E‘EEGH COURT BF CHHATTISGARH z EILASPUR I u I i l ! ivis on Bench: Hon’ble Shri Dhirendra Mishra £5 . a Hon’ble Shri Manindra Mohan Shrivastava$ JJ. Criminal Appeai No.1 134 of 1991 APPE LANT: I K€ndwa, S/o Jhakdi, aged. about n‘Jail' Versus 4O years, Rio Jobi, RS. Kapu District Raigarh :‘V‘ ESPONDENT: State of Macihya Pradesh, through D.M. Raigarh izweai uis 3'74 i2} cf the Code of Criimiual'Proceiime Pteaent: Shri S.R.J. Jaiswal, counsel for the app611ant Shri Ravindra Agrawal, Panel Lawyer for the Statei raspondent' ORAL—JUDGMENT (Dalivsred on 18th Janualy, 20 10} The‘ followmg judgment of the Court was deliveraé by Dhiren‘o‘ra Mishra, J. . This cfiminal appsal is diroctod agamst the judgmsnf of convictioxl 2am ordor of sentonce dated 10th Octobor, 1991 passod ii? S.T. No.120/ 1991, whoreby the loamoci Swsions Judge, Raigarh, after holding the appellant guilty of causing homicidal death of tieceased Sukhdev, convicteci him‘ under gSection 802 of the IPC. and sentenced him To unéergo Efe ImprisoEnment \ ‘ \ \ v 2, Case off the prosecution, in brief, a3. projecteti 3711 para—3 of the. impugned § \ judgment are that — on 28.5. 1991, wtfe argd sister of deceaseé-fEukhdev had ‘ gone to collect Dori (Mahua flowers). Whea they returned; they found ‘w-x D R ‘ dacaased-Stzkhdsv lying in the room dsad. H6 had sustained i11ju1i€s ovsr his aacig Purushottam, uncle of itm deceasad was called and he lodgmi Q16 mpmt m Ema Palics Staten ‘Kapu Vida Ex.P»1. On his infomation, merg E intimatigon was also registemd mgarding death of Sukhdsv. After performing inquest‘ovar dead body of doceased, tho dead body was sent for autopsy to Community Health Center, Patthalgaon, Where Dr.. GK. Verma (P.W,—7} conduc ed poetmortem and gave his report vide EXP—12. OJ11 investigation, it was revealed that appellant—Kendwa had some land relaeeei dispute with the deceased The deceased had not invited the accused persons on the occasion of marriage of his son and because of the above animosity, the‘appellant with the connivance of other two accused ‘ persons namely Pavan Sai and Lal Sai committed murder of the deceased— Sukhdev. On the basis of discloser statement of appellant vide EXP—5, *blood stained weapon of offence- axe was taken into possession from his house vide seizure memo of EXP—6. Blood stained lungi was also taken into l ' possession Vide EXP—7. - 3 After cdmpleting usual investigation, charge sheet under Section 302 read l with Section 34 of The {PC against the present appellant and other two accused persons— PaWan Sai and Lal Sai was filed in the Court of Judicial Magistrate First Class, Dharamjaigarh, who in tum committed the case to U‘ the Court of Sessions, Raigarh for trial. All accused persons abjured their guilt. l l ‘ 4. The prdsecution in order to establish charges against the accused persons examined 12 witnesses in all. Thereafter, statements of the accused l t 2" S l. T persons were recorded under Section 313 of Cr.P.C. All of the accused persons denied the circumstanCes appearing against them in the prosecution case and pleaded innocence and false implication. \ l i S. The learned trial Court after healing the counsel for the reapective parties conv1c’ied and sen enced the appe ant as menhoned 1n para—1 of the i Juaigment, Hewever, the other two accused perSons namely Paxyan Sal and Lal 88.1 were acquitted of the charges framed against them by extenciing them b‘eneiit of doubt. Homicidal death of Sukhdev 1's not in dispute, Even othexwise from the evidence of Dr. GK. Verma (PAR/Z7}, who found following exteinal ahd internafl injun'es over the person of the deceased and opined the cause of death due to shock and hemorrhage due to neck Emmy hom1c1dal m nature vhomwldal death of the deceased $ukhdev is estabhshedv Externai Injuries- One mc1sed wound on left sxde of neck extendmg flom top towards bottom of s12e 5 X ‘/2 1/2 mch Blood clots were present on the wound Imunes were caused by sharp edged weapon Blood was also 002mg from the mjurv Underlyma muscles and blood vessel wene cut Internal Injuries-Underlymg muscles and blood vessels were cut. Learned counsel for the appellant submts that there ls no eyeWltness to the mmdent The trial Court has conv1cted the appellant solely on the basm of alleged Iecovely of weapon of odence on his discloser statement vide EXP—6 and further on the ground that the appellant had died a complaint case 1n the Couxt of Jud1c1al Mag1strate Flrst Class Ralgarh agamst the decedsed and ll othe1 persons v1de complamt of EX P-15 The alleged recovelyi of axe at the instance of the appellant is irrelevant as the prosecuition has failed to pmve that it was stained with blood that too human Polood of the origin of blood group of the deceased, So far as the motive . attn'buted I to’the appellant for comm1ss1on . . of the aforesald . crime . 1n . questimlz is concemed, the same is also farfetched as the appellant had l . 1:)u lodged eIE complaint case against the deceased as also l l other persons. The ' r said coxinplaint was filed in connection with some other incident occurred l i I 1 t , ‘ 7 0n 24 8 1987 whemas the present crime was commued m the Interveumg 111ght of 27 28m May 1991 Le. almost 3 and ’2’2 year after the first incidem‘ 8. On the omer hand lemed counsel for the State/ lespondent has suppomed ‘the nnpugned Judgment 9. We hav‘e heard learned counsel for the parties. We have perused the record as also the impugned judgment. 10. The trial Court has convicted the aFpeHaht solely on the ground that the appellaht ‘ had - motive for comm’iseion of the crime aS he had earlier filed a complaint case against the deceased arid 11 other persons for offences pmnshable under Secuons 147 447 427 and 506 of the IPC Admlttedly the aforesald complaxnt was flied 1n relation to some ohence allegedly commltted by the deceased and 11 other persons on 24.8.1987, whereas, the present incident took place in the month of Mav, 1991 and thus in our oplmon the mal Court was not Jusufled 1n reachmg to the conclumon that the appellant had a motlve for comm1sslon of the aforesaud enme r l . So far as recovery of weapon of oll‘ence 1 e axe from the house of appeLant » on h1s dlscloser statement 1s concerned the alleged recovery ls also of no t L _ consequence as the prosecunon has falled to prove that the axe selzed at othe mstance of the appellant was stained w1th blood and that too of the fblood group of the deceased. There is virtually no circumstantial evidence fto bring :home the charges against the appellant that he committed the émurder of deceased—Sukhdev and the trial Court was Wholly unjustified J1 iconv’icting and sentencing the appellant under Section 302 of the IPC on the basis éofthe circumstance relied tipon by him. . In the result, appeal preferred by appellant—Kendwa is allowed. Conviction and sentence imposed upon the appellant under Section 302 of the IPC is x I ' 8‘ ’ 5) set asidé and he is acquitted of the said Charge. The appeuant' Kenriwa be relefased fOIThwith‘umess' required to be detained in any other case. , a ’ ‘ Sd/— 7 Sd/' i mmENDRA MIsHRA ' budge i Manindra Mohan Shrivastava ,Jilqge