^' HIGH COURT OF CHHAmSGARH, BILASPUR SIN6LE BENCH: HON'BLE SHRI R. L. JHABWAR, J. Criminal Apoeal Bo. 341/19^2 Narayan and others Versus RESPONDENTS State ofM.P. (Now C.G. ^i. JUDGMENT POST ON ^o JULY, 2009 > Sd/- R.L. Jhanwar Judge Ea. 8 't:^ ti <'i" '3^1 HIGH COURTOF CHHATTISQARH. BILASPUR SINGLE BBNCH : HON'BLE SHRI R&JBSHWAR LAL JHANWAR.J. (InjaU) Cr. App. No.341/1992 1. Narayan son of Shri Kartik aged about 23 years, resident ofvillage Birbira, Thana- Araug, district Raipur. 2. Rekhu son of Shri Puaoo Nai aged about 23 years, resident of vQlage Khura Thaua - Araag district Raipur 3. Panchu son of Shri Bharosha aged about 32 years, resident of Bag Bahra, at present Birbira, Thana- Aarang, district Raipur- State of Madhya Pradesh (Now State of Chhattisgarh.) Crimiaal Appeal uader Sectioa 374 (2) of th^Cpde of CTiminal Procedure at.it 7 Appearaace: Shri Arun Kochar, counsel for fhe appeUaats. Shri Pradeep Siagh, Panel Lawyer for fhe State. JUDGMENT (DeUvered ongo.07.2009) 1. This Criminal Appeal is directed against the judgment of couviction and order of sentence dated 10.3.1992, delivered ia S.T.No. 1/1988, wbereby, tbe leamed 2nd Additional Sessions Judge, Raipur has convicted the appeUants under Section 307 read with Section 34 offhe IPC aad sentenced each ofthem to undergo R.I. for 5 years and to pay a fiue of Rs.100/-, iu default of payment of fine to furfher uadergo R.I. for one nionfh. iiti 2. The case ofthe prosecution, ia brief, is fhat on 16.8.1987. tbe appellant No,2 Reldiu lodged FIR stating ftiereiii tliat on 15.8.1987 froin fhe evening of 5:00 pin. he along wifh Chintu were on duty in ftie vfllage Birbira at Chaiu No. 2371 aad fhey were sitttng ia Kundia at about 12:00 in fhe night, at that tune, one niau cauie fhere and asked fheiu a glass for drmkiag water. He offered bidi to theni, however, fhey did not accept, then suddeiily he assaulted botti of tbean with hauds & fists, fhereafter, one n:iore person caine there aud he also assaulted bofh of theia with haads & fists. However Rekhu escaped from. ftiere and luet ^vith Hari & Man.iram.. Then, fhey altogefher reached to fhe place of occurrence and saw fhat Chiatu was lying fhere who was unconscious. The inatter was reported aad fhe FIR was lodged by the police. Chintu was sent for uiedical examiuation. Dr. Sharad Chaadra Shrivastava (P.W.- 7) examiued injured Ctiinturam aud fouad several simple iajuries on his body. 3. After 25 days of this incident Chandradip Singh (PW.10), Naiab Tehsildar, recorded dyiag declatation of Chintu, Ex, D- 3, aud Investigating Of&cer took statement of Chintu, ia which Chiatu made allegation against the appellants aud alleged fhat he was assaulted by the appeUauts ia fhe nj^ht of 15.8.1987. PoUce iuvestigated the m.atter ia fhe Ught of aUegation made by Chiatu (P.W.3) and after coinpleting fhe iuvestigation charge sheet was ffled agaiast aU the appellaats imder Section 307 read witii Section 34 of the IPC in fhe Court of Judicial Magistrate First Class, Raipur, who iu tum, comiuitted the case to flie Court of Sessions, Raipur. The leamed Sessions Judge luade over the case to fhe leamed II Additional Sessions Judge, Raipur for trial. 4. Charge under Section 307 read \vifh Sectiou 34 ofthe IPCwas fi-acaed aad read over aad explained to the appellaat, who 'A ? ^e?--:'-:;SS;^ n'wk. ~% v e .^1'' ^ i;i.;. ''?*>;:'".;(1' •^•B. ;:^,.^fg-"' abjured fhe guUt aad pleaded that they have been falsely iuiplicated iu the case. AppeUaat No. l & 3 took a plea ofalibi. 5. The leamed II Additional Sessions Judge, after evaluating tfae evidence available on record and heariag the couasel for respective parties and relyiug upon the sole testunony of Chiatu convicted fhe appellants aad sentenced them uader Section 307 read witti Sectiou 34 of fhe IPC, as above. 6. I have heard leamed counsel for both fhe pardes and have pemsed fhe record ofthe S.T. No.l/ 1988. 7. Dr. Sharad Chaadra Shrivastava (P.W.-7) examiued mjiired Chiuturam and found foUowiag injuries on his body ;- i. lacerated wound on fhe right side of cheek, size 2 x 1 x 0.5 cm. ii. SuiaU. wound on forehand size - 0.5 x 0.2 x 0.2 cm iii, Lacerated wouad on right side ofjaw size- 6x2x1 cni. iv. Stabbed wound on the right side ofchest size 1 x 1 x 1 cm. v. Lacerated wound on the left side of chest size -2x1 x 0.4 cni. vi. Lacerated wound on fhe r^ht knee size 2 x 0.5 x0.2 cin. vii. Small wound on fhe left elbow, size 1 x 0.5 x 2 cm. vui. Found ear lacerated iato two parts. He opiued all fhe injuries simple iu nature. He further opined fhat ftie aU above iiijures could be caused by lathi, His report is Ex. P-4 A. 8. From. his evidence, it is clear that Chiatu was neiftier uaconscious nor he was referred to aay other hospital for furtfaer treatnient It is evident fhat after 25 days of ttie iucident, first timie, Chintu deposed to poUce fhat fhe appeUauts assaulted him. Explauation for delay iu lodgtag FIR ^ -7 te B. .^ ^A.;. K< ^a hl ""'S i3 offered by ttim was that he was unconscious for fhat period. The prosecution did not adduce aay eiddence to support fhat after the iacident Chiatu was adinitted to any hospital or referred to aay hospital in unconscious condition. In absence of aay substantial niedical evidence to support unconsciousuess, the stateiaent of Chintu becomes completely uiu-eliable. 9. Appellaats ui defence produced 6 witaesses. According to Dr. Rajendra Jam (D.W-1) Narayaa came to Tiim for treataueut on 11.8.1987, Ex. D-6. Parshuram (D.W.2) also deposed fhat on fhe date of incident fhe doctor came to see Narayan, as he was sufferiiig firoin soine disease. The doctor stated ftiat Narayan. was not able to move fcely. Dr. AnU Nayak (D.W.3) stated that on 15.8.1987 he went to see Narayan, as he was suffermg fi-om dehydration, he was not ia a position to move fixely. Nirmal Kumar (D.W.-4) stated that Panchu was on duly on 15th August 1987 vrith him and in ttie whole night they were on duty. He also deposed that at about 3-4 aai, Hridayaram, timekeeper caUed us aud said that soinebody has assaulted Chiatu. Hridayram (D.W.5) also supported Tiim and deposed that Panchu was on duty on 15th August 1987. Hari & Shaukar came aad told tiiat soiuebody has assaulted Chiutu. 10. In fhis way, it is evident fhat Narayaa was ffi on fhe date of iacident and Panchu was on duty iu fhe whole n^ht ou fhe same date with Hridayram & Nirmal Kumar. Accorduig to Chuitu, Rekhu was also on duty with him. Chiutu has not deposed that there was aaimosity aiuongst Rekhu, Narayaa and him. Thus, as to how fhey would assault Chintu. The defence taken by the appeUants does not appear to be false or concocted, as fhe evidence of Chiatu sufFers fix>in serious infirmity which caruiot be relicd on; even he has given the E.-, BBB BiI B;l Sinha statement for falsely unpltcating Panchu because there was an iUicit relationship between his wiTe aad Pauchu. 11. For fhe foregouig reasons, I aai of the opiaion fhat the leamed Special Court has coinmitted error ia beUeviag the evidence of Chin.tu (P.W.3) aad thereby convicting fhe appeUants. 12. In the result, fhe appeal succeeds. Conviction for offence uuder Sections 307 read with Section 34 of fhe IPC recorded by fhe trial Court aud seatenced passed by the trial Court for coininittuig the said offence arc set aside. The appellaats are acquitted of fhe charge under Section 307 read with Section 34 of the IPC. They be set at Uberty, forthwifh., if not requifed in aay other case. - ~~-- Sd/- R.L. Jhanwar Judge