1 2025:CGHC:4934-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1726 of 2024 Judgment reserved on : 06.01.2025 Judgment delivered on : 28.01.2025 1 - Rajesh Sahu S/o Late Baliram Sahu Aged About 49 Years R/o Village Dindori, P.S. Lalpur, District Mungeli (C.G.) Appellant versus 1 - State Of Chhattisgarh Through the S.H.O. P.S. Lalpur, District Mungeli (C.G.) Respondent For Appellant : Mr. Sunil Pillai, Advocate For Respondent : Mr. Akhilesh Kumar, GA Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Bibhu Datta Guru C A V Judgment Per Rajani Dubey J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 06.08.2024 passed by the learned 1st Additional Session Judge, Mungeli in ST No.49/2011, whereby the appellant has been convicted and sentenced in the following manner:- Digitally signed by RAMAKANT NIRALA 2 Conviction Sentence Section 148 of IPCRI for 3 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 1 month. Section 307/149 of IPC RI for 7 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 6 months. Section 302/149 of IPC Life imprisonment and fine of Rs.500/-. In default of payment of fine amount, additional RI for 6 months. Section 27 of Arms Act RI for 7 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 1 month. 2. The prosecution case, in brief, is that on 17.07.2011, the main accused Rajesh, the present appellant along with other co- accused persons Baliram, Bhupesh, Gayaram, Dayaram and Mahesh Sahu assaulted the deceased Devendra Sahu and the injured Goverdhan with club, stick and shot gun fire on them, as a result of which Devendra Sahu died, whereas Goverdhan received severe injuries, thereafter the matter was reported to the police station concerned and after investigation, the accused persons were arrested, whereas the present appellant and the co-accused Mahesh Sahu were absconding at the time of filing charge sheet by the police before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and sentenced him, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is 3 bad in law as well as facts available on record. There is delay in lodging the FIR and the FIR was lodged against 4 accused persons, whereas final report was filed naming 6 accused persons improving the story. Dehatinalisi (Ex-P/14) is said to have been drawn at school as deposed by K. K. Sahu, Investigating Officer, but according to PW-8, it was drawn at the alleged place of occurrence. There is no memorandum under Section 27 of the Evidence Act with regard to seizure of 12 bore gun at the instance of the co-accused Baliram from his house. The gun was never produced before the Trial Court nor it was sent for conducting forensic test. He further submits that there are material omissions and contradictions in the statements of Goverdhan Sahu (PW-2) and the eye witness Punit Ram Dhruw was also not examined. The wife of Goverdhan namely Anita (PW-1) stated that her husband Goverdhan, Devendra and Komal had gone to the field and on being informed by Punaram (PW-8), she went to the place of occurrence, whereas she did not name Punit Ram in her statement, who according to Goverdhan, was also accompanied Goverdhan. She also did not name the present appellant that he shot gun fire, whereas the Goverdhan stated that the present appellant shot gun fire, as such the statements of both these witnesses are contradictory. Therefore, the appeal deserves to be allowed and the appellant be acquitted of the aforesaid charges. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the 4 matters of Sukhwant Singh vs State of Punjab, reported in (1995) 3 SCC 367, Harbeer Singh vs Sheeshpal and others, reported in (2016) 16 SCC 418, A. T. Mydeen and another vs Assistant Commissioner, Customs Department, reported in (2022) 14 SCC 392, Allarakha Habib Memon etc vs State of Gujarat, reported in 2024 SCC Online SC 1910, Khema @ Khem Chandra and others vs State of Uttar Pradesh, reported in (2023) 10 SCC 451 and P. Sasikumar vs State rep. by the Inspector of Police, reported in 2024 SCC Online 1652. 4. Per contra, learned State counsel supports the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt about the assault by the appellant and other co-accused persons on Goverdhan and Devendra. There are two eye witnesses to the incident namely Goverdhan and Komal Sahu. Learned State counsel further submits that the co- accused persons were convicted by the learned Trial Court vide judgment dated 19.08.2011 and though the appeals bearing CRA Nos.1049/2013 and 1094/2013 were allowed in respect of the co- accused Gayaram, Dayaram and Bhupesh, but the appeal filed by Bali Ram was only partly allowed by this Court and Bali Ram was convicted under Sections 307 & 148 of IPC as well as under Arms Act. The present appellant is the main accused and the appeal is without any merit and is liable to be dismissed. He further submits that the doctor who conducted the postmortem clearly opined that the death of Devendra was due to gun shot 5 injuries. The learned Trial Court minutely appreciated the oral and documentary evidence and rightly convicted the present appellant, hence this appeal is without any merit and is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the charge sheet was filed against the 4 accused persons and at that time, present appellant Rajesh Sahu was absconding. The learned Trial Court conducted trial of 4 accused persons namely Bali Ram, Gayaram, Bhupesh and Dayaram and passed judgment on 19.08.2011 and convicted them under Sections 148, 302 & 307 read with Section 149 of IPC and Bali Ram was convicted also under Section 27 of the Arms Act. In previous trial, the prosecution examined 13 witnesses. and it is clear from para 5 of the impugned judgment that Dr. Rakesh Pandey, Punit Ram, Dr. Vibha Sindoor, Uma Shankar and SI K. K. Sahu (since dead) were not re-examined by the prosecution to prove the guilt of the appellant. 7. Goverdhan Sahu was examined by the prosecution again on 22.07.2023 and he stated that Rajesh snatched the gun from his father Bali Ram and fired on Devendra and Rajesh also made him run and fired gun shot and he was shot in his ears. Thereafter he was taken to Mungeli Hospital, thereafter he was taken to CIMS Hospital, Bilaspur, but treating doctor Vibha 6 Sindoor who was examined as PW-6 in previous trial was not examined by the prosecution against the present appellant. 8. The Hon’ble Apex Court in A. T. Mydeen (supra) after observing many previous judgments held in paras 40, 41, 42, 43, 44 & 45 as under:- “40. Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the cross- examination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals. 41. We cannot proceed on presumption and assume that everything was identical word to word. We are therefore, not inclined to accept the submission of Mr. Banerjee and in fact both the judgments relied upon by Mr. Banerjee having similar facts as the present case lay down the same proposition of law that evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view taken by the Calcutta High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view. 42. The provisions of law and the essence of case- laws, as discussed above, give a clear impression that in the matter of a criminal trial against any 7 accused, the distinctiveness of evidence is paramount in light of accused’s right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader’s presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above. 43. The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co- accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence. 44. It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court’s power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal. 45. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons.” 9. The Hon’ble Apex Court in P. Sasikumar (supra) held in para 15 8 as under:- “15. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases of Jayan v. State of Kerala (2021) 20 SCC 38 and Amrik Singh v. State of Punjab (2022) 9 SCC 402. In Jayan (supra), this Court disbelieved the dock identification of the accused therein by a witness and while doing so, this Court discussed the aspect of TIP in the following words: “It is well settled that TI parade is a part of investigation and it is not a substantive evidence. The question of holding TI parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, TI parade may make the identification of the accused by the witness before the Court trustworthy….” 10. In light of the above, it is clear that in the present case, the treating doctor was not examined by the Trial Court against the present appellant and as per guidelines of the Hon’ble Apex Court, the recording of evidence in the presence of accused or his pleader and the right of accused to cross-examine the witnesses are two important facts along with other facts in criminal trial and the Hon’ble Apex Court clearly held that any accused cannot be convicted on the basis of any evidence which was not recorded in his presence or his pleader’s presence and for which he did not get the opportunity to cross-examine unless the case falls under exception of law, as noted by the Hon’ble Apex Court. Thus, it is clear that treating doctor was not 9 examined against the accused, but the learned Trial Court did not appreciate this fact and convicted the appellant under Section 307 of IPC on the basis of previous statement of the witnesses. 11. Another objection of the appellant is that the seized gun was not sent for forensic examination and no ballistic expert was examined by the prosecution. PW-11 Vishnu Pratap Chouhan stated that the investigation was done by the Station House Officer K. K. Sahu and he identified his signatures and the said K. K. Sahu died at the time of trial. PW-11 Vishnu Pratap Chouhan only identified signatures on documents and stated that 12 bore gun was seized from Bali Ram’ house and seizure memo was prepared by K. K. Sahu vide Ex-P/10. The Bullet was also seized from Goverdhan’s body vide seizure memo (Ex-P/20) by K. K. Sahu. In cross-examination, he admitted that no death certificate of Devendra Sahu was attached in the charge sheet and also stated that he does not know that a single bullet comes out from 12 bore gun. In the accused statement, the accused clearly stated in answer of question Nos.61 & 62 that seized gun was not in running condition so initially the prosecution did not send these gun and bullet for forensic examination and also did not examine any ballistic expert. 12. The Hon’ble Apex Court in Sukhwant Singh (supra) held in para 21 as under:- “21. There is yet another infirmity in this case. We find that whereas an empty had been recovered by PW6, ASI Raghubir Singh from the spot and a pistol 10 alongwith some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and the seized pistol to the ballistic expert for the examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no ex- planation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by fire arms, the opinion of the Ballistic Expert. is of a considerable importance where both the fire arm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the pros- ecution case to a great extent.” 13. As per prosecution, bullet was seized from the body of Goverdhan and gun also was seized from Bali Ram’s house, but the prosecution did not send the empty gun and bullet to the ballistic expert for examination and expert opinion. The Hon’ble Apex Court has clearly held that comparison could have provided link evidence between crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the Trial Court or at the time of appellate stage. 14. Before the learned Trial Court, the prosecution examined Dr. R. S. Ayam (PW-5), who conducted postmortem of Devendra Sahu and opined that death was due to gun shot, but it is clear from the cross-examination of Dr. R. S. Ayam wherein he admitted that where there was a wound/injury in deceased’s head, there was hair and he only assumed the depth of injury by touching his 11 head. It is also clear that the seized gun and bullet was not sent for forensic examination and the comparison was not made, as such there is an omission on the part of the prosecution for which no explanation has been furnished before the Trial Court or before this Court. 15. Goverdhan Sahu (PW-2) is the injured witness and he stated that the accused Rajesh made him run and fired gut shot on him. In the cross-examination, some omissions and contradictions were found but he remained firm that he sustained injuries and he was admitted in the hospital. It is clear that the prosecution did not re- examine the treating doctor, who treated Goverdhan and it is also clear that the prosecution did not send seized gun and bullet for forensic examination. As per Goverdhan (PW-2) and his wife Anita (PW-1), on the date of incident, Goverdhan sustained injuries and the accused Rajesh was present with other co- accused persons, but on technical grounds, it is not proved by the prosecution that Goverdhan Sahu sustained gun shot injuries and the prosecution also failed to prove this fact that the seized gun was in running condition and fire was made from the same. The prosecution has only proved this fact that on the date of incident, Rajesh and other accused persons assaulted Goverdhan with club, stick etc. and he sustained injuries. 16. The learned Trial Court appreciated the oral and documentary evidence but did not consider this fact that some important witnesses were not examined by the prosecution at the time of 12 their trial before the appellant and the appellant did not get opportunity to cross-examine them. The learned Trial Court also did not consider this fact that recording of evidence was not made in the presence of accused or his pleader and secondly opportunity to cross-examine the witness was not given to the appellant. It is also clear that no statement under Section 27 of the Evidence Act was recorded by the prosecution and mere recovery of gun is not sufficient to convict the appellant in this crime. Thus, in light of all these aspects, the prosecution has only proved this fact that on the date of incident, Rajesh and other accused persons assaulted Goverdhan with club, stick etc. and he sustained injuries, but the nature of injury was not proved by the prosecution, as such the offence under Section 302 read with Section 149, Section 307 read with Section 149 of IPC and Section 27 of the Arms Act was not proved by the prosecution and only offence under Section 148 and 324 of IPC is proved against the appellant, as such the finding recorded by the learned Trial Court is not sustainable. 17. Consequently, the appellant is convicted under Sections 324 & 148 of IPC and is sentenced to undergo RI for 3 years. 18. The appellant is in jail since 03.02.2023, as such after setting off the period of detention undergone by the appellant against the sentence of imprisonment, the remaining jail sentence shall be served by the appellant. 19. In the result, the appeal is partly allowed. The impugned 13 judgment of conviction and order of sentence is modified. 20. The seized gun will be sent to District Magistrate for disposal according to law. 21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- Rajani Dubey Bibhu Datta Guru Judge Judge Nirala