Narayan and Others vs State of M.P. (Now C.G.)

R.L. Jhanwar, J.—This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 10.3.1992, delivered in S.T. No. 1/1988, whereby, the learned 2nd Additional Sessions Judge, Raipur has convicted the Appellants u/s 307 read with Section 34 of the IPC and sentenced each of them to undergo R.I. for 5 years and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for one month.

The case of the prosecution, in brief, is that on 16.8.1987 the Appellant No. 2 Rekhu lodged FIR stating therein that on 15.8.1987 from the evening of 5:00 pm. he along with Chintu were on duty in the village Birbira at Chain No. 2371 and they were sitting in Kundra at about 12:00 in the night, at that time, one man came there and asked them a glass for drinking water. He offered bidi to them, however, they did not accept, then suddenly he assaulted both of them with hands and fists, thereafter, one more person came there and he also assaulted both of them with hands and fists. However Rekhu escaped from there and met with Hari and Maniram. Then, they altogether reached to the place of occurrence and saw that Chintu was lying there who was unconscious. The matter was reported and the FIR was lodged by the police. Chintu was sent for medical examination. Dr. Sharad Chandra Shrivastava (P.W.-7) examined injured Chinturam and found several simple injuries on his body.

After 25 days of this incident Chandradip Singh (PW. 10), Naiab Tehsildar, recorded dying declaration of Chintu, Ex. D-3, and Investigating Officer took statement of Chintu, in which Chintu made allegation against the Appellants and alleged that he was assaulted by the Appellants in the night of 15.8.1987. Police investigated the matter in the light of allegation made by Chintu (P.W. 3) and after completing the investigation charge sheet was filed against all the Appellants u/s 307 read with Section 34 of the IPC in the Court of Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions, Raipur. The learned Sessions Judge made over the case to the learned II Additional Sessions Judge, Raipur for trial.

Charge u/s 307 read with Section 34 of the IPC was framed and read over and explained to the Appellant, who abjured the guilt and pleaded that they have been falsely implicated in the case. Appellant No. 1 and 3 took a plea of alibi.

The learned II Additional Sessions Judge, after evaluating the evidence available on record and hearing the counsel for respective parties and relying upon the sole testimony of Chintu convicted the Appellants and sentenced them, u/s 307 read with Section 34 of the IPC, as above.

I have heard learned Counsel for both the parties and have perused the record of the S.T. No. 1/1988.

Dr. Sharad Chandra Shrivastava (P.W.-7) examined injured Chinturam and found following injuries on his body:

i. lacerated wound on the right side of cheek, size 2 x 1 x 0.5cm.

ii. Small wound on forehand size - 0.5 x 0.2 x 0.2cm.

iii. Lacerated wound on right side of jaw size- 6 x 2x 1cm.

iv. Stabbed wound on the right side of chest size 1 x 1 x 1cm.

v. Lacerated wound on the left side of chest size -2 x 1 x 0.4cm.

vi. Lacerated wound on the right knee size 2 x 0.5 x 0.2cm.

vii. Small wound on the left elbow, size 1 x 0.5 x 2cm.

viii. Found ear lacerated into two parts.

He opined all the injuries simple in nature. He further opined that the all above injures could be caused by lathi. His report is Ex. P-4 A.

From his evidence, it is clear that Chintu was neither unconscious nor he was referred to any other hospital for further treatment. It is evident that after 25 days of the incident, first time, Chintu deposed to police that the Appellants assaulted him. Explanation for delay in lodging FIR offered by him was that he was unconscious for that period. The prosecution did not adduce any evidence to support that after the incident Chintu was admitted to any hospital or referred to any hospital in unconscious condition. In absence of any substantial medical evidence to support unconsciousness, the statement of Chintu becomes completely unreliable.

Appellants in defence produced 6 witnesses. According to Dr. Rajendra Jain (D.W-1) Narayan came to him for treatment on 11.8.1987, Ex. D-6. Parshuram (D.W. 2) also deposed that on the date of incident the doctor came to see Narayan, as he was suffering from some disease. The doctor stated that Narayan was not able to move freely. Dr. Anil Nayak (D.W. 3) stated that on 15.8.1987 he went to see Narayan, as he was suffering from dehydration, he was not in a position to move freely. Nirmal Kumar (D.W.-4) stated that Panchu was on duty on 15th August 1987 with him and in the whole night they were on duty. He also deposed that at about 3-4 am, Hridayaram, timekeeper called us and said that somebody has assaulted Chintu. Hridayram (D.W. 5) also supported him and deposed that Panchu was on duty on 15th August 1987. Hari and Shankar came and told that somebody has assaulted Chintu.

In this way, it is evident that Narayan was ill on the date of incident and Panchu was on duty in the whole night on the same date with Hridayram and Nirmal Kumar. According to Chintu, Rekhu was also on duty with him. Chintu has not deposed that there was animosity amongst Rekhu, Narayan and him. Thus, as to how they would assault Chintu. The defence taken by the Appellants does not appear to be false or concocted, as the evidence of Chintu suffers from serious infirmity which cannot be relied on; even he has given the statement for falsely implicating Panchu because there was an illicit relationship between his wife and Panchu.

For the foregoing reasons, I am of the opinion that the learned Special Court has committed error in believing the evidence of Chintu (P.W. 3) and thereby convicting the Appellants.

In the result, the appeal succeeds. Conviction for offence under Sections 307 read with Section 34 of the IPC recorded by the trial Court and sentence passed by the trial Court for committing the said offence are set aside. The Appellants arc acquitted of the charge u/s 307 read with Section 34 of the IPC. They be set at liberty, forthwith, if not required in any other case.