Mohammad Ashif vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 08/04/2011 passed in Sessions Trial No. 146/2010 whereby learned 7th Additional Sessions Judge, Raipur has convicted the appellant/accused for offence punishable under Section 302/34 of IPC and Sections 25(1)(A) and 27 of the Arms Act, 1959 and sentenced to life imprisonment and fine of Rs. 500/­ in default of payment of fine additional S.I. for 3 months; R.I. for 3 years and fine of Rs. 500/­ in default of payment of fine additional S.I. for 3 months; and R.I. for 3 years and fine of Rs. 500/­ in default of payment of fine additional S.I. for 3 months, respectively.

Case of the prosecution, in brief, is that on 15/03/2010 in between 08:30 PM to 10:30 PM, in the fields of Village Dunda, P.S. Tikrapara, the appellant herein along with one co­accused Deep alias Deependra Singh Thakur (delinquent) assaulted Balram Sen with a knife, which he is said to have possessed without license, due to which Balram Sen suffered grievous injuries and succumbed to death, and the appellant, thereby, committed the aforesaid offences.

Further case of the prosecution, in brief, is that Narsingh Sen (P.W.­1) lodged a report at Police Station Tikrapara that on the fateful day, one Narayan Bhatt of his village informed him that his brother Balram Sen (deceased) is lying dead near the canal. When he went there, he found Balram Sen lying unconscious and there were two stab wounds on the backside of his body and blood was oozing out of the said wounds. On the said report, merg intimation was registered vide Ex. P/1 and FIR was lodged for offence punishable under Section 302 of IPC vide Ex. P/2. Summons were issued to the witnesses under Section 175 of CrPC vide Ex. P/3 and after conducting inquest vide Ex. P/4, the dead body of Balram Sen was sent for postmortem, which was conducted by Dr. Shivnarayan Manjhi (P.W.­11) and the postmortem report has been filed as Ex. P/23 in which cause of death is said to be haemorrhage and shock as a result of stab injuries on the abdomen and the nature of death is said to be homicidal. Thereafter, pursuant to memorandum statement of the appellant vide Ex. P/11, recovery of a wallet containing Rs. 800/­ and a voter ID card issued by the Election Commission of India in the name of Neha Sen, wife of Balram Sen has been made from the possession of the appellant herein vide Ex. P/14 and pursuant to the memorandum statement of co­accused Deep alias Deependra Singh Thakur vide Ex. P/10, recovery of knife, Rs. 1000/­ and one motor­cycle has been seized from his possession vide Ex. P/12. The seized knife was sent for examination and Dr. Shivnarayan Manjhi (Ex. P/11), Demonstrator of Department of Forensic Medicine and Toxicology has clearly opined that the injuries found on the dead body of Balram Sen could be caused by the said knife and the presence of blood on the said knife could be ascertained by FSL report. After recording the statements of the witnesses and after due investigation, the appellant/accused was charge­sheeted for offence punishable under Section 302/34 of IPC and Sections 25(1)(A) and 27 of the Arms Act which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. The co­accused Deep alias Deependra Singh Thakur, being a juvenile, has been tried by the Juvenile Justice Board, Raipur.

In order to bring home the offence, prosecution examined as many as 13 witnesses and brought into record 27 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt and examined 2 witnesses in his defence but did not bring any document on record.

Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for offence punishable under Section 302/34 of IPC and Sections 25(1)(A) and 27 of the Arms Act which has been called in question by way of this appeal.

Mr. Rajkumar Pali, learned counsel for the appellant, would submit that learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences as pursuant to the memorandum statement of the appellant/accused vide Ex. P/11, a wallet containing Rs. 800/­ and one voter ID card of Balram Sen's wife Neha Sen has been recovered vide Ex. P/14 which has not been identified by any of the witnesses including wife of the deceased and there is no other evidence on record to hold the appellant guilty for the aforesaid offfences. Even the recovery of knife, from which the injuries have been inflicted on the deceased, has been made from the possession of the co­accused Deep alias Deependra Singh Thakur, as such, the appellant could not have been convicted for the aforesaid offences even with the aid of Section 34 of IPC, therefore, the instant appeal be allowed and the appellant be acquitted of the charges levelled against him.

Per Contra, Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted him for the aforesaid offences, as such, the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein­above and went through the records with utmost circumspection.

The first question for consideration is whether the death of deceased Balram Sen was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. Shivnarayan Manjhi (P.W.­11) who has conducted postmortem of the deceased and he has clearly stated in the postmortem report (Ex. P/23) that cause of death is haemorrhage and shock as a result of stab injuries on the abdomen and the nature of death is said to be homicidal. Taking consideration of the entire evidence available on record as well as looking to the two stab wounds suffered by the deceased on the backside of his body and relying upon the medical opinion of Dr. Shivnarayan Manjhi (P.W.­11) as well as postmortem report (Ex. P/23), we are of the considered opinion that learned trial Court has rightly held the death of deceased Balram Sen to be homicidal in nature. Moreover, the fact that death of the deceased was homicidal in nature has not even been seriously disputed by learned counsel for the appellant. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Balram Sen is homicidal in nature.

The next question for consideration is whether the appellant is the author of the crime in question ?

From a careful perusal of the record, it is quite evident that pursuant to the memorandum statement of the appellant/accused herein recorded under Section 27 of Indian Evidence Act, 1872 vide Ex. P/11, a wallet containing Rs. 800/­ and one voter Identity card of Neha Sen, wife of the deceased, has been seized from his possession vide Ex. P/14 and the fact remains that the voter ID card has not been identified to be deceased by any of the witnesses including wife of the deceased, Neha Sen (P.W.­9). Moreover, the two seizure witnesses namely Khuman Verma (P.W.­12) and Chanchal Verma (P.W.­13) have turned hostile and they have not at all supported the case of the prosecution. Therefore, prosecution has failed to duly prove memorandum and seizure against the appellant herein. Apart from that, there is no other incriminating evidence available on record against the appellant to hold him guilty for offence punishable under Section 302 of IPC even with the aid of Section 34 of IPC. In that view of the matter, we are unable to hold the offence punishable under Section 302 of IPC against the appellant herein. So far as the offences punishable under Sections 25(1)(A) and 27 of the Arms Act are concerned, the recovery of knife from the injuries have been inflicted upon the deceased, has been made from the possession of the co­accused Deep alias Deependra Singh Thakur and no evidence has been brought on record by the prosecution to prove that the injuries suffered by the deceased were inflicted by the appellant herein, as such, the trial Court has erred in holding the appellant guilty for the offences punishable under Sections 25(1)(A) and 27 of the Arms Act as well.

In view of the aforesaid legal analysis, the appellant herein is acquitted from the charges punishable under Section 302/34 of IPC as well as Sections 25(1)(A) and 27 of the Arms Act and he be released forthwith, if not required in any other case. It is made clear that this Court has not expressed any opinion on the trial of the co­ accused Deep alias Deependra Singh Thakur and will be tried by the Juvenile Justice Board in accordance with law and this Court has also not expressed any opinion on any other case filed against the appellant/accused or co­accused Deep alias Deependra Singh Thakur and they will be decided on merits absolutely in accordance with law.

The instant appeal is allowed accordingly.