwr, STTRFR, RiciKiy 3T1^T^W rgnra?"--"^ A^'""ffi; 200 f^s' l^. tllHWI fKSVfSS Si^TS^fTigT^rfsa ~zl Thereafiier, just after five ^raf?pfrT wRft'ff tet^ tf^CT: ^;3tRpT3T^?T nunuies ot tttis niei^ uitunaUon saia Baldau again gave a Pirst Itlfonnation Report (Ex.P-7) to tbe Police Station ui which hc inci!|tioaed that his ncphew Sainaru was workmg witfa Dwarkadas ipaga aad on 28.9.1986 at about 7,00 a.m. fae left the faoiise fc|r his workmg place but he had not retumed fo take his saes^, Uiere&re, a seaich was inade but Samaru could not be tra.c^. out. Today, aeoin. we niade a search aad a dead bodv was scenl bv Siikhram ia thc forcst area aad it was al^o seen that some iiyuries were present on the stomach & hands of Samaru which apjiears to be caused by a knife aad there was one cloth around fhe iieck of Sainaru. On enquu5r fixiin the viUagers, it was came to t^ie knowledge that at abut 9,30 a.in. Rajcsh Pandcy, who is khc prcscnt accuscd/appcnant, was carmng Samaru on his bi<j;ycle, ttus iact was seen by Jhadiram. Bishni Satnami informcd t^iat one lady namely Rajun Kiiinliarm, wbo is the resident of Pachetia, saw one boy ciying 'save-scwe', one bicycle was standtag neai^ inurdered. Oa recciviag tl^is rcport a Case No, 284/86 uiider Section 302 of the IPC w^as registered uader Ex. P-7 and the Investigatmg Officer took recovered at ttie iastance of the culvert aad Sainaru has been iip the iavest^ation. A krufe was fhe accused/appeUant from fhe canal, a site plan (Ex.P-8) was t^repai-ed by the .Patwari nainely Shri Laxminatb Yadu (PW-7) abo^it thc place of incidcut aad prescncc of Rajim Bai (PW-6) Iroin ^phere she saw the mcident. The Investigating OfScer took infto possession the bicycle from PW-2. The dead body was sent for postaiortem., Dr. K.Vinav Kyinai- (^iifs^) j j jjj || XI-HC-22 iiiwishirei •T=K'<<I<II|-I<<, s^raTR, <q?(Tgy sn^rq?^ ^.....^v\8^....^ ,„„ i^s' 3TR?T<BT (N^-W^T aWqigfttT an^TSRnwtrfRr 3> •*ra(ri41^ ^wcff^'fa-^ <R|^|< ^•siRrosti^T (PW-10) conducted postEuo^leiu and prepared fbe post inortein report Ex. P-11. After com.pldtion of the investigation charge sheet was filcd agauist the accus^ri/appcUant ia fhc Coiirt of Judicial Magistrate First Class, whol committed ffae case to the Court of leanied Sessions Judge, Rai^ur from where leamed lat Additional Sessions judge, Raipur Canjlp Gourt at Mahasam.und received the case. Lcanaed Additional argume^ts of Additional accused/appellaut aud after [Scssioiis Judge aftcr hcanng thc Public Prosecutor, counsel for the perusal of the record was pruna-facie of the opuiion that offence T^nder Section 302 ofthe l.P.C. is inade out, fherefore. he fi-amed tlle cbarge. The prosecution in order to provc the offcncc against fh^ as 14 witnesses. The which he sunply denied the accuscd/appcUaat cxaauiicd as many ,tatenient of accused/appellaat was rccorded imder Section 31$ of the Cr.P.C, by the trial court ia evidence ot prosecuuou witnesses ancl stated that he is innocent afad has been falselv MnpUcated aad the witaesscs havc stated agatn] After heanng the argumen| We have heard leamli |st hJTn as pcr thc wishcs of the policc, ts, of counsel for fhe parti.es, learaed Additional Sessions Judjge convicted aad sentenced Uie accused/appellaat iu fhe ni^cuaer uientioned aforesaid. ;d counsel for fhe accused/appellant and fcamed Oovt. Advocate 'Soi thc State Mr. Ashish Shukla. Leamed counsel fbr ^b.e accused/appeUaat argued fhat tfae convicti(m is primarily basep. oa Tlie evidence of eyewitaess namely Rajim Bai (PW-6) & Jhadir^.ui (PW-5), who saw the deceased with XI-HC-22 an^TTSRT ts^Nisn^FT a"]-(l^'y[^ j r "iii'iiid'4, ®Tj'i<'i'id,Rciiyy t(T> li sniicn an^T'^rai _........&^gA.. an^TSRTRR^r -\ bicvcle before the occurren^ <<)l<llcl*fl-! t||t|clt'^'f31^t<r'lt<l< ^ari^iTsnCTT the accused/appelidnt whife he was carr^^ing fhe deceased on 'e. She argued that PW-6 has clearly stated in facr cvidciice fhat ^hc was not ablc to idcutifv the accuscd and the deceased, Simllarlvjthe evidence of PW-5 is also unreliable and conviction cannot be witness. She further ai^ued based 011 the evidence of the said that fhe krufe was recoveisd from. the open place and nioreover, tljiere is no serologist's report about the blood found on thc kmfe, ^s such accuscd/appellant caniiot be cormected wiffa ftie murdei) of deceased Samaru merely on the basis of recoveiy of knife. On fhe other haud, le^med Goveriunent Advocate supported the iudainent of fhe trial Coulrt, Havtng hcard lcaaic4 counscl for the partics, wc havc perused tlie judgmcnt of ttial court and evidence avaUable on necord. As far as the evidenc^ of PW-6 Rajim. Bai is cooceraed, tn examination-in-chief she haq 9 to 10 a.in. whcn she was coUectiug woods she saw assaultmg a boy with a knife] who was assaulting the boyj sanie dav she was sttmjnonl steted fhat two vears before at about going to thc f9rcst for thc purposc of that ia NawadUi one person was biit she could not identtfy the person She has further stated that on the ;d by the poUce at Nawadih and on fceiag askcd by the policc st^p identificd the pcrsoa who assaulted ffae boy, however, she was 4ol kno\viag the name of that person becausc fhat person was re^ident of some ofher vfllage, In the cross-exauunation she has 4ategoricaUy stated fhat bushes were _c'fl^faal. Xi-HC-22 j5f ^|^|lcl<4, diTfly'l^, firtiyy Bm(rfra>*ii<*i an^TT'T?^ „-.....g^.l^.....V^ 200 3?I^TSBT RFiragn^r g;iriq;of?(r 3TI^?T ST3TW uRd ^pifepfpr TncTr'^'teA :cf3TF^ ^isif^irsn^T standing at fhe place wher^ fhe person was assaultm.g fbe boy. She has further stated'fhat idcntifr the pci^on who was ^t the place of incident she could not ^ssaulting thc boy, for thc reason that mcideat took place beiimd ti^e bushes, She atso could not identrfy fhe boy to whom. the persoal was assaultiag. She does aot kaow fhe accused/appeUant and ^ven she does not know the nauie of that person because be is dte resident of souie other vfflage. On that day, tuc police caUed in^ ia fhc Nawadih school and iafonncd ttiat tbevChild who was murijiercd was of the viU^e Nawadih aad tliercafter, accused/appeUaujt was shown to her by poUcis and police infonaed her fhat he ^s fh.e person. who had niurdered the boy that is wby she is ideatilfving the accused/apoeUan.t, She has further sated that before that dav she had not secii the accused/appeBaat, had ftie ^ccused/appeflant was not shown to her by the police she could a|ot have identiiied him today. In view of this evidence fhe accuset^/appellaat cannot be heM guiity for coiniiutting the niurder of d^ceased Saniaru, Rajiom. Bai (PW-6) has catcgoricaUy stated fhat accused/appeUaat and even accused when fhe cruae was being coinnutted behiad the ^ushes. Furiher she has stated tfaat the accused/appellaat was shc did not know the bov and fhe she could not see the boy and tfae beiag committed, as the same was fehown to her bv fhe poHce ia the Nawadih School. In fhe circTiiilstaiices, thc cvidcncc offhis witness is whoUy unreUable and c<i>nviction cannot be based oa tfae evidence of fhis witoess. Apajrt froiu fhat, wituessiug the iacident by this-wltaess is ruled out &oin the fact that site plan (Ex. P-8) XI-HC-22 3ST ^iraRPT, SrftWS, Rtdlfly 3TI^T1^raT t|TH<:'n aiHi<o ^ 290 fg:p% 3II^T«BT feirasn^r aOT^gf^T sniRTSRnWHf^a -^ %T!|fepft:T TTOff ff te^t :(f3Tf?T( ^Stf^ti'W^T prepared by fhe Panvari in v^hich the presence of this lady has been shown. at Sr. No.3, wherfcas fhe place ofoccurrence has been shown at Sr. No.l aad the distaace bctwcen ihe two has been shown to be 110 ft. Even as ger the evidence of Patwari- Tilakram Yadu (FW-7), who piepared tl^e site plaa, in which he has stated fhat the place fi'om. where fhe fiead body was recovered fiiere was a foi-est of bushes ui around 10 acres and the forest was so dense fh.erefore, it was uot possible t(? sec beyoud 8 to 10 feet, whereas ia tlie map yrepared by Patwar^ (Ex.P-8) the distaace between tlie piace from where the lady sa^d to have witnessed the crime and place of iiicident has been shdwn 110 ft, therefore, on this ground also evidence of PW-6 Rajim pai is of no help to fhe prosecution and the conviction cannot Ijc rcst on fhe basis of fhe above evidence. Now comiag to the quest|ioa of last seen of the deceased with ihe accused/appeUan.t. To th^s eifect, PW-5 Jhadiram has been examined as a witaess bv th^ prosecution, he has stated ia his cvidence fhat dcceased SamEJru was ka.own to Inm, two years betbre ffae date of his evidenc^ at about 9 to 10 a.m, he sawi was cai^ing Samaru. on a bic^cie towards fhe forest. He saw tfaat Samaru was sitting ia front of] when he was workmg m fbe caaal that the accused/appellaat Rajesh fhe accused/appeUant on tlie cycle and on secing thc acc^ised/appeBaat he wished fhc accused/appellant. In ttie cijoss-exainmation this witaess has stated th^t when he was goin]g towards the caaal Buju was not along with Tlim and he denied ^he poUce stateinent (DW-2) . He has ^IJ"Pt) s- XI-HC-22 sn^TsiiT fiFiwsn^rr a?riq;gf5cT 3'S? ^TqT?!?, <SiTTl<4'l<8, RclKiy an^Tq^w .^^...^.\.\.^.....^ 200 •sbl'illri^-' t]|t|cti'^'f;g1^<.Rl*<l< ^3lf^lT3n^?T denied the poUce stateiuent fhal he saw that accused was goiag towards Phoolwari and statbd that Phoolwari is on the eastem sidc, whcrcas accuscd/ app Pacheda Gram side which :Uant was taking thc dcccascd on ! is on the souttieEa side, he was summoned at about 12| aooa on fhe day when the accused/appellant was car^yiug Samaru on bicycle towards Pacheda which falls on fhe s<t>uthem side. Therefore, there is lot of contradiction bctwccn the cburts evidencc and statcincnt inadc toetbre ttie poUce. Apart Sit>m that, ffais fact also makes ttie evidence of fhis persou doub^fiil that as per his evidence before the Court he had not disctos^d to anyone rcgardiag seeing the accused/appeUant carrying ^ainaru towards forest area theii how ftic policc canie to kaow aboi^t this pcrson that hc saw thc accuscd earrym.g Samaru. As per fti^ law laid down by fhe Hon'ble Apex Coiut in the matter of Bodli^((j ® Bodha aad others Vs State of JamtBU & Kashiair repone4 ui (2002) 8 SCC 4S in. which the Hon'ble Apex Court has held ttiat 'last seen iheory comes into play where the iime-gap betweenitf.e poini ofiime^when ike accused and the dececised were seen !as found dead is also small ccn^. possibility of any person other than ihe accused being ihe ctulhor\ has further been held that i Rajasthin reported in (2002^ alive cmd when the decsased was of ihe crime becomes ifnpossible. It ( ivould be hazardaus to come to a conchision ofguilt in cases wffere there is no other posiiive evidence to condude that the accuseS. and the deceased zoere last seen together'. ..Similarly, in tlie m^tter ofSubhash Chand Vs. State of 1 SCC 702 the Hon'ble Apex Court (Tt^^f^r) XI-HC-22 3^ -i|141Cl'i1, ISlliy'KS, (qcll^y 3T(^?Tq^7 *<IKdl shNi* •••••••••Q'^\\'ff\^ 200 3TR?T%T fd.-li* 3TI^T sn*ll»figf5?T <+i'liId41J. ^ffl^*^'' ter^t <^i^<.i< ^3l1^T3IR?T has speci.Bcally held fbat liffsi seeniogeiher intist be near dbout the date and iime offhe inddeny. !n fhc light of above] judgiaents, if wc scc thc cvideace of Jhadiram (PW-5) zvhich i^ not a clmclaiag evidence aad his evidence does not iaspirc fhe confidence of the Court, for fhe reason t&at Uie evulence giyen. Betoie Uie court is ui contracticUon of fhe stateineat niade bv ftim befoic the police aad fhe fact fhat how fhis witacss caiae to t}ie noticc of fhc policc is also not clear irom the evideuce. It is alsti settled law fhat ffae last seen theorv is \ 1 a weak type of evidence acfyd conclusion of giult ou the toasis of such last seen evjdeiice shduM not be based without corroboration bv other inaterial evidence o6kin.K to the facts and circuiastences of fhc casc. Apart fi-om tius factj if we look into the mcrg intimation report (Ex.P-18) given at llj (Ex.P-7) which was given |40 a.m. on 29.9.1986 and also the FIR just after five raiautes of Ex.P-18 in wfaich it has beeii lueation^d that on enquin- from. tlie villagers it was iitfonncd that at about canying Samaru on bicycle fact has not been mention^d iu Bx.P-18 which was given just 5 ininutes befoic the report 9.30 a.in. accuscd Rajcsh Pandcy was aad it was seen by Jhadirajn, but this :.P-7) and as per evidence ofJhadirani that he had not disclosed f^e fact of seeing accused/appellant aad dcccascd togcthcr to anyonq thcn how Baldau camc to know about this fact that Jhadiram ssjw fhe accused/appeBaat canyiag the deceased. Smularly, a mention has been made ia Ex.P-7 about fhe iafonnat&n given by Bish^u Satnanu that Rajim Bai heard fhe ~——i^^sl^_ XI-HC-22 3tK?T5R[ I'N^sn^T sptiNi^f??f •ssf ^rraicpr, STTRTO?, fiwitiy 3ii^l q?rgr .......^<.\.\.^.-..^ 200 R'b.A ^ HWMI a>*l!<») 3I1^?T STdRK flfs? -c? ?il^^-l(l-< t<IKjl'^'fa'<?l <Rlt<K ^.3?rf^tT3ni?T cries of a boy uttering 'sai^-save', whereas, this fact also does not find place in the report Bxj before the rcport (Ex,P-7), prosecutioa case d.oubtfiil. | Now comiag to the instance of the accused/j P-18 which was givea just five nunutes Thercfore, fhis fact also inakes thc question of recoveiy of kntfe at the lappeUaat. In tbe first instance, fhe lecovery has been inade fi?oin aa open place, even ofherwise the accuscd/appcUant caunot] be connectcd with thc inurdcr of Samarti on the basis of dt(s recoveiy, tbr ttie reason that there is ao serotogist's report regajxlmg tfae humaa blood found on the kuife or that the blood gTa|up found on the knife taUies wifh the blood group of tbe deceasefl. Therefore, io. the absence of such a rcport it is uiisafe to coitnect thc accuscd/appcliant with thc murder ofdeceased merely <|)n the basis of ttie recovery. In the last, leamed G^vemment Advocate Mr. Shukla argued that iujuries were fouiid o|a the body of the accused/appeBant, tiierefore, fhis fact coiuid' inurder of Sainaru, An ex]ji given by fhe accused/appcpaat that he recelved these injuries m au accident, but evea ofh^rwise there is no evidence ou record which coniiects fhe accused then bow luerelv on 'ts fhe accused/appeliaat with fhe 'laaation about thc iajurics has bccn 1/appellant with the murder of Saxaaru Ithe basis of these inn.uries the accuscd/appcUaat can bc cjonnected with thc crune. Mr. Shukla 'furfher argued that PW-2- Ipm^eshdhar Sharma has stated iu tus evidcnce fhat Bishru had t^ken fhe bicycle fi'om him iu. the name of the ac6used/appel]£uit. in the cross-exauiuiation this intoess -^a^?^) \y XI-HC-22 Roshan/' NWMI Stlfiqi 3^ •-t<i<iid<<, on'K-1'Ks, Rdiyy Sll^lT?!^? ^-•^V^--^ 200 "'fe^s' Sfl^W! f^wsf^f ^i-^^f^fl ^rafepfrriTORffffto^ (RRZR ^sil^iTsn^r which is said to be takcn the scene of occurrence. has stated fhat ihe accus^d used to take cvcle dailv froin him but there is no evidence on. r^coid which goes to show that fhe cvcle by fhc accused/appeUaatwasfouiid at As sucli tu the absence of sucfa au evidence we failed to und^rstand that how the taking of bicycle of accused/appeUant froiti this witness coiuiects the accused/appellant with thje inurder of Samani, For the forcgoing t-easons. we aic unable to sustain the findiag of the trial court, s ftie saine is not based on aay legal aad clinchmg evidence. There^bre, we have to reverse the tindiug of the tnalcourt. In tbe result, the atipeal succeeds and fhe saDle is aUowed. Thc convictioa and sei!te$ce awarded to accuscd/appellaiit Rajcsh Paadey are hereby set a^ide and he is acqultted of the charge of Section 302 of fhe Indiari Penal Code. The bail bonds executed in pursuance oftbe Courts ^rder dated 22.9.1989 stand cancelied. Certified copv as peir rules. ——— pe| Sd/- L.C.BHADOO Judge Sd/- Dilip Raosaheb Deshmukh Judge $^?f^) /\l.;' \K.7^^ YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 15:15:14 +0530