Chattisgarh High Court
Sharad Goutam vs State Of Chhattisgarh on 17 December, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 25 of 2020
Judgment Reserved on : 29/11/2021
Judgment Delivered on :17/12/2021
1. Sharad Goutam, S/o Late Shri Satyaprakash Goutam, Aged About 30 Years,
R/o Sarawa, Police Station Shikarpur, District Bulandshahar, Uttar Pradesh.
2. Kamal Chandra, S/o Late Shri Ganpat Chandra, Aged About 20 Years, R/o
Village Sukhada, Police Station Dabhara, District Janjgir-Champa,
Chhattisgarh.
3. Radheshyam Kashyap, S/o Shri Garibram Kashyap, Aged About 36 years, R/o
Barbhatha, Police Outpost Pantora, Police Station Baloda, District Janjgir-
Champa, Chhattisgarh.
---- Appellants
Versus
• State of Chhattisgarh Through The Station House Officer, Police Station
Jaijaipur, District Janjgir-Champa, Chhattisgarh.
---- Respondent
For Appellants : Shri Rishi Rahul Soni, Advocate.
For State/Respondent : Shri Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Arvind Singh Chandel
C.A.V. Judgment
1. This appeal has been preferred against the impugned judgment
dated 21.11.2019 passed by the 2nd Additional Sessions Judge, Sakti,
District - Janjgir-Champa, (C.G.) in Sessions Trial No.13/2016
wherein appellants have been convicted and sentenced as under :-
Appellant Conviction Sentence
Sharad Goutam U/s 307/34 of the R.I. for 10 years and
I.P.C.,1860 fine of Rs.10,000 with
default stipulations.
U/s 27 of the Arms R.I. for 7 years and fine
Act, 1959 of Rs.10,000/- with
default stipulations.
(Both above sentences
to run concurrently)
Kamal Chandra U/s 307/34 of the R.I. for 10 years and
I.P.C.,1860 fine of Rs.10,000 with
default stipulations.
Radheshyam U/s 307/34 of the R.I. for 10 years and
I.P.C.,1860 fine of Rs.10,000 with
default stipulations.
2. Prosecution case, in brief, is that on 17.02.2015 at about 8:00 PM,
complainant Sanjay Kumar (PW1) was going to village Tumidih by his
motorcycle bearing registration No.CG 11/C 5064. When he reached
near canal situated between Odekera Kutrabod, appellants No.1,2&3
namely Sharad Goutam, Kamal Chandra and Radheshyam boarded
on motorcycle came from back side and they made an attempt to
commit murder of the complainant by firing gun shot and
consequently, the complainant sustained gun shot injury on his back.
After the incident, injured Sanjay Kumar (PW1) went to Krishna
Kumar Soni (PW17) and narrated the entire story to him. On
17.02.2015, on the basis of information given by Sanjay
Kumar(PW1), Dehati Nalishi (Ex.P2) and F.I.R. (Ex.P22) were
registered. Statements of complainant Sanjay Kumar and other
witnesses were recorded under Section 161 of Cr.P.C. After
completion of the investigation, a charge-sheet was filed. Trial Court
framed the charges. To prove the guilt of the accused/appellant,
prosecution has examined as many as 17 witnesses. No defence
witness has been examined. Statement of appellants under Section
313 of the Cr.P.C. were recorded, wherein accused/appellants have
pleaded innocence and false implication in the matter.
3. On completion of the trial, the trial Court has convicted and sentenced
the appellant as mentioned in first paragraph of this judgment. Hence,
this appeal.
4. Learned Counsel appearing on behalf of the appellants submits that
trial Court has wrongly convicted the appellants without there being
sufficient and clinching evidence against them. He further submits
that in Dehati Nalishi (Ex.P1) and F.I.R. (Ex.P22), names of the
assailants are not mentioned and both are lodged against unknown
persons. Sanjay Kumar (PW1) in his statement recorded under
Section 161 of Cr.P.C., has also not disclosed the names of any of
the assailants nor he has told anything regarding the identification of
the assailants. During investigation, Test Identification Parade of the
assailants/appellants have also not been conducted. For the first
time, complainant identified the appellants at the time of recording of
his statement before the trial Court which is suspicious and not
reliable. Apart from the statement of complainant Sanjay Kumar
(PW1), there is no other evidence available on record on the basis of
which it can be said that appellants were the assailants. Therefore,
conviction of the appellants by the trial Court is not sustainable.
5. Per contra, learned Counsel appearing for the State supports the
impugned judgment and submits that sentence awarded by the trial
Court is just and proper and requires no interference.
6. I have heard learned Counsel appearing for the parties, perused the
statement of witnesses and other annexed documents available on
record minutely.
7. There is no dispute on the point that except the complainant Sanjay
Kumar (PW1), there is no other eye-witness in this case. On perusal
of statements of Dr.S.L. Banjare (PW9), Dr. Y.R. Krishna (PW15), Dr.
Ravishekhar (PW16) and medical examination report of the
complainant i.e. Ex.P22, 25,26,27 and Ex.P33 and discharge
summary i.e. Ex.P30, it is well-established that Sanjay Kumar (PW1)
sustained one gun shot injury on his left lung. He was admitted in the
hospital from 18.02.2015 to 23.02.2015 and during that period, his
operation was also conducted by the Doctor. During course of
arguments also, learned counsel for the appellants does not make
any dispute about these facts.
8. Now, the question for consideration is that whether injury sustained
by complainant Sanjay Kumar (PW1) is caused by the present
appellants. Earlier, it has been discussed that except the complainant
Sanjay Kumar (PW1), there is no other eye-witness in this case.
Therefore, statement of the complainant Sanjay Kumar (PW1) has to
be examined minutely.
9. Sanjay Kumar (PW1), who is a Siksha Karma, Grade-1, posted as
Principal in a Higher Secondary School, Kutrabor has deposed that
on the date of incident, at around 8:30 PM, he went to an ATM and
withdrew Rs.10,000/-. From there, he went to a shop in his
motorcycle and then went to a wine shop. Thereafter, he again went
to a shop and purchased some item, there he saw appellant No.3
Radheshyam in the shop, there he also saw, Appellant No.1 Sharad
Goutam and appellant No.2 Kamal Chandra, who were standing near
shop with a motorcycle. Then he (complainant) went towards his
village. On the way, when he reached near a pond, appellants blew
loud horn of motorcycle, then he gave side to the appellants.
Thereafter, he heard a sudden loud sound, upon which he realized
that he sustained gun shot injury on his back. Then appellants
overtook him and while overtaking, he saw that appellant No.3
Radheshyam was riding the motorcycle, appellant No.2 Kamal
Chandra was sitting in the middle and appellant No.1 Sharad Goutam
was sitting in the back lashed with a gun. He further deposed that,
thereafter, he had gone to his uncle Krishna Kumar Soni (PW17) who
admitted him in the hospital. During cross-examination, in paragraph
8, he has stated that on the date of incident, when appellants
overtook him, then he identified them with the help of head light of his
motorcycle. In paragraph 9, he again deposed that after the gun shot,
speed of his motorcycle decreases and appellants overtook him and
then he saw the appellants.
10. On bare perusal of Dehati Nalishi (Ex.P2) and F.I.R. (Ex.P22), it is
clear that both are registered against unknown persons and names of
the assailants are also not mentioned. It is also not mentioned that
there were three assailants. Complainant Sanjay Kumar (PW1) in his
statement recorded under Section 161 of the Cr.P.C. on 18.02.2015,
has not disclosed the name of the assailants. However, first time he
disclosed that there were three assailants, but he has not stated that
he knew them or would identify them on seeing. He has also not
stated that while overtaking of the motorcycle, he had identified them
with the help of head light of the motorcycle. Prosecution has also not
conducted any Test Identification Parade of the appellants. On
12.04.2016, the complainant informed the S.H.O, Jaijaipur through a
letter vide Ex.P7 regarding his treatment. On the said letter also,
complainant has not stated anything regarding the identification or
names of the assailants. The complainant herein, is a well-educated
person. He is a Siksha Karmi, Grade-1, posted as Principal in a
School. If he had seen the assailants or known them, then he had
several opportunities to disclosed their names but he had not
disclosed the same. Rather, for the first time, at the time of recording
of his statement in the trial Court, he has identified the appellants,
therefore, the identification made in the Court is suspicious. On the
basis of the said identification, it cannot be concluded that the
appellants were the assailants. Thus, conviction of the appellants
under Section 307/34 of the I.P.C. is not sustainable and they are
entitled to get benefit of doubt.
11. With regard to the conviction of the appellant No.1 Sharad Goutam
under Section 27 of the Arms Act, 1959, on perusal of evidence
adduced by the prosecution, it is established that on the basis of
discloser statement i.e. Ex.P9 and seizure memo i.e. Ex.P10, one
countrymade gun, 7 cartridge of 315 bore were seized from his
possession. For carrying the aforesaid arms and ammunition, he did
not possess any legal licence. In the present case, prosecution has
failed to submit the ballistic expert report. Thus, on the absence of
the said report, it cannot be established that on the date of incident,
appellant No.1 Sharad Goutam had used the countrymade gun.
Therefore, conviction of the appellant No.1 Sharad Goutam under
Section 27 of the Arms Act, 1959 is also not sustainable. Since, it has
been established that one countrymade gun, 7 cartridge of 315 bore
were seized from his possession and for carrying the aforesaid arms
and ammunition, he did not possess any legal licence, and, therefore,
he is liable to be punished under Section 25(1A) of the Arms Act,
1959.
12. Resultantly, appellant No.2 and 3 namely Kamal Chandra and
Radheshyam Kashyap respectively, are acquitted of the charge under
Section 307/34 of the Indian Penal Code. It is reported that they are
in jail, therefore, it is directed that they be released forthwith, if not
required in any other case. Further, Appellant No.1 Sharad Goutam is
also acquitted of the charge for the offence punishable under Section
307/34 of the Indian Penal Code. He is also acquitted of the charge
under Section 27 of the Arms Act, 1959 and instead of that he is
convicted under Section 25(1A) of the Arms Act, 1959 and sentenced
for rigorous imprisonment for 6 years and to pay fine of Rs.10,000/-.
Ordered accordingly. In default of payment of fine, he is liable to
undergo additional rigorous imprisonment for further three months.
13. Consequently, the appeal is allowed in part to the extent indicated
above. Record of the Court below be sent back along with a copy of
this judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
Judge
Prakash
