Allowed

Bhuneshwar Prasad @ Mithun Gupta v. State of Chhattisgarh

Chhattisgarh HC4 Sept 2024CRA/1609/2018

Case brief

AI extract

What is this about?

Chhattisgarh HC set aside convictions for murder and attempted murder in an SC/ST atrocity case. The Court acquitted appellants due to lack of reliable eyewitness identification under dark conditions, insufficient forensic evidence of human blood on recovered weapons, and absence of specific charge under Section 149 IPC.

What did the court decide?

Appeals allowed; convictions and sentences for Section 148, 302, and 307 IPC set aside; appellants acquitted on basis of benefit of doubt and directed for release from jail.

Bhuneshwar Prasad @ Mithun Gupta Vs State… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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2024:CGHC:34465-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPELLATE JURISDICTION

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[Judgment reserved on : 23.08.2024]

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[Judgment delivered on : 05.09.2024]

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CRIMINAL APPEAL NO. 1609 OF 2018

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Bhuneshwar Prasad @ Mithun Gupta, S/o Kamlesh Gupta, aged about 25 years, R/o Vidyut Nagar Tifra, P.S. Sirgitti, Bilaspur, District Bilaspur (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Sirgitti, District Bilaspur (C.G.)

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... Respondent(s)

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And

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CRIMINAL APPEAL NO. 1617 OF 2018

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1. Pramod Nirmalkar, S/o Bisruram Nirmalkar, aged about 25 years,

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2. Navin Nirmalkar, S/o Bisruram Nirmalkar, aged about 23 years,

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3. Taran Nirmalkar, S/o Bisruram Nirmalkar, aged about 20 years,

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All R/o Village Vidyut Nagar Tifra, Police Station Sirgitti, District Bilaspur (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through the Station House Officer, Police Station Sirgitti, District Bilaspur (C.G.)

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... Respondent(s)

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With

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2 / 37 (Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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CRIMINAL APPEAL NO. 1653 OF 2019

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Sanju Shriwas, S/o Hemant Shriwas, aged about 28 years, R/o Vidyut Nagar Tifra, P.S. Sirgitti, Bilaspur, District Bilaspur (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Sirgitti, District Bilaspur (C.G.)

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... Respondent(s)

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Arising out of Judgment dated 28.9.2018 passed by Special Judge, SC/ST(PA) Act, 1989, Bilaspur, District Bilaspur in Special Criminal Case SC/ST(PA) Act 1989 No.37/2014.

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For Appellant :- [In Cr.A. No.1609/2018]	Mr. Surendra Singh, Senior Advocate with Mr. Amit Kumar, Advocate.
For Appellant No.1 :-	Mr. Amiyakant Tiwari, Advocate.
For Appellants No.2 & 3 [In Cr.A. No.1617/2018]	Mr. V.K. Pandey, Advocate.
For Appellant :- [In Cr.A. No.1653/2019]	Ms. Pushpa Dwivedi, Advocate.
For Respondent/State :- [In all three Cr.As.]	Mr. Ashish Shukla, Additional Advocate General.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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C A V Judgment

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Sanjay K. Agrawal, J.

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1. Assail in the present batch of three criminal appeals

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filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CrPC’) is to the legality,

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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validity and correctness of the Judgment dated 28.9.2018 passed by learned Special Judge, SC/ST(PA) Act, 1989, Bilaspur, District Bilaspur (Trial Court) in Special Criminal Case SC/ST(PA) Act 1989 No.37/2014.

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2. Since these appeals arise out of the same impugned Judgment and the facts of the case also being similar in these appeals, they have been clubbed together, heard together and are being disposed of by this common Judgment.

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3. There were total six accused persons in the instant case, i.e., Pramod Nirmalkar (A-1), Sanju Shriwas (A-2), Navin Nirmalkar (A-3), Taran Nirmalkar (A-4), A. Srinivas Rao alias Seenu Rao (A-5) and Bhuneshwar Prasad alias Mithun Gupta (A-6) who were tried before the Trial Court for the offences charged with, out of which only one accused person i.e. A. Srinivas Rao alias Seenu Rao (A-5) has been acquitted by the Trial Court of all the charges framed against him whereas rest of the accused persons have been convicted by the Trial Court who have filed the present appeals jointly and separately.

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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4. Cr.A. No.1609/2018 has been filed by A-6 Bhuneshwar Prasad. Cr.A. No.1617/2018 has been preferred by A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar. Cr.A. No.1653/2019 has been moved by A-2 Sanju Shriwas.

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Prosecution case, in brief:-

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5. PW-9 Manoj Patkar lodged Merg Intimation (Ex. P-11) followed with FIR (Ex.P-10) at Police Station Sirgitti, District Bilaspur informing that on 30.6.2014 around 10-10:30 in the night near Suryavanshi Mohalla Chowk when he was chitchatting along with Krishna, Pawan (PW-10), Sarwan (PW-14), they saw Navin (A-3), Taran (A-4), Pramod (A-1), Mithun (A-6), Golu Kashyap, Triloki Verma, Mukhi Verma all armed with weapons like sword, rod, hockey sticks and clubs going towards Yadunandan Nagar riding on 3-4 motorcycles and after some time one Nanku (PW-7) came running from Yadunandan Nagar side and informed them the aforesaid accused persons were assaulting Vijay Suryavanshi (deceased) and Barandas Laskar (PW-5) and all of them were having deadly weapons. On the said information, he (PW-9) and Sarwan (PW-14) reached the spot i.e., near Ram Mandir, Yadav Nagar, where they saw Taran (A-4),

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Navin (A-3), Pramod (A-1), Mithun (A-6), Triloki, Mukhi, Golu Kashyap were relentlessly assaulting Vijay Suryavanshi (deceased) and Barandas Laskar (PW-5) with the weapons they had with them and when they made a shout as to why the accused persons assaulting Vijay Suryavanshi (deceased) and Barandas Laskar (PW-5) then the accused persons ran away from the spot leaving seriously injured Vijay Suryavanshi and Barandas Laskar who both were immediately taken to a nearby Care-N-Cure Hospital where Vijay Suryavanshi was declared brought dead by the doctors whereas Barandas Laskar (PW-5) was admitted and treated for the injuries suffered by him.

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6. Case of the prosecution further is that just prior to the aforesaid incident, Barandas Laskar (PW-5) along with Vijay Suryavanshi (deceased) was going to his home at Narmada Vihar, Yadunandan Nagar on motorcycle and as soon as they reached near Ram Mandir, Yadav Nagar, the accused persons who were already there on the said spot, stopped Barandas Laskar and Vijay Suryavanshi and assaulted them with knife, sword and other deadly weapons seriously injuring them due to which they became unconscious on the spot.

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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7. On the aforesaid merg intimation, FIR bearing Crime No.267/2014 was registered against the present appellants and other co-accused persons for offence punishable under Sections 307, 302, 147, 148 & 149 of IPC and the wheels of investigation started running. During investigation, crime details form (Ex. P-12) was prepared by the police and subsequently a site plan (Ex. P-7) was also prepared by the concerned Patwari i.e., PW-4 Vinod Tamboli. Inquest panchnama (Ex. P-30) was prepared in respect of deceased Vijay Suryavanshi and his post-mortem (Ex. P-1) was conducted by PW-1 Dr. C.S. Uikey who found the cause of his death due to cardio respiratory failure and shock due to injuries on his vital organs i.e., right kidney & brain and the lacerated wounds were found to be caused by hard & blunt object and the incised wounds were caused by hard & sharp object and the nature of his death was homicidal. Exs. P-20, P-22, P-23 & P-25 are the memorandum statements of A-2 Sanju Shriwas, A-3 Navin Nirmalkar, A-4 Taran Nirmalkar and A-6 Bhuneshwar Prasad respectively pursuant to which, a bloodstained sharp edged ironmade weapon (chaapad) was seized from A-2 Sanju Shriwas vide recovery memo Ex.P-17, a bloodstained

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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iron sword and clothes (jeans pant & shirt) were seized from A-3 Navin Nirmalkar vide recovery memo Ex. P-15, a bloodstained knife and clothes (jeans pant & T-shirt) were seized from A-4 Taran Nirmalkar vide recovery memo Ex. P-16 and a knife was seized from A-6 Bhuneshwar Prasad vide recovery memo Ex.P-26. Similarly, blood mixed earth and control earth were seized from the spot in respect of deceased Vijay Suryavanshi and injured PW-5 Barandas Laskar vide recovery memo, Exs. P-14 & P-18 respectively. Statements of the witnesses were recorded under Sections 161 and 164 of CrPC. Medico legal reports in respect of injured PW-5 Barandas Laskar are Exs. P-21 & P-6 and the wound certificate is Ex. P-5. Ex. P-55 is the Forensic Science Laboratory (in short, ‘FSL’) report in which blood was found on the ironmade sharp edged weapon i.e. chaapad (Art. G) seized from A-2 Sanju Shriwas; sword (Art. H) and full-pant & T-shirt (Art. K1 & K2) seized from A-3 Navin Nirmalkar as well as on the knife (Art. I) and full-pant & shirt (Art. L1 & L2) seized from A-4 Taran Nirmalkar, including the blood mixed and control earth (Art. A, B, C & D) seized from the spot, whereas human blood was found on the clothes (Art. E1, E2,

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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E3 & E4) of deceased Vijay Suryavanshi and on the full-pant (Art. F) of injured PW-5 Barandas Laskar. On the completion of the investigation, final report was presented before the Magistrate and, after committal, the matter was put to trial and its disposal in accordance with law before the Trial Court.

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Charges framed by the Trial Court

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8. On 5.11.2014, learned Trial Court framed charges against the accused persons on the accusation that on 30.6.2014 around 10:30 p.m. or before or after that time, near Suryavanshi Mohalla, Tifra, Bilaspur, the accused persons i.e. A-1 Pramod Nirmalkar, A-2 Sanju Shriwas, A-3 Navin Nirmalkar, A-4 Taran Nirmalkar, A-5 A. Srinivas Rao (acquitted) and A-6 Bhuneshwar Prasad alias Mithun Gupta constituted an unlawful assembly with an object to commit murder of Vijay Suryavanshi and Barandas Laskar and, in prosecution of their common object, committed riot thereby committed offence under Section 147 of IPC and further they being members of an unlawful assembly, in prosecution of their common object to commit murder of Vijay Suryavanshi and Barandas Laskar, committed riot

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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being armed with deadly weapons like – sword, rod, hockey sticks & clubs etc., thereby committed offence under Section 148 of IPC and in furtherance of their common object, with intention and knowledge, they caused murder of Vijay Suryavanshi assaulting him with deadly weapons like – sword, knife, rod, hockey sticks, clubs etc., thereby committed offence under Section 302/149 and also caused such bodily injuries to Barandas Laskar with deadly weapons like knife, sword etc., on his vital parts, which were capable of resulting in his death thereby committed offence under Section 307/149 and the said offences were committed by the accused persons knowing that Vijay Suryavanshi and Barandas Laskar were members of a Scheduled Caste thereby committed offence Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, ‘SC/ST(PA) Act’. Thus, all the aforesaid accused persons were charged with the offences punishable under Sections 147, 148, 302/149, 307/149 of IPC as well as under Section 3(2)(v) of the SC/ST(PA) Act to which however they denied and entreated for the trial of the same.

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Witnesses and documents relied on by the prosecution and the defence during trial

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9. During the course of trial, in order to prove its case, the prosecution examined as many as 23 witnesses as PW-1 to PW-23 and exhibited 55 documents vide Ex. P-1 to P-55. After closure of the prosecution evidence, respective statement of the accused persons was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, however, no witness has been examined but 08 documents have been relied on as Ex.(I) D/1 to Ex. D/07 qua the statements of the witnesses recorded under Section 161 of CrPC including the statements of PW-5 Barandas Laskar, the injured eye-witness, and the first informant PW-9 Manoj Patkar recorded under Section 164 of CrPC. Hemsingh Dhruv, Constable, Police Station Pendra, District Bilaspur has been examined by the Trial Court as Court Witness (CW-0). Finding of conviction and sentence by the Trial Court

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10. By impugned judgment dated 28.9.2018, on appreciation of the oral and documentary evidence available on record, learned Trial Court recorded the following finding:-

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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(1) Statement of PW-5 Barandas Laskar, the injured eye-witness, is partly reliable to the extent of culpability of A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar and is not reliable for implicating A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad.

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(2) PW-7 Nanku Suryavanshi has not seen the incident and is not an eye-witness as such and he has only informed about the incident to PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi who had reached the spot.

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(4) Though A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad were not identified by the injured eyewitness PW-5 Barandas Laskar, but the other witnesses i.e. PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi have seen A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad running away from the spot and coupled with the other piece of evidence, they are guilty of the offence with the aid of Section 149 of CrPC.

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(5) No legal evidence found against A-5 A. Srinivas Rao alias Seenu Rao so as to implicate him for the offences charged with.

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(6) Forensic evidence has been relied upon qua FSL report (Ex. P-55) in which blood was found on the iron-made sharp edged weapon i.e. chaapad (Art. G) seized from A-2 Sanju Shriwas; sword (Art. H) and full-pant & T-shirt (Art. K1 & K2) seized from A-3 Navin Nirmalkar as well as on

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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the knife (Art. I) and full-pant & shirt (Art. L1 & L2) seized from A-4 Taran Nirmalkar.

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Thus, on the basis of the aforesaid finding, learned

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Trial Court acquitted A-5 A. Srinivas Rao alias Seenu Rao of all the charges framed against him finding no legal evidence. However, learned Trial Court while acquitting all the accused appellants herein of the charges under Section 147 of IPC and under Section 3(2)(v) of the SC/ST(PA) Act held them guilty for offence under Sections 148, 302, 307 of IPC but without the aid of Section 149 of IPC and accordingly convicted and sentenced each of them thereunder as

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mentioned in the following chart:-

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Conviction		Sentence
1. Under Section 148 IPC.	1. 2. 3.	Rigorous Imprisonment for 03 years. Fine of Rs.5000/-. Rigorous Imprisonment for 01 month, in default ofpayment of fine.
2. Under Section 307 IPC.	1. 2. 3.	Rigorous Imprisonment for 10 years. Fine of Rs.20,000/-. Rigorous Imprisonment for 04 months, in default ofpayment of fine.
3. Under Section 302 IPC.	1. 2. 3.	Imprisonment for Life. Fine of Rs.25,000/-. Rigorous Imprisonment for 05 months, in default ofpayment of fine.
All substantive senten to run co	ces ncu	have been directed rrently.

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Submission of learned counsel appearing for A-6 Bhuneshwar Prasad @ Mithun Gupta in Cr.A. No.1609/2018:-

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11. Mr. Surendra Singh, learned Senior Counsel appearing through virtual mode, would submit that there is no incriminating evidence against A-6 Bhuneshwar Prasad. The prosecution story is totally false and fabricated as learned Trial Court has not relied upon the statement of PW-5 Barandas Laskar, the injured eye-witness, qua A-6 Bhuneshwar Prasad. PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi are not eye-witnesses as they were having their meal in the house of PW-10 Pawan Suryavanshi at the time of incident. Similarly, PW-9 Manoj Patkar is also not an eye-witness to the incident and his statement cannot be said to be credible and trustworthy. PW-6 Sharad Laskar in fact had reached the spot after the incident. PW-7 Nanku Suryavanshi’s statement has not been relied upon by learned Trial Court. The statement of PW-5 Barandas Laskar, the injured eye-witness, has been relied upon by learned Trial Court in respect of only A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar. Further, the Investigating Officer, PW-17 Ashok Sharma, in paragraph 41 of his statement has

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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clearly admitted that there was no source of electric pole or electricity facility available at the spot when the incident is said to have occurred around 10:30 in the night and therefore the alleged eye-witnesses could not have been relied upon by learned Trial Court as they have not seen the incident. Furthermore, no blood was found on the alleged weapon of offence i.e., knife recovered from A-6 Bhuneshwar Prasad. As such, the convictions and sentences of A-6 Bhuneshwar Prasad for the said offences are liable to be set-aside and he deserves to be acquitted of the alleged offences.

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Submission of learned counsel appearing for A-1 Pramod Nirmalkar in Cr.A. No.1617/2018:-

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12. Mr. Amiyakant Tiwari, learned Counsel appearing for A-1 Pramod Nirmalkar, would submit that offences under Sections 302 and 307 of IPC were charged with the aid of Section 149 of IPC but the convictions under the said offences have been made without the aid of Section 149 of IPC in absence of which A-1 Pramod Nirmalkar suffers prejudice, in light of the decision of the Supreme Court delivered in the matter

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of Suraj Pal v. State of Uttar Pradesh 1. Moreover, no

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seizure has been made from the possession of A-1 1 AIR 1955 SC 419

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Pramod Nirmalkar. Thus, the convictions and sentences of A-1 Pramod Nirmalkar for the alleged offences are not sustainable at all and he deserves to be acquitted of the said offences on the ground of benefit of doubt.

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Submission of learned counsel appearing for A-3 Navin Nirmalkar and A-4 Taran Nirmalkar in Cr.A. No.1617/2018:-

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13. Mr. V.K. Pandey, learned Counsel appearing for A-3 Navin Nirmalkar and A-4 Taran Nirmalkar, would submit that the Trial Court is absolutely unjustified in convicting A-3 Navin Nirmalkar and A-4 Taran Nirmalkar as there is no legally sustainable evidence against them for the alleged offences. Learned Trial Court has partly relied upon and partly disbelieved the statement of the injured eye-witness PW-5 Barandas Laskar and in absence of corroboration, the convictions and sentences of A-3 Navin Nirmalkar and A-4 Taran Nirmalkar could not have been made only on the basis of testimony of PW-5 Barandas Laskar, in view of the decision of the Supreme Court rendered in the matters of Javed Shaukat Ali Qureshi v. State of Gujarat2 and Khema alias Khem Chandra and

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Others v. State of Uttar Pradesh 3 . Furthermore, in

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3 (2023) 10 SCC 451

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2 (2023) 9 SCC 164

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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the FSL report, only blood has been found on the articles alleged to have been seized from A-3 Navin Nirmalkar and A-4 Taran Nirmalkar and in absence of human blood the recovery of those articles would be of no use to the prosecution. In that view of the matter, both A-3 Navin Nirmalkar and A-4 Taran Nirmalkar deserve to be acquitted of the alleged offences on the basis of benefit of doubt.

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Submission of learned counsel appearing for A-2 :- Sanju Shriwas in Cr.A. No.1653/2019

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14. Ms. Pushpa Dwivedi, learned Counsel appearing for A-2 Sanju Shriwas, would submit that there is no legally sustainable evidence against A-2 Sanju Shriwas also and the statement of the injured eyewitness PW-5 Barandas Laskar is neither wholly reliable nor wholly unreliable because of his contradicting statements made in his statement recorded under Section 161 & 164 of CrPC as well as in his Court’s statement. Similarly, PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi are not eye-witnesses and PW-7 Nanku Suryavanshi has not been relied upon by the Trial Court. Apart from that, on the alleged weapon seized from A-2 Sanju Shriwas,

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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only blood was found. Therefore, in absence of corroboration, the convictions and sentences of A-2 Sanju Shriwas for the alleged offences also could not be said to be well merited and justified and as such deserve to be set-aside. In support of her contention, she has also relied upon the decisions of the Supreme Court rendered in the matters of Javed Shaukat Ali

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Qureshi (supra) and Khema alias Khem Chandra (supra).

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Submission of learned State Counsel:-

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15. Mr. Ashish Shukla, learned Additional Advocate General, appearing for the Respondent/State, would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the convictions and sentences of the appellants herein have rightly been made on the basis of the ocular testimony of injured eye-witness PW-5 Barandas Laskar and other eye-witnesses PW-6 Sharad Laskar, PW-7 Nanku Suryavanshi, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi

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who have clearly supported the case of the prosecution and, in addition, on the weapon of offence seized from the accused persons, blood has also been found in the FSL report. Thus, the convictions and

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(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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sentences of the appellants for the said offences as such is absolutely justified and their appeals therefore are liable to dismissed.

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:Discussion, legal analysis and conclusion

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16. We have heard learned Counsel for parties, considered their rival submissions made herein above and also perused the record of the case with utmost circumspection.

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17. Case of the prosecution is predominantly based on the testimony of the injured eye-witness, PW-5 Barandas Laskar. However, learned Trial Court has relied upon the testimony of the said witness (PW-5) only to the extent of implicating A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar. PW-7 Nanku Suryavanshi has not been relied upon by the Trial Court as an eye-witness as he has not seen the incident and had only informed about the incident to PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi and in turn they are said to have seen the incident. Further, though injured eyewitness PW-5 Barandas Laskar has not identified A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad, but PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10

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¶128

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Pawan Suryavanshi and PW-14 Sarwan Suryavanshi all have seen A-2 Sanju Shriwas and A-6 Bhuneshwar running away from the spot.

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18. Keeping in view of the evidence available on record, it would be appropriate to first consider the case of A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad and thereafter the case of A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar.

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Case of A-2 Sanju Shriwas (Cr.A. No.1653/2019) :- and A-6 Bhuneshwar Prasad (Cr.A. No 1617/2018)

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19. It is evident from the record that learned Trial Court has believed the testimony of injured eye-witness PW5 Barandas Laskar to the extent of implicating A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar but has disbelieved his testimony to the extent of implicating A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad and has clearly held in paragraph-11 of the impugned Judgment that his testimony to the extent of A-6 Bhuneshwar Prasad is doubtful and exaggerated. However, in paragraph-30 it has been held by learned Trial Court that except PW-5 Barandas Laskar and PW-7 Nanku Suryavanshi all the other witnesses i.e. PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14

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¶134

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

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Sarwan Suryavanshi have seen A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad running away from the spot and further held that PW-5 Barandas Laskar has not identified A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad and PW-7 Nanku Suryavanshi is not an eye-witness as already held by the Trial Court.

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20. Thus, the only evidence which has been found proved by learned Trial Court against A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad is that PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi have seen both of them running from the spot. In this regard, it is well settled that subsequent conduct of the accused is relevant fact under Section 8 of the Indian Evidence Act, 1872 (in short, ‘the Evidence Act’), but that alone cannot be a ground to convict the accused for offence under Section 302 of IPC, in light of the decision of the Supreme Court delivered in the matter of

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4 Subramanya v. State of Karnataka . Similarly, in the matter of Yudhishtir v. State of Madhya Pradesh 5,

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the Supreme Court has held that the mere fact that other witnesses speak to the appellants’ running away

4 AIR 2022 SC 5110

5 1971 (3) SCC 436

21 / 37

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶143

from the house is not enough to make them guilty of an offence under Section 302 of IPC, read with Section 34 of the Indian Penal Code, 1860. As such, the presence of A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad cannot be said to be duly established on the basis of evidence available on record.

¶144

21. Furthermore, though pursuant to the memorandum statement (Ex. P-20) of A-2 Sanju Shriwas, a sharp edged iron-made weapon (chaapad) was seized vide recovery memo Ex.P-17 and similarly from the memorandum statement (Ex. P-25), a knife was seized from A-6 Bhuneshwar Prasad vide recovery memo Ex. P-26, but in the FSL report (Ex. P-55) only blood was found on the chaapad (Art. G) seized from A-2 Sanju Shriwas whereas on the knife seized from A-6 Bhuneshwar Prasad no blood was found and therefore in absence of human blood, the recovery of the alleged weapon of offence would be of no use to the prosecution in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh6 .

¶145

6 (2019) 7 SCC 781

¶146

22 / 37

¶147

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶148

22. Thus, on the basis of only evidence of subsequent conduct found proved against A-2 Sanju Shriwas and A-6 Bhuneshwar Prasad, they cannot be convicted in view of Subramanya (supra) and Yudhishtir (supra) and therefore their convictions and sentences for the said offences deserves to be set-aside and they both are entiteld to be acquitted of the said charges on the basis of benefit of doubt.

¶149

Case of A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar (Cr.A. No.1617/2018)

¶150

23. As noticed herein above, in paragraph-11 of the impugned Judgment, learned Trial Court has found the statement of injured eye-witness PW-5 Barandas Laskar reliable only to the extent of implicating A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar.

¶151

24. Arguments have been raised with regard to the testimony of the injured eye-witness PW-5 Barandas Laskar questioning that once the Trial Court has held the said witness is partly reliable and partly unreliable then in light of the decision of the Supreme Court in the matter of Vadivelu Thevar v. State of Madras7 followed in Javed Shaukat Ali qureshi

¶152

7 AIR 1957 SC 614

¶153

23 / 37

¶154

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶155

(supra) and Khema (supra), the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. In paragraphs 10, 11 & 12 of Vadivelu Thevar (supra), their Lordships of the Supreme Court have held thus:

¶156

“10. … On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:

¶157

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

¶158

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

¶159

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

¶160

24 / 37

¶161

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶162

11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that “no particular number of witnesses shall, in any case, be required for the proof of any fact”. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that “Evidence has to be weighed and not counted”. Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be

¶163

25 / 37

¶164

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶165

entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

¶166

(1) Wholly reliable.

¶167

(2) Wholly unreliable.

¶168

(3) Neither wholly reliable nor wholly unreliable.

¶169

12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. ”

¶170

26 / 37

¶171

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶172

25. Though learned Trial Court has partly believed and partly disbelieved the evidence of the injured eyewitness PW-5 Barandas Laskar, but his evidence has been partly relied upon by the Trial Court to the extent of implicating A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar. In this regard, as aforesaid, in light of the decision of the Supreme Court in Vadivelu Thevar (supra), the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Accordingly, we will look into as to whether the statement of the injured eye-witness PW-5 Barandas Laskar has been corroborated in material particulars by direct or circumstantial evidence or not.

¶173

26. It is the case of the defence that there was no source of electric pole or the electricity facility at the spot and the incident is said to have taken place around 10:30 in the night near Ram Mandir, Yadav Nagar, Tifra, Bilaspur. In this regard, site plan (Ex. P-7) clearly depicts that there was no source of electric pole or electricity bulb at the place of incident. Furthermore, the Investigating Officer, PW-17 Ashok Sharma, in

¶174

27 / 37

¶175

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶176

paragraph 36 of his statement has clearly admitted that he was informed by the injured eye-witness PW-5 Barandas Laskar and other witnesses that there was darkness at the spot when the incident had occurred. Similarly, in paragraph 41, the Investigating Officer has admitted that there was no source of electric pole or electricity facility available at the spot. As such, PW-5 Barandas Laskar, the injured eye-witness, had no opportunity to observe the incident and his testimony therefore could not have been relied upon by the Trial Court.

¶177

27. The Supreme Court in the matter of State of Rajasthan v. Netrapal 8 has held that where the presence of electric bulb not shown in site plan then in that case the evidence of witnesses that they identified the accused is not reliable, and observed in paragraph-9 as under:-

¶178

“9. We may, however, advert to one aspect before parting with the matter. While allowing the appeals filed by the accused and in extending benefit of doubt, the High Court was rather harsh in making certain observations and in using strong language against the prosecution witnesses. For instance, the prosecution evidence was not consistent as regards availability of electric light at the place of offence. One may appreciate that in such circumstances, the

¶179

8 2007 AIR SCW 1370

¶180

28 / 37

¶181

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶182

Court may be on its guard and consider the evidence carefully. The High Court, however, observed that the statements of prosecution witnesses were 'completely false and incorrect ones'. ”

¶183

28. Similarly, in the matter of Bollavaram Pedda Narsi

¶184

Reddy and Others v. State of Andhra Pradesh 9 , the

¶185

Supreme Court has held that the credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression. When the crime was committed during the hours of darkness and the assailants were utter strangers to the witnesses, the identification of the accused persons assumes great importance. The prevailing light is a matter of crucial significance.

¶186

29. Returning to the facts of the case, it is quite vivid that site plan (Ex. P-7), prepared and proved by PW-4 Vinod Tamboli, the Patwari, nowhere depicts that there was electric pole or electric bulb at the place of occurrence and the incident is said to have occurred around 10:30 in the night near Ram Mandir, Yadav Nagar and it has also been admitted by the Investigating Officer PW-17 Ashok Sharma in 9 (1991) 3 SCC 434

¶187

29 / 37

¶188

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶189

paragraphs 36, 41 & 45 of his statement that there was no electric pole or source of electricity at the spot and he was informed by the witnesses including the injured eye-witness PW-5 Barandas Laskar that there was darkness at the spot. As such, there was no occasion for PW-5 Barandas Laskar to see A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar at the time when the assault was being made and therefore the presence of the said accused persons at the time of incident also appears to be doubtful and the evidence of the injured eyewitness PW-5 Barandas Laskar qua A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar casts serious doubt about their identification and makes his evidence questionable and unworthy of reliance.

¶190

30. Furthermore, learned Trial Court has also relied upon the evidence of PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi as eye-witnesses to the incident, who after being informed by PW-7 Nanku Suryavanshi are said to have reached the spot and seen the incident.

¶191

30 / 37

¶192

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶193

31. Learned Trial Court in paragraph 15 of the impugned Judgment has held that PW-7 Nanku Suryavanshi had not seen the incident and he was informed by some unknown person about the incident which he informed to PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi who thereafter reached the spot. Thus, as per the finding recorded by the Trial Court that PW-7 Nanku Suryavanshi had not seen the incident, the said finding itself has become final. Yet, the Trial Court has relied upon the evidence of PW-7 Nanku Suryavanshi that he has informed PW-6 Sharad Laskar, PW-9 Manoj Patkar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi thereby they had reached the spot and seen the incident.

¶194

32. PW-6 Sharad Laskar in paragraph 8 of his statement has clearly admitted that when he reached the spot he only found the deceased Vijay Suryavanshi and PW-5 Barandas Laskar lying on the spot in injured condition and further in paragraph 13 he has stated that he along with PW-9 Pawan Suryavanshi and PW14 Sarwan Suryavanshi had reached the spot and when they had reached the spot, the incident had

¶195

31 / 37

¶196

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶197

already taken place and they were half kilometer away from the place of incident, at Shiva Chowk. As such, the testimony of PW-6 Sharad Laskar is of no relevance to be relied upon as eye-witness.

¶198

33. Similarly, PW-10 Pawan Suryavanshi is also said to have informed about the incident by PW-7 Nanku Suryavanshi whom the Trial Court has not relied upon as eye-witness. PW-10 Pawan Suryavanshi has stated in his statement before the Court that he had reached the spot after being informed by PW-7 Nanku Suryavanshi. However, it is the case of the defence that at the time of incident PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi all three were taking dinner in the house of PW-10 Pawan Suryavanshi and as such they have not seen the incident. This fact finds support from the statement of PW-14 Sarwan Suryavanshi who in his police statement (Ex. D-7) has stated that he along with PW-6 Sharad Laskar and PW-10 Pawan Suryavanshi was taking dinner in the house of PW-10 Pawan Suryavanshi at the time of incident. Thus, the testimony of PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi cannot

¶199

32 / 37

¶200

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶201

be said to be duly established and is not worthy to be relied upon as eye-witness to the incident at all.

¶202

34. Apart from that, the testimony of PW-9 Manoj Patkar

¶203

has also been relied upon by learned Trial Court as eye-witness. He is also said to have informed about the incident by PW-7 Nanku Suryavanshi whom the Trial Court has already held that he has not seen the incident and is not an eye-witness. As such, the question of informing about the incident by PW-7 Nanku Suryavanshi to him also does not arise as PW7 Nanku Suryavanshi, as held by the Trial Court itself, was not an eye-witness. Moreover, PW-9 Manoj Patkar in his police station (Ex. D-3), merg intimation (Ex. P-11) and FIR (Ex. P-10) as well as in his statement before the Court has stated that on 30.6.2014 around 10-10:30 in the night near Suryavanshi Mohalla Chowk when he was chitchatting along with Krishna, PW-10 Pawan Suryavanshi, PW-14 Sarwan Suryavanshi at that time they had seen A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar, A-4 Taran Nirmalkarm, A-6 Bhuneshwar Prasad alias Mithun and other persons all armed with weapons like sword, rod, hockey sticks and clubs

¶204

33 / 37

¶205

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶206

going towards Yadunandan Nagar riding on 3-4 motorcycles and after 5-10 minutes PW-7 Nanku Suryavanshi had come running from Yadunandan Nagar side and informed them about the incident and on the said information, he (PW-9) along with PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi had reached the spot and had seen the accused persons assaulting the deceased Vijay Suryavanshi and PW-5 Barandas Laskar and on their shout the accused persons ran away from the spot. However, none of the witnesses i.e. PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi have supported the said statement of PW-9 Manoj Patkar of their chitchatting at Shiva Chowk in any of their statements be it their police statement or court statement. Even the name of PW-9 Manoj Patkar nowhere finds in the statement of these three witnesses i.e., PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi who have stated in their statement that on being informed by PW-7 Nanku Suryavanshi they had reached the spot. This Court in the preceding paragraph has already discarded the testimony of PW-6 Sharad

¶207

34 / 37

¶208

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶209

Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi as eye-witness. As such, the testimony of PW-5 Manoj Patkar of his reaching the spot and seeing the incident along with PW-6 Sharad Laskar, PW-10 Pawan Suryavanshi and PW-14 Sarwan Suryavanshi after being informed by PW-7 Nanku Suryavanshi also cannot be said to be reliable and trustworthy so as to termed him to be an eyewitness to the incident.

¶210

35. So far as the recovery of alleged weapon of offence and clothes from A-3 Navin Nirmalkar and A-4 Taran Nirmalkar is concerned, in the FSL report (Ex. P-55) only blood was found on the sword (Art. H) and fullpant & T-shirt (Art. K1 & K2) seized from A-3 Navin Nirmalkar as well as on the knife (Art. I) and full-pant & shirt (Art. L1 & L2) seized from A-4 Taran Nirmalkar. In view of the decision of the Supreme Court in the matter of Balwan Singh (supra), in absence of human blood, the recovery of the alleged weapon of offence would not come to the aid of the prosecution. No recovery was made from A-1 Pramod Nirmalkar.

¶211

35 / 37

¶212

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶213

36. In that view of the matter, we are of the considered opinion that the reliance placed by learned Trial Court upon the statement of injured eye-witness PW-5 Barandas Laskar that he has seen A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar when the assault was being made is clearly not established beyond reasonable doubt and is not corroborated in material particulars by direct or circumstantial evidence as is required in Vadivelu Thevar (supra).

¶214

37. In addition to the above, in the instant case, among other charges including the charge under Section 147 IPC as well as under Section 3(2)(v) of the SC/ST(PA) Act of which all the accused appellants herein have been acquitted eventually by the Trial Court, the charges under Sections 148, 302 and 307 of IPC were also framed against them and of which the charges under Sections 302 and 307 of IPC were framed with the aid of Section 149 of IPC. However, learned Trial Court have convicted all the appellants for offence under Sections 148, 302 and 307 of IPC but the conviction under Sections 302 and 307 of IPC was without the aid of Section 149 of IPC, which in light of

¶215

36 / 37

¶216

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶217

the Constitution Bench’s decision of the Supreme Court delivered in the matter of Willie Slaney v. State of Madhya Pradesh 10 does not deserve to be sustained. Accordingly, we are unable to sustain the convictions and sentences of the appellants for offence under Sections 148, 302, 307 of IPC in absence of direct or independent charge against them and hereby acquit them of the said offences giving them the benefit of doubt.

¶218

38. Resultantly, in view of the above discussion and legal analysis of evidence available on record supported with the authoritative decisions of the Supreme Court referred to herein above, we conclude as follows:-

¶219

(1) Cr.A. No.1609/2018 filed by A-6 Bhuneshwar Prasad alias Mithun Gupta and Cr.A. No. 1617/ 2018 preferred by A-1 Pramod Nirmalkar, A-3 Navin Nirmalkar and A-4 Taran Nirmalkar as well as Cr.A. No.1653/2019 moved by A-2 Sanju Shriwas, all three are allowed.

¶220

(2) Convictions and sentences of A-1 Pramod Nirmalkar, A-2 Sanju Shriwas, A-3 Navin Nirmalkar, A-4 Taran Nirmalkar and A-6

¶221

10 AIR 1955 SC 419

¶222

37 / 37

¶223

(Cr. A. Nos. 1609 & 1617 of 2018 and 1653 of 2019)

¶224

Bhuneshwar Prasad alias Mithun Gupta for offences under Sections 148, 302 & 307 of IPC are set-aside and they are acquitted of the said offences on the basis of benefit of doubt.

¶225

(3) A-1 Pramod Nirmalkar is reported to be in jail since 3.7.2014. A-2 Sanju Shriwas is reported to be in jail since 14.7.2014. A-3 Navin Nirmalkar and A-4 Taran Nirmalkar both are said to be in jail since 20.8.2014. A-6 Bhuneshwar Prasad is in jail since 28.10.2014. All of them are directed to be released from jail forthwith, if their detention is not required in connection with any other offence.

¶226

39. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.

¶227

Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

¶228

Sharad

¶229

Digitally signed SHARAD by SHARADKUMAR YADAV KUMAR Date: YADAV 2024.09.0517:38:34 +0530

Bhuneshwar Prasad @ Mithun Gupta v. State of Chhattisgarh

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Bhuneshwar Prasad @ Mithun Gupta v. State of Chhattisgarh

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