1 2025:CGHC:1942-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 571 of 2021 1 - Rahul Sahu S/o Ramanand Sahu Aged About 30 Years R/o Chirpani Rajeev Nagar Dongargarh, P.S. Dongargarh District Rajnandgaon Chhattisgarh 2 - Ranjeet Sahu, S/o Ramanand Sahu, Aged About 22 Years R/o Chirpani Rajeev Nagar Dongargarh, P.S. Dongargarh District Rajnandgaon Chhattisgarh ... Appellants versus State Of Chhattisgarh Through SHO, Dongargarh, District Rajnandgaon Chhattisgarh. ... Respondent For Appellants : Mr.B.P.Singh, Advocate For Respondent : Mr.Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, C.J. 13/01/2025 1. The appellants have preferred this criminal appeal under Section 374(2) of the CrPC questioning the impugned judgment dated 27.03.2021 passed by the Additional Sessions Judge, Dongargarh, District Rajnandgaon, in Sessions Case No.08/2019, BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.15 17:49:50 +0530 2 by which they have been convicted for offence under Section 302/34 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.100/-, in default of payment of fine to further undergo RI for one month each. 2. Case of the prosecution, in brief, is that the appellants have caused injury to deceased Himesh Borkar due to previous enmity near Hirwani Dhabha, Baghiyatola and the deceased sustained injuries over right hand, back and leg, then the eyewitness who is claimed to be present with the deceased i.e. Kamlesh Joshi (PW- 4) has admitted the deceased to the Dongagarh Government Hospital through auto rickshaw. Dehati nalsi (Ex.P-9) was lodged by Kamlesh Joshi (PW-4) and on that basis FIR was lodged by Kamlesh Joshi which is Ex.P-15. MLC of the deceased was conducted at Dongargarh Public Health Center where the deceased was found semi conscious and the treating doctor has found that there is scratch on the right elbow and it can be caused by hard and blunt object. MLC (Ex.P-11) is proved by Dr.S.Choudhary (PW-6). Thereafter, the deceased was admitted in Pt. Jawahar Lal Nehru Medical College and Dr.B.R.Ambedkar Memorial Hospital, Raipur on 6.3.2019 where x-ray of right elbow, left ankle, chest and abdomen was done by Dr.Nilesh Gupta (PW- 9) and he has not found any fracture over the said parts of the deceased and he has not conducted x-ray of skull. The x-ray report is Ex.P-13. The treatment was started in Ambedkar 3 Hospital, Raipur by the doctors upto 14.03.2019 and on 14.03.2019 the deceased succumbed to death. 3. Memorandum statement of appellant Rahul Sahu was recorded vide Ex.P-1 and on the basis of his memorandum statement, one iron pipe was seized at his instance vide Ex.P-2. Memorandum statement of appellant Ranjeet Sahu was recorded vide Ex.P-3 and on the basis of his memorandum statement, one iron pipe was seized at his instance vide Ex.P-4. After summoning the witnesses, inquest was prepared over the body of the deceased vide Ex.P-6. Postmortem was conducted by Dr.Shiv Narayan Manjhi (PW-3) vide Ex.P-7 and found following injuries:- 1. Scab dry hard form present on left arm medial aspect 02x03 cm. Size. 2. Impacted abrasion with scab present on right side chest interrupted from in area of 05x03 cm. transverse at the level of 2nd & 3rd ribs, another scab at the level of 7th 7 8th ribs size 06x02 cm. transverse, on mid clavicular region 10x05 cm. transverse u/n blackish colour ecchymosis present. 3. Impacted abrasion with scab present on right elbow posterior aspect 05x04 cm. vertical, on left elbow 04x3.5 cm. 4. Impacted abrasion with scab present on back at the level of T11 03x02 cm. vertical, just below angle of scapular region 03x02 cm. 4 5. Impacted abrasion with scab present on right knee anterior aspect 1.5 cm. diameter, on left ankle 02 cm. diameter. 6. Blackish colour ecchymosis present on left frontal eminence 04 cm. diameter area, left parietal region 04x03 cm. Area skull intact. The doctor has opined that death was due to cardio respiratory failure as a result of injuries to the body & its complications (septicemia). Spot map was prepared by the investigating officer vide Ex.P-10. Patwari also prepared spot map vide Ex.P-12. Merg intimation was recorded vide Ex.P-13. FIR was registered vide Ex.P-15. Merg intimation was also recorded vide Ex.P-16. Appellant Ranjeet Sahu was arrested on 7.3.2019 vide arrest memo Ex.P-20 and appellant Rahul Sahu was arrested on 7.3.2019 vide arrest memo Ex.P-21. 4. Statements of the witnesses were recorded under Section 161 of the CrPC and after due investigation, the appellants were charge- sheeted before the ACJM, Dongargarh, who in turn, committed the case to the Court of the Additional Sessions Judge, Dongargarh. The accused / appellants abjured the guilt and entered into defence. 5. In order to bring home the offence, the prosecution examined as many as 18 witnesses and exhibited 23 documents Exs.P-1 to P- 23. Statements of the accused/appellants were recorded under 5 Section 313 of the CrPC in which they denied guilt. However, they examined none in their defence, however, exhibited the statement of Kamlesh Joshi as Ex.D-1. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27.03.2021, convicted the appellants for offence under Sections 302/34 of the IPC and sentenced them for the period as mentioned in opening paragraph of this judgment, against which, theis appeal has been preferred. 7. Mr.B.P.Singh, learned counsel for the appellants submits that learned trial Court has completely failed to consider this fact that according to the eyewitness Kamlesh Joshi (PW-4) the deceased has sustained three injuries which were very simple in nature and the injuries were caused on right hand, back and on legs and in para 4 he has admitted that except this three simple injuries the deceased has not sustained any other injury on any other parts of the body and he has also admitted this fact that at the time of MLC at Government Hospital, Dongargarh the deceased was in conscious state and he was talking frequently without any problem and the MLC which was conducted in the Dongargarh Hospital, all the injuries are simple in nature. He further submits that in para 6 of the statement of Dr.S.Chaudhary (PW-6), he has admitted that the deceased himself has told to the police that he has sustained injuries over right hand and leg and after inspection, he was found that the injured has sustained injury over right elbow as 6 abrasion and no any other injury is found over the body of the deceased. He has also admitted that one habitual drunker can receive such type of abrasion after falling on the ground and Dr.R.K.Patel (PW-15) who was the Assistant Professor of the Medical College, Raipur has stated that he has given treatment along with Dr.C.S.Sharma to the deceased and he has admitted in para 7 that the deceased was habitual drunker and he has also stated that no any injury is found over the external part of the body. He has also admitted this fact that the patient was suffering from Pneumonia and as per his opinion he died due to pneumonia. Dr.Nilesh Gupta (PW-9) has conducted x-ray of the deceased and he has taken x-ray of the deceased on the right elbow and ankle of left leg, chest and abdomen and he has not found any fracture or dislocation, but the autopsy surgeon Dr.Shiv Narayan Manjhi (PW-3) has stated something different in respect of three doctors and he is found the multiple injuries over the body of the deceased which is highly doubtful, but even then the cause of death is not explained as a homicidal. He further submits that deceased was admitted in the hospital in conscious state of mind, but the police did not try to record his dying declaration which is suspicious. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. He relied upon the judgments of the Supreme Court in the matters of Majju and another v. State of M.P. reported in (2001) 9 SCC 449 and 7 Subhash v. State of Uttar Pradesh reported in (2022) 6 SCC 592. 8. On the other hand, Mr.Malay Jain, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that the trial Court has rightly convicted the appellant for offence under Section 302/34 of the IPC and as such, the criminal appeal deserves to be dismissed. 9. We have heard learned appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. In the present case, homicidal death of the deceased has been seriously disputed by learned counsel for the appellants. Dehati nalsi (Ex.P-9) was lodged by Kamlesh Joshi (PW-4) and on that basis FIR was lodged by Kamlesh Joshi which is Ex.P-15. MLC was conducted at Dongargarh Public Health Center where the deceased was found semi conscious and the treating doctor has found that there is scratch on the right elbow and it can be caused by hard and blunt object. MLC (Ex.P-11) is proved by Dr.S.Choudhary (PW-6). Thereafter, the deceased was admitted in Pt. Jawahar Lal Nehru Medical College and Dr.B.R.Ambedkar Memorial Hospital, Raipur on 6.3.2019 where x-ray was done by Dr.Nilesh Gupta (PW-9) and x-ray of right elbow, left ankle, chest and abdomen was done and he has not found any fracture over the said parts of the deceased and he has not conducted x-ray of 8 skull. The treatment was started in Ambedkar Hospital, Raipur by the doctors upto 14.03.2019 and on 14.03.2019 the deceased succumbed to death. As per treating Dr.R.K.Patel (PW-15), the patient was admitted on 6.3.2019 due to assault and aspiration pneumonia and he has given treatment along with Dr.C.S.Sharma and according to discharge registration letter Ex.P-20, CT scan of head was conducted where it is not found that any fracture is there and the total prescription shows that there is no fracture in the head or on parietal region. 11. According to Dr.R.K.Patel (PW-15), the patient was habitual drinker and there is no any external injury found and he was consuming liquor since two years back. The deceased was patient of pneumonia and according to his statement, the cause of death is due to pneumonia. After death, Dr.Shiv Narayan Manjhi (PW-3) has stated that the deceased has sustained six injuries and first time he has mentioned these injuries because of the reason that the earlier doctor who has provided treatment to the patient has not found these six injuries and they have found some abrasion, but not on the head and even then Dr.Shiv Narayan Manjhi (PW-3) in his postmortem report (Ex.P-7) has not stated that there is any fracture over the skull of the deceased and then in the Court statement, he has given the contradictory statement that the deceased has sustained one injury over skull and there is fracture over the skull. The postmortem report of Dr.Shiv Narayan Manjhi (PW-3) has also not stated that it is a case of homicidal 9 death and cause of death according to the postmortem report is due to cardio respiratory failure as a result of injuries to the body and its complication. Thus, the evidence given by this doctor about the fracture on skull is without any base and contrary to the postmortem report. The treating doctor has stated that the injuries are simple in nature and there is no injury and any fracture is found over the head of the deceased. In para 8 of cross- examination, this doctor has stated about injury No.6 that if any person is assaulted by rod then bleeding swelling and scratch on the skin may be occurred, but such type of injury is not found over the head of the deceased and it is also admitted that if a drunken man fell down on hard and blunt object, then such type of injury may occur. 12. The Supreme Court in the matter of Majju (supra) has held as under:- “6. The counsel for the appellants contended that the doctor, who conducted the post mortem examination deposed that there were no incised injuries as stated earlier by another doctor who first examined the deceased Bihari Lal. In our opinion, it is not a serious mistake as there are four eye-witnesses in this case who deposed that appellants Majju alias Nasir and Irshad were having Farsis with them and they inflicted cut injuries on Bihari Lal. PW-8 Dr. Vijay Agrawal conducted the post-mortem and described the injuries in a hap-hazard manner without proper description of the wounds as to whether these were incised injuries or lacerated injuries. But the doctor who examined the 10 injured immediately after the occurrence of the incident, described the nature of injuries and that is fully in conformity with the oral evidence given by the witnesses. The Sessions Judge as well as the High Court has rightly relied on the evidence of the doctor who prepared the wound certificate of the deceased. ” 13. In the present case, conviction is based on the evidence of eyewitness of Kamlesh Joshi (PW-4). According to his Court statement as well as FIR and dehati nalsi, the deceased has sustained injuries over right hand, leg and back and except these injuries no other injury was found over the body of the deceased. In para 5, he has stated that in Dongargarh Government Hospital, the deceased was completely in conscious position and was talking, but the autopsy surgeon has completely ruled out the statement of this witness and speaks totally different version and thus the story of the prosecution seems to be falsified and the benefit of doubt ought to have granted the appellants. 14. The Supreme Court in the matter of Subhash (supra) has held as under:- “19. The entire case of the prosecution, as noticed earlier, was that all the accused who were alleged to be wielding country-made pistols had fired upon the deceased. This case of the prosecution is substantially diluted in the cross-examination of PW 1 as well as in the cross-examination of PW 2. Significantly, the post-mortem report indicates only one firearm injury, which is not consistent with the 11 case of the prosecution that all the accused had fired upon the deceased. That apart, the post-mortem report indicates one injury on the neck of the deceased which again is inconsistent with the deposition of PW 1 and PW 2 that both Shiv Dayal armed with a farsa and Gyanvati (A-6) who was allegedly armed with a knife had assaulted the deceased on the neck.” 15. The prosecution has brought one theory of previous enmity but as per para 5 of the statement of Mukesh Borkar (PW-2), every dispute has settled between both the parties and it was effort of the appellant to get bail and to get the order of acquittal with the help of the appellant. As per memorandum statements of the appellants, two rods were seized but as per paras 51, 53 and 67 these two iron pipes were seized from appellant Rahul Sahu and not from appellant Ranjit and same thing is admitted by Tarun Tembhurkar (PW-1) who is memorandum and seizure witness who has not supported the story of the prosecution completely and these two iron pipes were not sent for FSL. Thus, there is no any connectivity of the appellants in this matter directly or indirectly and there is no cogent and sufficient evidence available on the face of record to convict the appellants in the alleged offence. Moreover, eyewitness has stated other story relating to injury which was denied by the treating doctor as well as and even it is contrary to his own postmortem report and thus, a doubtful story is found on the face of record and thus, the root of the 12 prosecution has completely uprooted or a false story has developed by the prosecution. 16. Considering the postmortem report (Ex.P-7), statement of Dr.Shiv Narayan Manjhi (PW-3), statements of other doctors, the evidence available on record, the statements of the prosecution witnesses, also considering the statement of eyewitness Kamlesh Joshi (PW-4) and other mitigating circumstances, we are of the considered opinion that the prosecution was not able to prove its case beyond reasonable doubt and the trial Court has committed grave legal error in convicting the appellants for offence under Section 302/34 of the IPC. 17.As a fallout and consequence of the aforesaid legal analysis, the criminal appeal filed on behalf of appellants-Rahul Sahu and Ranjeet Sahu is allowed. Impugned judgment dated 27.03.2021 passed by the Additional Sessions Judge, Dongargarh, District Rajnandgaon in Sessions Case No.08/2019 convicting and sentencing the appellants for offence under Section 302/34 is hereby set aside. The accused / appellants are acquitted of the said charge levelled against them. They are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case. 18.The appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned 13 in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 19. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu