1 2025:CGHC:36465-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 93 of 2018 State Of Chhattisgarh Through- Police Station- City Kotwali, Balodabazar, District- Balodabazar-Bhatapara (CG) ... Appellant versus 1 - Sudhir Kumar Upadhyay S/o Brijmohan Upadhyay Aged About 34 Years R/o- Gahmar, Thana- Gahmar, District- Ganjipur (U.P.), Presently Residing At Chhuiha, Police Station Balodabazar, District- Raipur At Present District- Balodabazar- Bhatapara (CG) 2 - Vinay Kumar Manjhi S/o Ramdas Manjhi Aged About 35 Years R/o- Korna, Thana- Duldula, District- Jashpur, Presently Residing At Nandini Mines Quarter No. 03 A Street No. 34 Thana Nandini, District- Durg (CG) ---- Respondents For Appellant/State : Shri Sachhidanand Yadav, Panel Lawyer For Respondents : Shri Anil Singh Rajput, Advocate Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board 28.07.2025 Per Sanjay S. Agrawal, J. 1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.07.29 17:17:41 +0530 2 and propriety of the judgment dated 17.10.2017, passed by the First Additional Sessions Judge, Balodabazar (CG) in Sessions Trial No.30/2013, whereby, the respondents have been acquitted with regard to the offence punishable under Section 302/34 of IPC. 2. Briefly stated, the facts of the case are that on 28.04.2003, a missing report (Ex.P-14/C) was lodged by one Chhotelal, before the Police Station, Balodabazar, stating therein, that when he returned to home at about 8-8.30 pm, it was informed by his wife that his son- Mahendra Kumar Singh, (since deceased), had gone with respondent No.1-Sudhir Kumar, but did not return and, on 30.04.2003, one Govardhan Das informed the concerned Police that a dead body is lying near the College ground and based upon the alleged information, a dead body was recovered, which was found to be of said Mahendra Kumar Singh, and, an FIR (Ex.P-16) was thereafter registered against the respondents for the offence punishable under Section 302/34 of IPC in connection with Crime No.76/2003 and, according to it, the deceased who was taken on the Scooter by the respondents, was witnessed by one Bharti Sharma, Devendra Singh, the brother; and the mother of the deceased. During investigation, a black coloured electric wire plus burnt pieces of two cigarettes were seized vide Ex.P-6 from respondent No.1- Sudhir Kumar on 01.05.2003 in presence of two witnesses, namely, Sanket Shukla and Devendra Kumar based upon his disclosure statement (Ex.P-5), while one LML Vespa Scooter, bearing registration No. CG 07 ZE 1289 along with its RC book and insurance papers, were recovered from the respondent No.2- Vinay Kumar, vide seizure memo (Ex.P-7). Inquest of the dead body was conducted vide Ex.P-4 and was 3 sent for autopsy, which was conducted by Dr. R.S. Tiwari (PW-6), who vide his report (Ex. P-8), opined the cause of death to be asphyxia, occurred due to throttling and after completing the usual investigation, the charge-sheet was submitted before the Judicial Magistrate First Class, Balodabazar against the respondents for the offence punishable under Section 302/34 of IPC and, the matter was thereafter committed to the concerned trial Court, where the charge mentioned herein-above was framed and, the charge so framed, was denied by the respondents and claimed to be tried. 3. The trial Court, after considering the evidence led by the parties, arrived at a conclusion that the respondents are not involved in connection with the alleged crime and, accordingly, they have been acquitted from the commission of the alleged crime and, being aggrieved, the instant appeal has been preferred by the appellant/State. 4. Learned counsel appearing for the appellant/ State submits that the finding recorded by the trial Court acquitting the respondents from the commission of the alleged crime, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution, particularly, the statement of the mother of the deceased, namely, Shanti Bai (PW-11) and, one Bharti Shama (PW-12), have not been scanned in its proper manner and thereby, erred in acquitting them, as such. 5. On the other hand, learned counsel appearing for the 4 respondents has supported the impugned judgment of acquittal, as passed by the trial Court. 6. We have heard learned counsel appearing for the parties and perused the entire record carefully. 7. From perusal of the record, it appears that the respondents have been charge-sheeted with regard to the offence punishable under Section 302/34 of IPC for the incident occurred on 27.04.2003 when the deceased was found to be seen along with them. It is alleged by the prosecution that the deceased was seen with the respondents in the evening of the said fateful day by one Bharti Sharma (PW-12), Devendra Kumar, the brother and the mother of the deceased, namely, Shanti Bai (PW-11). 8. According to the mother of the deceased, namely, Shanti Bai (PW-11), it appears that on the said fateful day, i.e. 27.04.2003 around 7.00 pm, the respondent No.1- Sudhir Kumar and his friend Vinay Kumar came to her house on a Scooter and took her son towards the “Balodabazar Basti”. She deposed further that when her husband- Chhotelal came to house in the night at 8.00 pm and when he enquired about the son, it was informed by her that he (Mahendra Kumar Singh) had gone with the respondents on their Scooter towards the “Balodabazar Basti” and, it appears further from her testimony that she has seen the respondent No.1- Sudhir Kumar on the said day when she went to his house. 9. Bharti Sharma (PW-12) has stated in her evidence that on the 5 said fateful day, i.e. 27.04.2003, she was in the house of the deceased- Mahendra Kumar Singh and at that particular time, the respondents, Sudhir Kumar and Vinay Kumar came and took the deceased- Mahendra Kumar Singh along with them on their Scooter and since then, she has not seen the deceased- Mahendra Kumar Singh and came to know on 30th April, 2003 that he has died. Insofar as Devendra Kumar, the brother of the deceased, is concerned, who has also seen his brother with the respondents, as per FIR (Ex. P-16), but was not examined by the prosecution. 10. Although, it was stated by the aforesaid witnesses that on the said fateful day, the deceased had gone with the respondents in the evening around 7.00 pm and the deceased’s father, namely, Chhotelal was also informed by his wife as such when he came to home at 8.00 pm and enquired about his said son. However, the missing report (Ex.P-14/C), lodged by him on 30.04.2003 would reveal the fact that he was informed by his wife that his deceased- son had gone with the respondent No.1- Sudhir Kumar alone. There is, thus, disparity in her (PW-11) statement. 11. It is to be seen further that in order to attribute the respondents for the commission of the alleged crime, a black coloured electric wire was recovered from the respondent No.1 vide Ex.P-6 in presence of two witnesses, namely, Sanket Shukla and one Devendra Kumar, but Sanket Shukla, who was examined as PW-2, has, however, not supported the alleged seizure. Besides, Dr. R.S. Tiwari (PW-6), who examined the alleged wire, has stated specifically at para 12 of his 6 testimony that the alleged injury on the neck of the deceased cannot be caused by it. The prosecution has, thus, failed to produce any cogent and reliable evidencep; so as to hold that the respondents are involved in connection with the alleged crime and, the trial Court has, therefore, not committed any illegality in acquitting the respondents from the commission of the alleged crime. 12. The appeal being devoid of merits is, accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge sunita