1 CRA Nos.1716/2024 and 1970/2024 2025:CGHC:32886-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1716 of 2024 Tikamchand Thakur S/o Chandra Kumar Thakur Aged About 22 Years R/o Apapura, Police Station, Durg, District- Durg, Chhattisgarh. --- Appellant versus State Of Chhattisgarh Through S.H.O. Durg Kotwali, District- Durg, Chhattisgarh. --- Respondent CRA No. 1970 of 2024 Ajju @ Azhar Khan S/o Shubhan Khan Aged About 26 Years R/o Apapura Locality Near Bjp Office, P.S. Durg District Durg Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through Station House Officer, P.S. Durg Kotwali District Durg Chhattisgarh ... Respondent ---------------------------------------------------------------------------------------- For Respective Appellants : Mr. B.P. Singh and Mr. Barun Kumar Chakrabarty, Advocates For Respondent-State : Mr. Sangharsh Pandey, G.A. ----------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.07.17 10:43:00 +0530 2 CRA Nos.1716/2024 and 1970/2024 Per Bibhu Datta Guru, Judge 15.07.2025 1. Since both the above appeals arising out of same Sessions Trial, therefore, they are being considered and decided by this common order. 2. These criminal appeals filed by the appellants-accused under Section 415(2) of B.N.S.S. is directed against the impugned judgment of conviction and order of sentence dated 14/08/2024, passed by the learned Additional Sessions Judge, Durg, District: Durg (C.G.) in Sessions Case No. 92/2021, whereby the appellants-accused have been convicted and sentenced as under:- Conviction Sentence Under Section 302/34 of the IPC Life imprisonment & fine of Rs.1000/-, in default, additional R.I. for 3 months. 3. Facts of the case, in brief, is that on 14.08.2020, complainant Ananda Kundey had orally reported that in the evening, he was in Siddhartha's city and at about 06:30 p.m. Anshu Samudrey (PW- 1) had informed him that beside BJP office, near Shiva temple's platform, Ajju @ Azhar Khan/accused had assaulted Siddhartha Samudrey (deceased) by means of tangiya (axe) and Tikamchand Thakur/accused had also assaulted him with hands and fist as well as by wooden bat, due to which, the deceased lying down and blood was oozing out from his body. Thereafter, 3 CRA Nos.1716/2024 and 1970/2024 the complainant along with his mother Uma Bai, sister Jainam and Anshu Samudrey, reached the spot near BJP office and had seen there that blood was scattered in front of Shiva temple's platform, however, Siddhartha Samudrey/deceased was already taken to the Durg Hospital and was referred to Shankracharya Hospital and during treatment, Siddharth Samudrey died. Subsequently, FIR vide Ex.P-28 was registered against the appellants/accused. Spot map was prepared vide Ex.P-21. After due investigation, police arrested the appellants. Vide Ex.P-12 & 13. Memorandum statements of appellants were recorded vide Exs.P-6 and P-8. On the basis of memorandum statement of appellants, weapon used in crime i.e. Tangia(axe) and wooden bat were seized vide Ex.P-7 and Ex.P-9 and sent for chemical examination to FSL. The dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P-14), Dr. M. Nirala (PW-16) opined that the cause of death was cardio-respiratory failure as a result of head injury and stab injury to Lt-lung and the nature of death is homicidal. After completing the investigation, the final report was prepared. 4. The prosecution in order to prove its case examined as many as 17 witnesses and exhibited 38 documents. Statement of the appellants under Section 313 of Cr.P.C. were recorded wherein they have pleaded their innocence and false implication in the matter. In their defence, D/1 to D/4 have been examined. 4 CRA Nos.1716/2024 and 1970/2024 5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants herein for the aforementioned offence and sentenced them as mentioned herein-above against which these appeals have been preferred by the appellants-accused herein questioning the impugned judgment of conviction and order of sentence. 6. (a) Learned counsel for the appellants would submit that the appellants have been falsely implicated in the present case. Learned counsel would submit that albeit, as per the prosecution, Anshu Samudre(PW-1) and Kunal Kanhaiya(PW-3) are the eye witnesses, but the same is not correct because PW-1 in cross- examination has accepted the fact that he has not seen the incident and at the same time PW-3 is also not an eye witnesses because in the 161 statement he has stated before the Police that though he has not witnessed the incident but the same has been intimated to him by PW-1. Thus, the evidence adduced by the PW-1, PW-3 cannot be treated as eye witnesses, as they are not reliable witnesses. (b) Learned counsel would further submit that the statements of all the prosecution witnesses are full of contradiction and omissions, hence, no implicit reliance could be placed on such kind of testimony. The testimony of prosecution witnesses could not be relied upon in the facts and circumstances of the present 5 CRA Nos.1716/2024 and 1970/2024 case. Moreover, the prosecution has failed to prove the necessary ingredients of the offences beyond all reasonable doubt against the appellants. Hence, looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellants and they have been falsely implicated in the present case. As such, the criminal appeals deserve to be allowed and the impugned judgment deserves to be set aside. (c) To buttress his contention, learned counsel would place reliance upon the decisions rendered by the Supreme Court in the matters of Raja Naykar v State of Chhattisgarh (2024) 3 SCC 481, Ashok v State of Uttar Pradesh (2025) 2 SCC 381, Sonvir alias Somvir v State (NCT of Delhi) (2018) 8 SCC 24 and Chattar Singh v State of Punjab (1952) 2 SCC 189. 7. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for the aforesaid offence, thus, the present appeals deserve to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first and foremost question is as to whether the death of the 6 CRA Nos.1716/2024 and 1970/2024 deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record and particularly considering the postmortem report (Ex.P/14) which is duly proved by the evidence of Dr. M. Nirala (PW-16) and found several injuries on the body of the deceased i.e. swelling on eye lips, 34 c.m. length on left side of zygomatic part on left frontal area, 12 c.m. length on parietal part of left side and 4 c.m. length at pariotic region with stitched wound, abrasion mark 3 c.m. below from chin of 3 c.m. X 2 c.m. stab injury fracture on mid part of back, situated on 12 c.m. below from mid part back of neck and 2 c.m. lateral from spinal cord with side 4 c.m. X 1.5 c.m. X 5 c.m. The Doctor has also found injuries upon internal examination hematoma and ecchymosis fracture was found. Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. M. Nirala (PW-16) that the nature of death of deceased was homicidal in nature, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirmed the said finding. 10. Now the next question would be whether the accused-appellants herein are the author of the crime in question ? 11. Anshu Samudrey (PW-1), stated in his evidence that he knows the deceased because he is a resident of his locality. On 14/10/2020, 7 CRA Nos.1716/2024 and 1970/2024 when he came outside from the Municipal Corporation Sulabh(public toilet) near the BJP office, he saw that Siddharth alias Ajju/deceased was sitting on his scooty near the Shiv Mandir platform, at that time, Ajju alias Azhar Khan/appellant assaulted the deceased with a tangia(axe) due to which, the deceased fell down and thereafter, Tikamchand/appellant also assaulted the deceased by wooden bat. After seeing the incident, he ran from the spot and told his uncle Kunal and also told the incident to his grandmother Uma and informed Anand Funde about the incident and all of them reached the spot, but the deceased was not there, only a shoe was lying there. Later, they came to know that the deceased was taken to the hospital for treatment. 12. Kunal Kanhiaya(PW-3) stated that he knows the appellants. On 14 August, 2020. Accused Azhar Khan kept an axe in his hand and accused Tikamchand kept a wooden bat with nails in it. At that time, he saw that both the accused were assaulting the deceased Siddharth Samudra by means of axe and wooden bat, due to which, the deceased fell down and blood was oozing out from his head. When he reached near the spot, both the appellants saw him and fled away from the spot. Thereafter, he picked the deceased Siddharth Samudra and took him in auto to Government Hospital, Durg. After initial treatment, he was referred to D.K. Hospital in Raipur, where he died during treatment. 13. Uma Bai (PW-2),mother of deceased stated the appellants are the friends of her son/deceased and in para 4 of her evidence, she 8 CRA Nos.1716/2024 and 1970/2024 deposed that after received a call from accused Ajju alias Azhar Khan, her son/deceased went to meet him. At around 05:30 pm, Rajesh Bhujji came home and told her that her son/deceased was killed by three boys Ajju alias Azhar Khan, Majju and Tikam near the Shiv temple and fled away from the spot. Thereafter, she immediately went to the spot and on reaching there, she came to know that Kunal had taken her son to Durg Government Hospital. She immediately went to the government hospital where she saw that her son was soaked in blood, blood was oozing out from his head. Then, the deceased was referred to Shankaracharya Hospital and to Hospital at Raipur, where her son died. 14. Dr. M. Nirala (PW-16), who conducted the postmortem of the deceased stated that in an external examination of the body, deceased was having swelling face, hazitations mark on left forearm with old wound marks on chest and stomach. Deceased was having swelling on eye lips, 34 c.m. length on left side of zygomatic part on left frontal area, 12 c.m. length on parietal part of left side and 4 c.m. length at pariotic region with stitched wound, abrasion mark 3 c.m. below from chin of 3 c.m. X 2 c.m. stab injury fracture on mid part of back, situated on 12 c.m. below from mid part back of neck and 2 c.m. lateral from spinal cord with side 4 c.m. X 1.5 c.m. X 5 c.m. He has further deposed that upon internal examination hematoma and ecchymosis fracture was found on all over under scalp, craniotomy operation of size 16 c.m. X 12 c.m. done on left side frontotemporal or pterional bone, linear fracture on left side, mid parietal to right side 9 CRA Nos.1716/2024 and 1970/2024 parietal bone of 11 c.m. long, left parietal lobe lacerated wound of size 8 X 6 c.m., lacerated wound in left parietal temporal lobes, fracture on all over mind and cerebellum and on interior and middle cranial fossa fracture. He has also deposed that piercing stab wound on left side middle lobe 2 c.m. X 0.5 c.m. X 1 c.m. was also found. As per his postmortem report, reason for the death of the deceased was due to cardio respiratory failure as a result of head injury and stab injury to left lung and thereby nature of the death is homicidal in nature and duration of death was within 24 hours, prior to postmortem. 15. In the FSL report vide Ex.P-35, the same human blood of "B group" was found on the tangia (axe), full shirt of the deceased, T-shirt of accused Ajju alias Azhar Khan and T-shirt of accused Tikamchand Thakur, which were seized on the basis of memorandum of appellants. 16. Anshu Samudre (PW-1), in examination-in-chief has categorically stated that he has witnessed the incident when the accused persons assaulted the deceased. Kunal Kanhaiya(PW-3) has also stated in his examination-in-chief that he has witnessed the incident. At para 16 of the evidence, this witness denied the version recorded by the police in his 161 statement(Ex.D-2) from A to A. Hence, it is crystal clear that Anshu Samudre (PW-1) and Kunal Kanhaiya(PW-3) are the eye witnesses in the instant case. 10 CRA Nos.1716/2024 and 1970/2024 17. From bare perusal of above evidence, it is manifest that the appellants have assaulted the deceased with axe and wooden bat, which was having nail type bolt and when deceased had fallen on the ground, they had assaulted him with kicks and punches, which also attributes their criminal intent and knowledge to commit the death of the deceased in any circumstances such brutal manner in which shows their criminality and does not entitled them to take any kind of leniency with them. Apart from that, the injuries suffered by the deceased were grievous in nature, which was assaulted by the appellants by means of axe and wooden bat; cause of death was cardio-respiratory failure as a result of head injury and stab injury to Lt-lung. In FSL report, blood stains were found in the clothes of the appellants and the weapons used in the crime i.e. axe and wooden bat. 18. Since the prosecution witnesses namely; PW-1 Anshu Samudre and PW-3 Kunal Kanhaiya have categorically stated that they witnessed the crime while the accused assaulting the deceased and the medical evidence also completely proved the death of deceased as homicidal, the case laws relied by the appellants would not applicable to the facts of the present case. 19. In view of foregoing discussion, the finding recorded by the trial Court that the appellants have caused grievous injuries upon the deceased, due to which, he died, is based on evidence available on record is just and proper and accordingly, we hereby affirm the 11 CRA Nos.1716/2024 and 1970/2024 finding recorded by the learned trial Court that the appellants- accused are the author of the crime in question. Hence, we are the of the considered opinion that the learned trial Court has rightly convicted the appellants for offence mentioned in para 2 of this judgment. 20. The appellants are stated to be in jail and they shall serve out the remaining period of jail sentence as awarded to them by the learned trial Court. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing the jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 21. Accordingly, both the Criminal Appeals are dismissed. 22. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court for information and necessary action. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Amardeep/Shoaib0