Chattisgarh High Court
Mohammad Ashif vs State Of Chhattisgarh on 29 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 383 of 2011
Mohammad Ashif S/o Mohammand Farq, Ageda about 19
years, R/o Santoshi Nagar, Chourasiya Colony,
Police Tikrapara, Q. No. 15, Raipur, Distt.
Raipur, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through the District
Magistrate, District Raipur, Chhattigarh.
Respondent
For Appellant : Mr. Rajkumar Pali, Advocate
For State : Mr. Afroz Khan, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
29/08/2022
Sanjay K. Agrawal, J.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. The first question for consideration is whether the
death of deceased Balram Sen was homicidal in
nature ?
10. 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.
11.The next question for consideration is whether the
appellant is the author of the crime in question ?
12. 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.
13. 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.
14. The instant appeal is allowed accordingly.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
