HIGH COURT OF CHHATT!SGARH_ATB1LASPUR Coram : Hon'bleShri DiliDRaosahebDeshmukhand Hon'ble Shri R. L. Jhanwar, JJ. Cr. Appeal No.1175of1992 Appellant State of M.P. (now State of Chhattisgarh) versus K. € Respondents Ashok Kumar and others JUDGMENT FOR CONSIDERATION Sd/- Dilip Raosaheb Deshmukh ] Judge A. Hon'bie Shri Rajeshwar Lal Jhanwar, J-: "§JJr^z Sd/- R.L. Jhanwar Judge >-\ h Post for pronouncement of Judgment ^> -06-2009 Sd/- JUDGE ^-06-2009 ha ^ 1'% ^ HIGH COURTOF CHHATTISGARH AT BILASPUR Coram : Hon'ble Shri Dilip Raosaheb Deshmukh Hon'bleShri R. L. Jhanwar, JJ. Appellant Respondents 1. 2. 3. Cr.AppealNo.1175/1992 State ofMadhya Pradesh (now State of Chhattisgarh) Versus Ashok Kumar S/o Kapil Prasad Kurmi, aged 19 years, R/o Village Tamanpura, P.S.: Baniyapara, District-Chapra (State ofBihar) presently residing at - Station Maroda, New Market, Thana-Newai Md. Alam @ Aslam S/o Tahir Khan, aged 22 years, R/o Station Maroda, New Market, Thana- Newai Kusum Devi @ Usha Devi, W/o Radheshyam Gupta, aged 38 years R/o New Market, Station Maroda, Thana- Newai Present: Shri Pravin Das, Panel Lawyer for the State/appellant. Shri M. D. Dhote, counsel for the respondents. JUDGMENT (Delivered on this VJA'^ of June, 2009) ^ The following Judgment of the Court was delivered by Dilip Raosaheb Deshmukh, J. 1 1, The State has preferred this appealunder Section 378 (1) of the Code of Criminal Procedure against the acquittal of respondents from the charge under Section 302 read with Section 34 ofthelPC. 2. Shri Pravin Das, learned Panel Lawyer for the State/appellant submitted at the very/outeet that in this appeal he would not assail the acquittal of respondent No.2 Md. Alam and respondent No.3 Kusum Devi of the charge under Section 302 read with Section 34 of the IPC and J eqi peuinboe 96pnp suoisseg |euo^ppv peujeei eqi ^i^uenbesuoo •|,' -ON luepuodsej 941 ^o \\\nG 041 qsiiqe^se AieAisnpuoo iou pip uees ISB| ^o eouQpiAa 8i|i ^eqi pieq OS|B 41 -ALiiJOMisnjiun (z'M'd) L|BUIS ejpuejns pue (£-"M"d) L|6uis LISOIUBS '((.-'M'd) eiiuy 10 AuoLUiisei Q\J[} puno^ eouepiAB p uoi^epejdde uo Bjna '96pnp suoisseg leuoiiippv II peujeei eqi •g •eouejep 941 Aq p9| SBM 90U9plA9 ON 'S9SS9UIIM 9|, SB AueiAJ 86 peuiujBxe uonnoesojd •90U900UUI p9pee|d pue }\m6 941 pejnfqe I.-ON i.uepuodsej 941 •g •oouejjnooo jo eiep eqi uo |9iOH ucMed JBQU |,'ON luopuodsej CuiAueduuoooe peseeoep 9t|i uses peq eq ye{\} psi^sei (t^l.-'AA'd) LUBJ>|!A "uoiinoosojd Q{\} Aq peonpojd iou SBM isi6o|ojes Q^} io yodsj sq], se seioiye 9Aoqe 9t|iuo peAojd eq iou p|noo poo|q ueiunq p eouesejd '6"d'X3 1? 9'd'X3 epiA (,-ON luepuodsej eqi LUOJJ pejeAooej os|e 9J9M seqioio peuieis pooiq pue S8AO|6 jo jied v "9"d "xg QpiA uuiq 0104 peziss SBM QJ.IU)! peuieis pooiq 9L|i <|,'ON luepuodsej eqi j.o 9'd'x3 'ujnpuejouueuj eqi UQ 'uuiq peqqeis peq ^oqsv ve^ (Z-'M'd) 46uis ejpuejns pue (s--M'd) -MBuis L|SOIUBS '(l-'M'd) BINV ppi p9se909p QL|I -Liiesp siq pesneo pue Q^IU^ e Aq L|6uis deiejd euey pe^inesse Aipsieedsj jeujn>| >|oqsv I-'ON luepuodsej l.SSI.'Z'Ol. jo iq6iu eqi ui ieqi si yoqs ui ^iois uoiinoesojd "^ " l'661-Z'O^ uo spunoM qe^s 01 enp qieep lepioiuuoq e peip Li6uis deiejj euey leqi aindsip ui iou si 11 lesdde siqi u| •g •jBLunx ^oqsv l.'o^ luepuodsej eqi ^o leuinboe eqi isuie6e A|UO p9n6je p|noM ^ ^- —^6 respondents of the charge under Section 302 read with Section 34 of the IPC. 7. We have heard Shri Pravin Das, learned Panel Lawyer for the State and Shri M.D. Dhote, learned counsel for the respondents. We have also perusedthe record. 8. So far as the testimony of Anita (P.W.1) is concerned, she admitted ^ that the deceased had no quarrel or previous animosity with the 'T ' ^.. . ; . , . : • respondent No.l-Ashok. Shealso admitted that in the locality there were 3 persons, whose name were Ashok. It could not therefore be said with absolutecertainty that the deceased was referring to respondent No.1 alone. So far as Santosh Singh (PW.-3) is concerned, in his statement under Section 161 of the Cr.P.C., he had categorically stated that on reaching the spot he found that Rana Pratap Singh was unconscious. In his case diary statement, he did not narrate about any dying declaration by Rana Pratap Singh. 9. The medico legal report after examination of the deceased Rana Pratap Singh was not proved by the prosecution. It shows that the deceased was brought to the hospital on 10.2.1991 at 9:45 pm by Santosh Singh (P.W.-3), brother of the deceased and one Panna Lal Singh, a neighbour. It further shows that the deceased was stabbed by some unknown person. This further demolishes the testimony of Santosh (P.W- 3) regarding the dying declaration by the deceased. For the same reasons, the testimony of Surendra (P.W.-7) about the dying declaration of Rana Pratap Singh also becomes doubtful. The prosecution has also failed to prove that the so called dying declaration made by the deceased c wvwsssasfnsssewc'-s.s'!'-'-"" /--<: ••^) Rana Pratap Singh referred to the respondent No.1 alone andnone else. In his statementunder Section 161 of the Code of Criminal Procedure, Santosh (P.W.-3) did not state that the deceased had told him the father's name ofthe assailant. As regard the evidence ofVikram (P.W-14) regarding the deceased being last seen in the company of respondent No.1, there is no close proximity between the time they were seen together and the death of Rana Pratap Singh. 10. Having, thus considered the evidence led by the prosecution, we are of the considered opinion that the learned II Additional Sessions Judge on appreciation of evidence rightly held that the prosecution has failed to establish the guilt of respondents of the charge under Section 302 read with Section 34 of the IPC. Acquittal of the respondents is thus, well merited and does not call for any interference. 11. In the result, the appeal is without merit. It is liable to be dismissed and is accordingly dismissed. Sd/- Dilip Raosaheb Deshmukh Judge Sd/- R.L. Jhanwar Judge ^ :06.2009 5^^