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2012 DIGILAW 253 (CHH)

ASHOK PATEL ALIAS GUDDOO v. STATE OF M. P.

2012-09-27

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 29th of November, 1996 passed in Sessions Trial No. 114/96 by the Sessions Judge, Raipur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- On 26.10.95 at about 1-1.30 p.m., deceased-Mukutram and Manglu Das (PW-1) were returning from Raipur market on their bicycles after purchasing some articles for sale in Madai (a local market). The allegations are that as soon as they reached near Mandi-Naka, the appellant came there and assaulted the deceased by an iron rod. The prosecution came with the case that on account of some previous enmity, the appellant assaulted the deceased by pipe who sustained multiple serious injuries and succumbed to those injuries. Manglu Das (PW-1) lodged First Information Report (F.I.R. - Ex.-P/1) in concerned police station. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/6) to the Panchas and prepared inquest (Ex.-P/7) on the dead body of the deceased. An iron rod was seized from the place of occurrence. Bicycle and other articles were also seized from the place of occurrence by seizure memo Ex.-P/12. The dead body was sent for post-mortem. The Autopsy Surgeon, Dr. Arivind Nerulwar (PW-4), noticed 3 lacerated wounds on the skull of the deceased. The brain matter was coming out with extensive bleeding. He opined that the above injuries were caused by hard and blunt object and the cause of death was coma due to head injury. The post-mortem report is Ex.-P/2. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Raipur vide memo Ex.-P/11 and a report, Ex.-P/15, was received. According to the F.S.L. report blood stains were found over almost all the articles including the rod. Though the articles were sent for Serologist Examination vide Ex.-P/16, but Serologist report could not be filed. The case of the prosecution was based on the evidence of solitary eye-witness namely-Manglu Das (PW-1). The learned Sessions Judge relied on the testimony of Manglu Das (PW-1) and convicted & sentenced the appellant as above. 3. Mrs. Though the articles were sent for Serologist Examination vide Ex.-P/16, but Serologist report could not be filed. The case of the prosecution was based on the evidence of solitary eye-witness namely-Manglu Das (PW-1). The learned Sessions Judge relied on the testimony of Manglu Das (PW-1) and convicted & sentenced the appellant as above. 3. Mrs. Renu Kochar, learned counsel appearing on behalf of the appellant, has argued that Manglu Das (PW-1), the solitary eye-witness, was not reliable; he changed his version at different stages; according to the F.I.R., he was an eye-witness; whereas, according to his court version, he did not see the incident of actual assault; therefore, his evidence was shaky and conviction based on his solitary testimony cannot be sustained. 4. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. Having heard learned counsel for the parties at length, we have perused the records of the sessions case. 6. Manglu Das (PW-1) deposed that on 26.10.95, he along with Shivcharan (PW-2), Baraturam (PW-3) and Mukutram (deceased), had gone to Raipur on their bicycles to purchase articles. They all were returning at about 1-1.30 p.m. In the way Shivcharan (PW-2) and Baraturam (PW-3) went ahead and he was coming with the deceased. He then stopped on the way near Mowa Tank to answer the call of nature and the deceased went ahead on his bicycle. After sometime when he reached near Mandi-Chowk, he found that the deceased was lying on the way on pool of blood. His bicycle was also lying there. The deceased had sustained multiple serious injuries. He saw that the appellant was standing there having a pipe in his hand. He asked the appellant as to how he assaulted the deceased, but the appellant did not reply. The appellant simply went towards village Mowa. He deposed in clear word that he did not see as to who assaulted the deceased, but he had only seen the appellant standing there. He did not see that the appellant came from which place. Thereafter, he stated the villagers that the appellant had assaulted the deceased. Then he lodged the F.I.R. (Ex.-P/1). 7. He deposed in clear word that he did not see as to who assaulted the deceased, but he had only seen the appellant standing there. He did not see that the appellant came from which place. Thereafter, he stated the villagers that the appellant had assaulted the deceased. Then he lodged the F.I.R. (Ex.-P/1). 7. We find that in the F.I.R. (Ex.-P/1), Manglu Das (PW-1) had mentioned in clear words that the appellant had assaulted the deceased by an iron pipe in front of him which he had witnessed. However, in his Court evidence, even in examination-in-chief, he deposed as above that he had not seen the appellant assaulting the deceased and had only seen him standing near the place of occurrence having an iron pipe in his hand. In the F.I.R. (Ex.-P/1), Manglu Das (PW-1) mentioned that he was throughout accompanying the deceased, whereas, in his Court version, he deposed that the deceased had gone ahead to him as he stayed near Mowa Tank to answer the call of nature. That is to say that in his Court evidence, he did not depose that, in fact, he had seen the actual assault allegedly given by the appellant to the deceased. 8. In appreciation of his evidence, we find that he had changed his version at different stages. Even if we take his Court version to be true, he only saw the appellant standing near the place of occurrence, which was a public place, and when he asked the appellant about the incident, the appellant did not mention a single word before him. We are of the view that in light of the above inherent infirmity in the evidence of Manglu Das (PW-1), the sole eye-witness to the incident, the learned Sessions Judge was not justified in relying on his testimony for resting the conviction of the appellant for a heinous offence like murder. 9. Apart from the above evidence of Manglu Das (PW-1), there is no other positive evidence on record to connect the appellant with crime in question. The iron rod was not seized on the discovery made by the appellant. It was seized from the place of occurrence itself. 9. Apart from the above evidence of Manglu Das (PW-1), there is no other positive evidence on record to connect the appellant with crime in question. The iron rod was not seized on the discovery made by the appellant. It was seized from the place of occurrence itself. Moreover, only blood stains were found on the articles seized by the police and it was not established as to whether they were of human blood and further that they were of the blood group of the appellant or the deceased. 10. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the solitary evidence of Manglu Das (PW-1) who changed his version at different stages and ultimately did not testify in the Court that he had seen the appellant assaulting the deceased by iron rod. 11. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.