Chutcula Nand Prajapati vs State Of Chhattisgarh
2022 Latest Caselaw 154 Chatt

                                        1

                                                                         NAFR


             HIGH COURT OF CHHATTISGARH, BILASPUR


                             CRA No. 190 of 2006
                      Order reserved on : 28/09/2021
                     Order delivered on : 10/01/2022
      Chutcula Nand Prajapati, S/o Shri Dularchand Prajapati, aged
          about 35 Years, R/o No. BALCO Nagar Q.No. 479 Section 5
          Police Station & District-Korba (C.G.).

                                                                  ---- Appellant

                                      Versus

      State of Chhattisgarh, Through Police Station Civil Lines,
          Raipur (C.G.).

                                                             ---- Respondent

For Appellant : Mr. Arvind Dubey, Advocate

For Respondent/State : Ms. Subha Shrivastava, P.L.

Hon'ble Smt. Justice Rajani Dubey CAV Order 10.01.2022

1. Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 21.02.2006 passed by Fourteenth Additional Sessions Judge, Fast Track Court, Raipur (C.G.) in Sessions Trial No. 158/2005 whereby, the trial court has convicted the appellant and sentenced him as under:-

 S.No.       Conviction                           Sentence
     1.     U/s 304 [A] of                     R.I. for 2 years
                 IPC

2. Brief facts of the case are that on 26.11.2005 at about 2:30

pm, in front of the house of Director General of Police, it is alleged that due to negligence of the appellant the deceased had suffered gunfire injuries. Deceased was taken to hospital and he died during treatment. FIR (Ex.P/8) was registered against the appellant. Spot map was prepared vide Ex.P/11 and seizure memo was prepared vide Ex.P/1. Roznamcha Sanha was prepared vide Ex.P/4. Merg intimation was prepared vide Ex.P/9. Dr. Shivnarayan Manjhi (PW-

18) examined the deceased and gave his report vide Ex.P/17 and opined that the cause of death is injuries on chest due to gun fire. After investigation, charge-sheet was filed against the appellant and charges were framed against him under Section 304 [A] of IPC.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded his innocence and false implication in the case.

4. On the basis of oral and documentary evidence, trial court has convicted the appellant under Section 304 [A] of IPC and sentenced him as mentioned in para 1. Hence, this appeal filed by the appellant.

5. Learned counsel for the appellant submits that the impugned judgment is patently illegal and contrary to law but the learned trial court had failed to appreciate the evidence and documents produced before him in its correct perspective. Learned trial court had failed to appreciate that the deceased himself had taken the pistol in his hand and was trying to open without permission of the appellant and got injured by the gunshot. The learned trial court had failed to appreciate that none of the witnesses had seen the appellant explaining the deceased about handling of the pistol and everyone turned his face towards the deceased & the appellant after hearing the gunshot. Prosecution witnesses did not support the case of the prosecution and the learned trial court only on presumption

convicted the appellant which is contrary to law and legal principles.

6. On the other hand, learned counsel appearing for the State has supported the impugned judgment.

7. Heard counsel for the parties and perused the material available on record.

8. Before the trial court, prosecution has examined 18 witnesses. Except the fact that the pistol was issued in his name and death of the deceased was caused by gunshot from his pistol, other facts have been denied by the accused/appellant before the trial court.

9. Beniram Sinha (PW-1) has stated in paragraph 1 of his cross- examination that,

"1. vkjksih jktkjke dks gfFk;kj ds ckjs esa le>k jgk Fkk] mlh le; vpkud xksyh py xbZ rHkh ge yksxksa us /;ku fn;kA mijksDr xksyh vkjksih ls pyh ftldh rRdky lwpuk eSaus vanj tkdj iqfyl egkfufj{kd Jh jkBkSj dks nhA"

10. Surendra Prasad Yadav (PW-2) has stated in paragraphs 1 and 3 of his cross-examination that,

"1. pqVdqyk uan vkSj e`rd jktkjke ckgj vk;k vkSj pcwrjs ds ikl gekjs ihNs cSB x;sA fQj eSa xksyh dh vkokt lquk] m/kj x;k rks ns[kk pqVdqyk uan jks jgk Fkk] pqVdqyk uan cksy jgk Fkk fd gekjh ianzg lky dh ukSdjh ij nkx yx x;k vkSj e`rd dks idM+dj jks jgk Fkk] dSls xksyh yxh eSa ugha tkurk gwaA

3- csYV vkSj fiLVy dks pcwrjs ij [kksydj j[kk FkkA ;g dguk xyr gS fd ml le; jktkjke fiLVy dks b/kj&m/kj myV&iyV dj ns[k jgk Fkk mlh le; mlds gkFk ls fiLVy py xbZA"

11. Ravishankar Sharma (PW-14) has stated in paragraph 1 of his cross-examination that,

"1. jktkjke vkSj pqVdqyk uan Hkh caxys ls ckgj fudydj vk;s gekjs ihNs dh vksj ds pcwrjs ds fgLls esa cSBdj ckr&phr dj jgs FksA xksyh pyus dh vkokt vkbZ rks ge yksx ns[ksA

jktkjke fxj x;k Fkk] mls xksyh yxh Fkh] pqVdqyk uan [kM+k gksdj jks jgk FkkA"

this witness was declared hostile by the prosecution in prosecution cross-examination but he denied all suggestions of prosecution.

12. Beniram Sinha (PW-1) has stated that pistol was shot by accused/appellant but other witnesses did not support the version of the prosecution case.

13. Dileep Pandit (DW-1) has stated that,

"nwljs dkys vkneh us vfHk;qDr ds dej esa yxs fiLVy fudky fy;k Fkk] vfHk;qDr bl ij >iVk fd ;g D;k dj jgs gks] rks xksyh py xbZ] tks ml O;fDr dks yxhA xksyh mlh O;fDr ds gkFk ls pyh FkhA"

14. Learned trial court has convicted the appellant for the offence punishable under Section 304 to 304 (A).

Section 304 A reads as under:-

"Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

15. Beniram Sinha (PW-1) has only stated that the accused has shot gunfire but other witnesses did not support his version and everyone has stated that after hearing the voice of gunshot they turned his face and reached the spot. Beniram Sinha (PW-1) also stated in para 3 of his cross-examination that,

"tc vkjksih vkSj jktkjke gekjs ikl pcwrjs esa vk;s rc jktkjke us pqVdqyk uan ls dgk Fkk fd og mls fiLVy [kksyuk vksj tksM+uk fl[kk ns] mlds ckn jktkjke vkSj vkjksih fiLVy dks [kksyuk vkSj tksM+uk dj jgs FksA pqVdqyk uan us esjs lkeus

fiLVy [kksyk Fkk] vc xokg dgrk gS fd pwafd vkjksih vkSj jktkjke gekjs ihNs cSBs gq, Fks vkSj fiLVy ds [kksyus vkSj tksM+us dh vkokt vk jgh Fkh mlh vk/kkj ij eSa crk jgk gwa fd pqVdqyk uan us fiLVy dks [kksyk FkkA"

This witness is also not sure about the gunshot and who triggered the pistol. It is well settled principle of criminal justice that conviction cannot be based upon presumption or surmises. In this case, only eye-witness Beniram Sinha (PW-1) has stated in his examination-in- chief against accused/appellant but in para 3 of his cross- examination, he has stated that he was not there but the learned trial court did not appreciate the whole cross-examination of this witness and other witnesses and held guilty and convicted the appellant under section 304[A] of IPC.

16. The conviction of the appellant by the trial Court is not based on proper appreciation of oral and documentary evidence. The prosecution has failed to establish the guilt of the accused/appellant. Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the trial court is set aside and the appellant is acquitted of the charges of 304[A] of IPC.

Sd/-

(Rajani Dubey) JUDGE

Ruchi/-