State of Chhattisgarh v. Ghanshyam @ Narayan

Appearance: Mr. Akhil Mishra, Deputy Govemmert Advocate for the Petitioner/ State. ORAL ORDER (03.10.2012)

The State is seeking leave to file an appeal against judgment of acquittal dated 27-6-2012 passed in Se^ions Trial No.67/2010 by the First Additional Sessions Judge, Durg, District Durg (C.G.). By the Impugned judgment, the respondent has been acquitted of the charge framed under Section 302 of the IncNan Penal Code.

Deceased - Vipul Kumar Tamrakar was friend of re^pondent/accused. On 31-3-2010, dead body of the deceased was found on the side of a public road. The deceased had sustained multipte serious injuries. Durga Prasad Tamrakar (PW-6) lodged '-^ ., ••; W.'-,-:-..'""-'y^ 'w&.-:Sr\ "^^s"5.SS'-^ S 'vl^^y ' '^ ^ .'? B) ^ %. ^. '^ merg intimation (Ex.P-12) in Police Station; Dhamdha. The tnvestigating Offlcer reached to the place of occurrence, gave ncrtlce (Ex. P-5) to the Panchas and prepared Inquest (Ex. P-6) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Dhamdha for post mortem examination. The post mortem examination was conducted by Dr; SanjeevKumar Agrawal (PW-2), in which, he found multiple serious injuries on the dead body of the deceased. Various bones inclyding ribs were fractured. The pieces of ribs had pierced into lungs. Liver and lungs were ruptured. The Autopsy Surgeon opined that the death was homicidat in nature on account of above injuries sustained by the deceased. In further investigation, the respondent was teken into custody and his memorandum statement (Ex. P-8) under Seetion 27 of the Evidence Act was recorded and a tractor and trolley were selzed at his instance vide seizure memo (Ex.P-9). The prosecution came with the case that in the intervenlng nlght of 30-3-2010 and 31^3-2010, the deceased was traveling in the tractor of the respondent; respondent threw him from the tractor and thereafter he ran over the trolley over the deceased. The case of the prosecution was based on the evldence of last seen. The learned Sessions Judge found that the evidence of last seen was not proved and it was also not proved that the deceased had died homteidal death, therefore, the respondent was entitled for acquittal. The respondent, thus, was acquitted of the charge framed against him. -,-»•» 3

Mr. Akhil Mishra, Deputy Govemment Advoeate for petitioner/ State, argued that the leamed Sessions Judge fefl error in not betievlng e evidence of last seen. He also argued that it was proved by the evldence of Autopsy Surgeon that deceased had died homicidal death, therefore, the acquittai of the respondent vitlates.

Having heard learned counsel for the petitjoner/State, wie have perused the records of the Session's case annexed with the teave petition.

Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on eircumstantial evidence. The main circumstance which the prosecution set-forth w^ that the deceased was lastly seen live in the company of the respondent in the night of 30-3-2010. Nandlal (PW-1) was the witness of last seen. Nandtat (PW-1) deposed that he was told by Channulal (PW-8) that the deceased was in the company of the respondent in the fateful night. Channulal (PW-8) turned hostile. He did not support the case the prosecution. So far as evidence of Nandlal (PW-1) concerned, his evidence of last seen would be heacsays as according to him he was told by Chhannulal (PW-8). WheR Chhannulat (PW-8) hlmself did not support the case of prosecution, there would be no weight age of the evidence of Nandtat (RA/-1). The tearned Sessions Judge has appreciated the evktence of above two witnesses of last seen and has heU that tt was not 4 proved that the deceased was seen in the company of the appellant in the fateful night.

We have gone through the evidence of these witnesses. We are of the view that the leamed Sesstons Judge was fulty justified in holding that the prosecution could not prove that the deceased was lastly seen in the company of the respondent in the fateful night.

The learned Sessions Judge has obseryed in paragr^)h 1§of the impugned judgment that the Autopsy Surgeon admttted in his cross-examlnation that the death of the deceased may be accidentat also, therefore, it was held that the prosecution could not prove beyond all reasonabte doubts that the deceased died homlcklal death. It was also taken as an important feature of the proseciAion case.

Though tractor and trotley were shown to be seized on the discovery statement made by the respondent, but ttwas not on record as to how the seizure of tractor and trolley was Incriminathg against the respondent. The prosecution could not file any document to show that either the tires of the tractor or trolley were ^ained with blood, much less human blood of the blood group of the deceased. The leamed Sessions Judge, therefore, held that the circumstance of seizure of tractor and trolley was also not incriminating against the respondent.

We have gone through the impugned judgment as ateo e records of the Session's case (filed along with the leavepetltion). We do not find any compelling reason to intetfere wfth the above judgment of acquittal passed by the tearned Sessions Court. Weare of the view that in the above facts and circumstances of the case, the learned Sessions Judge was fully justffled in passlng the judgment ofacquittat of the respondent.

The Leave petition, therefore, falls and the sam®is disiaissed summarily. Sd/- Sunil Kumar Sinha Jiidse Sd/- R.S. Sharma Judge