1 2025:CGHC:13924 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 891 of 2004 Nathu Ram @ Rajendra Kumar Nirmalkar S/o Ramcharan Nirmalkar, Aged about 18 years, R/o Deepak Nagar, Durg District- Durg. ... Appellant versus State Of Chhattisgarh through : Police Station Mohan-Nagar, Durg, District- Durg. ... Respondent For Appellant : Mr. N. K. Chatterjee, Advocate For Respondent : Mr. Ankur Kashyap, Dy. G.A. Hon'ble Shri Justice Sachin Singh Rajput Judgment on board 22/03/2025 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 12.10.2004 passed by the 1st Additional Sessions Judge, District - Durg (C.G.) (for short trial Court) in Session Trial No.53/2003 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below - Conviction U/s 304 Part-I of Indian Penal Code. Sentence Awarded 5 years R.I. and Fine of Rs. 1000/- in default of payment of fine 3 months R.I. 2 2. Two accused persons namely Sagar Kumar and Nathu Ram @ Rajendra Kumar Nirmalkar (Present appellant) were put to trial with a charge that in order to commit the murder of deceased Bunty Yadav with furtherance of common intention they assaulted him with hockey-stick and thrown him out of the bus resulting into his death. The said offence is punishable under Section 302 read with Section 34 of the IPC. 3. The prosecution case in brief is that on the date of incident dated 28.10.2002, in the evening Lokesh Dahariya Pw-4 had come to the house of the complainant Toman Kumar Pw-13 and both of them were going towards Lakkhasingh Petrol Pump via Rajendra Park, Circuit house with their friend Neel Kanth Pw-14. A mini bus bearing Registration No. CG 04-ZA/0534 came from the bus stand at a high speed, a boy fell from it who told his name as Bunty Yadav and became unconscious due to a head injury. As a result of which, he was admitted to the Government Hospital, Durg by them. The incident was reported to the Police station by the Neelkanth Pw-14 and Toman Kumar Yadav Pw-13. Due to the severity of the injuries sustained, he was admitted to Sector-9 Hospital, Bhilai, where he died during treatment. Merg Intimation Ex.P/8 was registered and thereafter the first information report was registered vide Ex.P-5. On the strength of the memorandum statement of appellant Nathuram @ Rajendra Kumar, blood stains, clothes, full pants, shirt and hockey-stick was recovered. The hockey-stick was used to assault the deceased Bunty Yadav which also contains some blood stains. The seized articles were sent for forensic science laboratory for chemical analysis. Statement of the witnesses were recorded. 3 4. On completion of investigation, charge-sheet was filed against appellant Nathu Ram and co-accused Sagar Kumar before the judicial Magistrate 1st Class, Durg who committed the case to the Sessions Court and who made over the case to the learned trial Court. 5. The appellant Nathu Ram and the other co-accused Sagar Kumar were charge for the offence punishable under Section 302 read with Section 34 of the IPC. Thus denied the charges and claimed to be tried. 6. Prosecution in order to prove its case, examined total 15 witnesses and exhibited 22 documents while the accused persons examined 3 witnesses in their defence. Statements of accused persons were also recorded under Section 313 of CrPC in which they denied all incriminating evidence available against them, pleaded innocence and false implication. By the judgment impugned the appellant Nathuram the other co-accused Sagar Kumar were convicted and sentenced as stated above. 7. The appellant Nathuram has preferred this appeal the other co-accused Sagar Kumar preferred a CRA No. 877/2004 which was abated vide order dated 08.04.2024 by this Court as he passed away on 07.01.2024. 8. Learned counsel for appellant argues that the prosecution was unable to bring home the guilt of the appellant beyond reasonable doubt. He submits that the allegation against the appellant with regard to assault made by hockey-stick and throwing deceased from the moving bus has not been proved by prosecution. He submits that there is no eye-witness with regard to assault made by the appellant. He submits that initially the FIR was lodged under Sections 279, 337 of the IPC. He submits that the memorandum and seizure witnesses have not supported the case of the prosecution, therefore, the recovery of the hockey-stick has not been proved in accordance with law. He 4 further goes on to submits that according to the FSL report Ex.P/20 only blood was found on the hockey-stick and neither the origin of blood nor its blood group was mentioned in the FSL report. He submits that it appears it was a simply case of Section 304(A) of the IPC which has been converted into a case of murder. Therefore, the appeal may be allowed and the conviction of the appellant may be set aside. 9. On the other hand, learned State Counsel submits that the trial Court meticulously examined the evidence brought before it and after due assessment of the evidence, found the appellant Nathu Ram and co-accused Sagar Kumar guilty of the offence and the meritorious finding recorded by the learned trial Court does not require any interference by this Court. 10. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 11. Perusal of the impugned judgment indicates that the learned trial Court basically relied upon the recovery made at the instance at the appellant and also the report of the FSL Ex.P/20 which appears to have stated that the hockey-sticks contains the blood. Even though, the memorandum and seizure witnesses are not supported the case, the trial Court has held that they have admitted their signature and their respective seizure and memorandum, therefore, the recovery of the sticks at the instance of the appellant is beyond reasonable doubt. Considering all the aspects of the matter, the learned trial Court came to a conclusion that despite of knowing the fact that by throwing him from the bus it could cause the death of the deceased Bunty Yadav by assaulting him by hockey-stick instead of convicting them under Section 302 of IPC convicted the appellant Nathu Ram and other co-accused Sagar Kumar under Section 304 Part-I of the IPC. 5 12. The prosecution in order to bring home the guilt, examined Pw-1 Deepak Lalwani, he appears to the witness of seizure of T-shirt & full pant Ex-P/1 and hockey-stick Ex.P/2. He stated that he had gone to the police station and put his signature on seizure memo Ex-P/1 as well as on Ex-P/2. In paragraph No. 2 he has stated that he has a bakery near Mohan Nagar police Station. Police took him from the bakery to police station and got his signature done in 3-4 papers. He has not allowed to read what is written in that paper. He has specifically stated that police has not done any proceedings before him neither any statement was recorded. He also stated that he does not know about Ex.P/1 & Ex.P/2. He has not gone to Deepak Nagar with police. No seizure was made before him. He further goes on to depose that on the saying of Police and being frightened he put his signatures on Ex.P/1 & Ex. P/2. 13. Pw-2 Dr. V.K. Sao was examined by the prosecution. According to him, he was working as Medical Officer in Government Hospital, Durg and on 28.10.2002 Neelkanth Yadav Pw/14 brought the deceased Banti Yadav and according to this witness the deceased was unconscious and was gasping. Alcohol smell was coming from his breath and there was a swelling on the right side of his head and a torn wound on the back side of his head. He further stated that the patient was not in a good condition and was admitted for treatment, operation and for X-ray also. The said injuries could come through hard and blunt object. In cross-examination he has deposed that the injuries sustained by the deceased Bunty Yadav could be caused by falling from the running bus. 14. Pw-3 Dr. C. S. Mure conducted the post-mortem of the deceased Bunty Yadav and according to him, the cause of death was coma which may have been due to head injuries sustained by the deceased Bunty Yadav. He gave his report Ex.P/4 and also give the query report with regard to stick and hockey which is 6 said to have been seized from the appellant Nathu Ram and the other co- accused Sagar Kumar and gave a query report Ex.P/5. 15. From the statement of these two Doctors, it is quite evident that the deceased Bunty Yadav died on account of Coma as a result of the head injuries. But the question which comes before this Court for determination as to whether the injuries caused by the appellant by the hockey-stick and thereafter he threw the deceased Bunty Yadav from the running bus. 16. The case prosecution initially was that three persons namely Lokesh Dahariya Pw/4, Toman Kumar Pw/13 and Neel Kanth Pw/14 saw the deceased Bunty Yadav fallen from the bus and who took the deceased for medical treatment to District Hospital, Durg. In this context statement of Pw-4 Lokesh Kumar is examined. He simply stated that when he along with other two witnesses Toman Pw/13 was going through Mennonite Church he saw a bus passed and a boy fell down as the boy fell the bus got slow and thereafter after falling of the boy, the bus went ahead with speed towards Raipur. This is the only statement which could be gathered forth witnesses that he has the witness to the fact that a boy fell from the bus and he admitted him in the hospital. 17. Pw-6 Balramkumar Sarthi was projected as an eye-witness by the prosecution. This witness was declared hostile. Perusal of the statement of this witness indicates that on the date of incident he was working as a conductor in the Vaibhav Laxmi Travels. There was a quarrel on account of the passengers between the Driver Sagar Kumar and Driver of Dashmesh Travels Chandu between Kumhari and Charauda. Thereafter, they came to Durg and they again went to Raipur and at 6.00 p.m. they were standing for coming back to Durg. Again the quarrel between the driver of Dashmesh Travels and conductor took place which was subsequently pacified. Thereafter they came back to the Durg 7 and near the Durg Church they were boarding down the entire passengers. At that time looking to the fight he ran away. He denied to given any statement to the police Ex.P/6 from ‘A to A’ part which reads as under: “They pulled me down and I pushed them and ran away. I hid in the garage near the petrol pump. When the bus reached Malviya Chowk, I reached the place where the bus stops. Sagar told me that Bunty Yadav started hitting him with a knife and fists in the bus. When Nathu also saw him, he tried to free him. He left me and started attacking Nathu. Then Nathan, on my request, hit Bunty Yadav on the head with a hockey stick and let him go and fell down later.” 18. From the material particular this witness has not stated that the appellant Nathu Ram and other co-accused Sagar Kumar had made any assault and denied that incident has occurred before him. 19. Pw-7 Hemlal Yadav only indicates to have stated about the fact that the deceased Bunty Yadav has fallen from the vehicle and was admitted in the Government Hospital, Durg. 20. Pw-8 Mohd. Jafar is a witness to seizure made Ex.P/7 and he has turned hostile. 21. Pw-11 Suryabhan Meshram ASI is the investigating officer who supported the case of the prosecution. 22. Pw-12 Vipin Kumar is a witness to the seizure of stick is said to have put his signature on Ex.P/1 & Ex. P/2. However he does not remember what was seized. Vide Ex/P/2 a hockey-stick was seized before him. In his statement he stated that he does not know what documents are Ex.P/1 and Ex.P/2. Ex.P/1 was not read over to him. He further stated that police has got his signatures on 3-4 papers and nature of the documents he is not aware. No paper work was done in front of him. He further stated that his house is behind Mohan Nagar 8 Police station and prior to it on 3 occasions police has got his signatures. He has not gone to Deepak Nagar with police. Police has shown the stick as being seized however from whom and from where it seized is informed by them. No proceeding was done before him. 23. Pw-13 Toman Kumar Yadav is witness to the FIR Ex.P/5. Who deposed that he took the deceased Bunty Yadav to the hospital. 24. Pw-14 Neelkanth Yadav also does not through any light as to whether the deceased Bunty Yadav was assaulted by the appellant herein. 25. The learned trial Court gave much emphasis to the recovery of the stick and the blood found on hockey-stick. However, by minute examination of the seizure witnesses, this is quite apparent that they have not supported the case of the prosecution and simply stated that they have put their signatures being frightened from the police. 26. Apart from this, it is to be seen that only blood was found on the stick neither the origin of the blood nor any blood group was specifically mentioned in the FSL report. No cogent and prudent evidence is available with regard to assault made by the appellant to the deceased Bunty Yadav. It is not established by clinching evidence that the deceased was thrown by the appellant rather initially the FIR was lodged under Sections 279, 337 of IPC. From the statement of witnesses it is quite evident that they saw the deceased Bunty Yadav falling from the bus. It is to be seen that when the bus was coming Raipur to Durg, naturally on the route some passengers must have boarded on the bus, however, none of those passengers have been made witnesses. Therefore, on the evidence which has been brought on record, it would not be safe to convict the appellant. 9 27. Accordingly, the appeal is allowed and impugned judgment is hereby set aside. The appellant Nathu Ram @ Rajendra Kumar Nirmalkar is reported to be on bail. His bail bonds will remain in force for 6 months in view of Section 481 of the BNSS, 2023. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Sd/- (Sachin Singh Rajput) JUDGE H.Ansari HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.03.26 13:34:13 +0530