1 2025:CGHC:10055-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1144 of 201 9 (Arising out of judgment dated 03.06.2019 passed in Sessions Trial No. 27/2018 by the learned Additional Sessions Judge, Raipur) Suraj Shah @ Suraj Gond S/o Bhimsen Gond aged about 23 years, R/o Diksha Nagar, Near Shivlal Kirana Stores, Gudhiyari, Raipur, Police Station – Gudhiyari, District – Raipur (C.G.). ---Appellant Versus State of Chhattisgarh, Through – The District Magistrate, Raipur, District – Raipur, Chhattisgarh. ---Respondent For Appellant :- Mr. Maneesh Sharma, Advocate. For State-Respondent :- Mr. Amit Buxy, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (28.02.2025) Sanjay K. Agrawal, J. 1. This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated Digitally signed by HEERA LAL SAHU Date: 2025.03.07 17:36:35 +0530 2 03.06.2019, passed by the 2nd Additional Judge to the Court of 1st Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No. 27/2018, whereby the other 5 co- accused persons were acquitted of the charges framed against them and the appellant herein has been convicted for offences punishable under Section 302 of the IPC and Sections 25 & 27 of the Arms Act and sentenced as under:- Conviction Sentence U/s 302 of IPC Imprisonment for life and fine of Rs. 20,000/-, in default of payment of fine amount additional rigorous imprisonment for 1 year. U/s 27 of Arms Act Rigorous imprisonment for 3 years and fine of Rs. 3,000/-, in default of payment of fine amount additional rigorous imprisonment for 3 months. U/s 25 of Arms Act Rigorous imprisonment for 1 year and fine of Rs. 1,000/-, in default of payment of fine amount additional rigorous imprisonment for 1 month. 2. The case of the prosecution, in short, is that on 21.10.2017, at about 4:00 pm, the present appellant along with other 5 co-accused persons assaulted Vijay Mate (now deceased) by sword, by which he suffered grievous injuries and died on the next day i.e. 22.10.2017 at 4:40 am, during the course of treatment, thereby, committed the offences 3 under Section 302 of IPC and Sections 27 and 25 of Arms Act. 3. Further, the case of the prosecution, is that Mohd. Murshid (PW-4) reported the matter to the police, upon which Dehati Nalsi was registered vide Ex. P-6. Thereafter Merg intimation was registered vide Ex.P-27 and FIR was lodged vide Ex.P-26 in which Mohammad Arshad (PW-8) is also said to be the eye witness. Inquest was conducted vide Ex.P-15. The dead body of the deceased was sent for postmortem examination which was conducted by, Dr. S.K. Bagh (PW-6) vide Ex.P-10 in which the cause of death was opined to be cardio-respiratory failure as a result of head injuries and their complications and the nature of death was homicidal. Memorandum statement of the appellant was recorded vide Ex.P-18, pursuant to which sword was recovered vide Ex.P-19. The seized articles were sent for chemical examination to FSL. In the FSL report (Ex.P-35) human blood was found on sword (Article-F). 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and exhibited 35 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the 4 prosecution, pleaded innocence and false implication. However, appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 5. After conclusion of trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offence punishable under Section 302 of I.P.C. & Sections 27and 25 of Arms Act and sentenced him as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant. 6. Learned counsel for the appellant submits that the appellant has been solely convicted on the basis of the sole testimony of PW-12 Puri Goswami and on the same set of facts other 5 co-accused persons were acquitted and other eyewitnesses namely Mohammad Murshid (PW-4), Harish Kumar Yadav (PW-5) and Mohammad Arshad (PW-8) have already been declared hostile as they have not supported the case of the prosecution. PW-12 Sumit Puri Goswami is not reliable and his evidence does not inspire confidence as he did not report the matter to the police, and his name doesn’t find place in the FIR. The FIR was lodged by Mohammad Murshid (PW-4) and the name of Mohammad Arshad (PW-8) finds place as another eye witness. The memorandum statement and seizure memo were made in 5 the police station as per the statement of PW-14 Suraj Rao which are not admissible in evidence. As such, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal. 7. Learned State counsel supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt, and the conviction of the appellant for the offences under Section 302 of I.P.C. and Sections 27 and 25 of Arms Act is well merited, as such, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The first question for consideration is, whether the death of deceased was homicidal in nature? 10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-10 proved by Dr. S.K. Bagh (PW-6) that the death of the deceased was homicidal in nature, which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 6 11.Now, the question would be whether the appellant is the author of the crime in question? 12. The case of the prosecution is that the appellant along with 5 other co-accused persons assaulted Vijay Mate on 21.10.2017 at 4:00 pm, thereafter Vijay Mate (deceased) was hospitalized, wherein he succumbed to the injuries and died on 22.10.2017 at 4:40 am. As per Dehalti Nalsi (Ex.P- 6) lodged by Mohammad Murshid (PW-4), the accused persons were Suraj, Ram and Bathwa residents of Diksha Nagar, Police Station Gudiyari, Raipur. (There are two Suraj in the present matter, one Suraj is present appellant and another Suraj Kosle has already been acquitted by the trial Court). Moreover, in the FIR (Ex.P-26) lodged by Mohammad Murshid (PW-4), Mohammad Arshad (PW-8) was also named as eyewitness, and Sumit Puri Goswami (PW-12) was not named as eyewitness. However, during the trial, Mohammad Murshid (PW-4) and Mohammad Arshad (PW-8) both have turned hostile and have not supported the prosecution case. Even, Sumit Puri Goswami (PW-12) in his 161 statement (Ex.P-25) stated that all the accused persons including the acquitted co-accused persons assaulted Vijay Mate, but in his statement before the Court, he has not made any statement against other acquitted accused persons and confined his statement to 7 the appellant herein to be the author of the crime, yet the trial Court held that he was the injured eyewitness and has supported the case of the prosecution, however, the fact remains that neither the name of Sumit Puri Goswami (PW- 12) find place in the FIR as eyewitness nor he has reported the matter to the police or to any other person, which fact he has also admitted in para 7 of his statement and, clearly stated that he did not inform any of his neighbour about the incident. 13. Though Sumit Puri Goswami (PW-12) was subjected to MLC on the same day vide Ex.P-2 by casualty medical officer at Govt. Hospital, Raipur, but in our considered opinion, he cannot be said to be the sterling witness on whose testimony reliance can be placed for basing the conviction for the offence of murder, for the reasons that: (1) his name was not recorded as eye witness either in the Dehati Nalisi (Ex.P-6) or in the Merg (Ex.P-27) or in the FIR (Ex.P-26), though the name of Mohammad Arshad (PW-8) is there as eyewitness; (2) he did not inform the matter to the police though he had an opportunity to lodge the report; (3) he did not inform the matter to any of his neighbour that the appellant is assailant and he has seen the incident and (4) in his 161 statement (Ex.P-25) he has stated that the present appellant along with all other co-accused persons 8 assaulted the deceased, but in his statement before the Court he only stated about the overt act on the part of the present appellant and there is no reason for not implicating the other co-accused persons in line with the statement under Section 161 of Cr.P.C. Therefore, this witness cannot be said to be an eyewitness of sterling quality on whose sole statement the conviction can rest. 14. Apart from this, pursuant to the memorandum statement (Ex.P-18) of the appellant, the weapon of offence i.e. sword has been seized vide Ex.P-19, but the seizure witness PW- 11 Swapnil Meshram has not supported the case of the prosecution. Though Suraj Rao (PW-14) has supported the case of the prosecution in his examination-in-chief but in his cross-examination he has clearly stated that he has signed on the memorandum statement (Ex.P-18), Seizure memo (Ex.P-19) and Arrest momo (Ex.P-19A) at the Police Station Gudiyari, Raipur and all the said documents were prepared in the Police Station. The Supreme Court in matter of Varun Chaudhary vs. State of Rajasthan1 has held that if the recovery memos were prepared in the police station itself then the same would lose their sanctity and that has been followed in the matter of Mustkeem alias Sirajudeen vs. State of Rajasthan2. As such, in that view 1 2011 (12) SCC 545 2 (2011) 11 SCC 724 9 of the matter, the recovery of the weapon of offence i.e. sword vide Ex.P-19 which was recovered pursuant to the memorandum statement (Ex.P-18) of the appellant cannot be relied upon as the incriminating circumstance to base the conviction of the accused. 15. Lastly, though all the accused persons including the present appellant and other 5 acquitted co-accused persons, were charged for offence under Section 302 read with Section 149 of the IPC, however, the learned trial Court acquitted the other co-accused persons, who were duly charged for the offence punishable under Section 302 read with Section 149 of IPC, and only proceeded to convict the appellant herein under Section 302 of IPC, whereas there is no separate charge against the appellant herein to cause injuries for offence under Section 302 of IPC. 16. In that view of the matter, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellant for offences punishable under Section 302 of IPC and Sections 25 & 27 of Arms Act. 17. Accordingly, we are of the considered opinion that the appellant is entitled for acquittal on the ground of benefit of doubt. The conviction of the appellant for the offences under Section 302 of I.P.C and Sections 25 & 27 of Arms Act is hereby set aside and he is acquitted of the said 10 charges. Since the appellant is in jail from 23.10.2017, we direct that he be released from jail forthwith, if not required in any other case. 18. Accordingly, this Criminal Appeal is allowed. 19. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu