Mohd.Shakil Khan v. State Of Chhattisgarh
@ "AER,"
HIGH COURT OF CHHATTISGARH BILASPUR TryW (IRA No. 56 of 2006 - Mohd.Shakil Khan, 3/0 Gaffur Khan, aged about 25 years, R/o 7i Village Navapara Durga Chowk, Balodabazar, Police StationBaloda Bazar, Distt. Raiéur (CG) ---- Appellant
Versus
'- State Of Chhattisgarh Through Station House Officer, Police <§iation - Baloda Bazar, Distt.. Raipur (CG) ---- Respondent M Shri YC Sharma, Advocate.
For Appeilant v :
Shri Neeraj Mehta, Panel Lawyer.
For Respondent/State Hon'ble Shri Justice Pritinker Diwaker New:
Hon'bie Shri Justice R.C.S. Samant Judgment On Board By Justice Pritinker Diwaker 02/11/2016 This appeal arises out judgment conviction order sentence dated 27.12.2005 passed First Additional Sessions Judge, Baloda Bazar in ST No.180/2005 convicting the appellant under Section of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/- with default stipulation.
02. As per the prosecution case, on 10.2.2005 at about 10.30 pm there was some quarrel between deceased namely Kishore Kumar Manglani near Sharab Bhatti (liquor shop) it
alleged that the appeHant caused injury on the neck of the deceased by liquor bottle.
Injured Kishore Manglani was immediately taken to Govt. Hospital, Baloda Bazar where he was attended by PW-9 Dr. RS Tiwari considering nature injuries, he was referred Medical College, Raipur, however, there he succumbed injuries.
In the meanwhile, immediately after the incident at 11.15 pm FIR (Ex.P/1) was lodged by PW-1 Abid Khan against the appellant under Section 307 of IPC. After death of the deceased, based on information given by ward boy Shyamlal, merg intimation EXP/16 was recorded 11.2.2Q0§.
Inquest (unexhibited) was performed the body of the deceased and thereafter, the body was sent for postmortem which was conducted PW-13 Dr.
Shivnarayan Manjhi vide Ex.P/21 t 11.2.2005. The autopsy surgeon noticed five injuries on neck, left arm right elbow and in his opinion, the cause of death was shock and hemorrhage as a result of neck injury. After investigation, charge sheet was filed against the appellant and the trial Court framed charge under :'
Section 302 of IPC against him.
03.
So hold accused/appellant guilty, examined witnesses all.
Statement accused was also recorded under Section Cr.P.C.
which he denied circumstances appearing against him in the prosecution case, pleaded innocence and false implication.
O4. The trial Court after hearing counsel for the respective parties and considering material available record, impugned judgment convicted and sentenced the appellant as mentioned above.
05. Counsel for the appellants submits as under: - that all the four eyewitness to the incident i.e. PW-1 Abid Khan, PW-2 Sharif Khan, PW-3 Dhaniram Sahu PW-7 Rajesh Sahu have not supported the prosecution case and have been declared hostile.
- other piece evidence against disclosure statement (EXP/5), based which T-shirt baniyan were seized vide 'Ex.P/6, which were subsequently mend to be stained with blood as per FSL report (unexhibited), but absence serological report confirming origin bl0%d, blood'group etc, said circumstance loses its s significance such, cannot be taken an incriminating circumstance against the appellant, fact, there no legally admissible evidence which can be / made basis of conviction of the appellant.
06.
On other hand, State counsel supporting impugned judgment has submitted that judgment impugned strictly '
accordance with law and there is no illegality or infirmity in it warranting interference by this Court.
07. Heard counsel for the respective parties and perused the material on record.
O8.
PW-1 Abid Khan, PW-Z Sharif Khan, PW~3 Dhaniram Sahu PW-7 Rajesh Sahu, eyewitness to the incident, have not supported the case have been declared hostile.
Though per
y; ,w-f statement of PW-1 and PW-2, presence of- the appeHa'nt at the place of occurrence has been established but merely on that basis it cannot be held that it is the appellant who caused injuries to the deceased. 09.
PW-4 Arjun Das and PW-5 Ajay Kumar Sharma are witnesses to seizure Ex.P/10 whereby clothes of the deceased were seized. PW-6 Babulai is a witness to seizure Ex.P/3 whereby certain articles from the place of occurrence were seized. PW-8 Chandrapal Manglani, brother r of the deceased, is a hearsay'witness. PW-9 Dr. RS Tiwari, Assistant Surge'Eri, attended the deceased Kishore Kumar when he was brought Govt.
Hospital, Baloda Bazar injured condition, noticed incised wound on left side'of neck caused by sharp edged weapon and then referred him to Medical College, Raipur. PW-10 Tejpal Dubey, Patwari, prepared spot map EXP/2.
PW-11 Gopinath Sand conducted major part of investigation. PW-12 GS Sahu and PW-15~ Bhushan Lal Sahu helped in the investigation. PW-14 Rajesh Parwani, witness of inquest, has merely proved receipt notice of inquest EXP/23.
PW-13 Dr.
Shivnarayan Manjhi conducted postmortem body deceased on 11.2.2005 vide EXP/21 and noticed following injuries: (i) surgically stitched wound on left side of neck, (ii) reddish colour contusion on left arm lower 1/3rd part, (iii) contusion present same as injury No.(ii), (iv) red colour contusion on right elbow anterior aspect, (v) red colour contusion on right arm 2 cm above from elbowjoint. All injuries show red colour ecchymosis underneath skin.
ln opinion, the cause of death was shock and hemorrhage as a result of
neck injury.
10.
As per FSL report (unexhibited), in Article F & G i.e. T-shirt and vest of the appellant, bloodstains were found.
However, there no serological report prove that the said blood was human blood or group of the same.
11.
Close scrutiny of the evidence makes it clear that eyewitnesses to the incident namely PW-1 Abid Khan, who was lodger of FIR, PW-Z Sharif Khan, PW-3 Dhaniram Sahu and PW-7 Rajesh Sahu, have not 1:0;
suppo'rtfed case have been declared hostile.
Though based on the memorandum of the appellant EXP/5, his T-shirt 's and vest were seized (EXP/6) and the same were found to be stained with blood per FSL report (unexhibited), however, there no serological report establish that the blood found these articles sK'
was human blood further, it was blood group of the;
\_ :m deceased. True it is that the death of the deceased was as a result of injury sustained by him on his neck but the prosecution has failed prove leading any cogent reliable evidence that it was appellant who caused that injury to the deceased.
Thus, considering the nature and quality of evidence adduced by the prosecution, we are of the firm view that the prosecution has not been successful in proving the guilt of the appetlant beyond the shadow of reasonable doubt. This being position, entitled be acquitted charge by extending him benefit of doubt.
12.
ln the result, the appeal allowed. The impugned judgment hereby set aside and acquitted of the charge under
\(y Section 302 of IPC by giving him benefit doubt. He is reported to be on bail, therefore, bail bonds stand discharged he need sdrrender, J M/x , i Sd/- i j / SdfEV (Pritinker Diwaker) (R.C.S. Sémant) Judge Judge