Appeals against conviction for murder of a village sarpanch allegedly by naxalites. Witnesses first named the appellants only in court despite faces covered at the incident, and no test identification parade was held. Following P. Sasikumar, the High Court held identity doubtful and acquitted all three appellants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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2025:CGHC:2686-DB
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL NO. 57 OF 2018
1. Tati Hando, S/o Tati Perma, aged about 56 years, R/o Chidmer, Karkawadapara, P. S. Nelasnar, District Bijapur (C.G.)
2. Barsa Sudru, S/o Bhimaram, aged about 39 years, R/o Satwa, P.S. Nelasnar, District Bijapur (C.G.)
... Appellant(s)
Versus
... Respondent(s)
With
CRIMINAL APPEAL NO. 143 OF 2018
1. Barsaa Sudru (deleted)
2. Guddi Podiyami, S/o Podiyami Dhula, aged about 31 years, R/o Village Karkawada, Police Station Nelasnaar, District Bijapur (C.G.)
... Appellant(s)
Versus
... Respondent(s)
| --------------------------------------- For Appellants |
--------------------------------------- :- Mr. P.R. Patankar, |
|---|---|
| [In Cr.A. No.57/2018] | Advocate. |
| For Appellant | :- Mr. Pawan Shrivastava, |
| [In Cr.A. No.143/2018] | Advocate. |
| For Respondent/State | :- Mr. Ashish Shukla, |
| Addl. Advocate General. | |
| along with Mr. Sharad | |
| Mishra, Panel Lawyer. |
-----------------------------------------------------------------------------
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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board (16.01.2025)
Sanjay K. Agrawal, J.
1. Since both these Criminal Appeals, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’), have arisen out of the same incident and the question of law and facts also being similar in these two appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.
2. Criminal Appeal No.57/2018 has been filed by two accused/appellants namely Tati Hando (A-1) and Barsa Sudru (A-2) and Criminal Appeal No.143/2018 has been preferred by the sole accused/appellant namely Guddi Podiyami (A-3).
3. Challenge in the present appeals is to the legality, validity and correctness of the judgment and order dated 4.12.2017 passed by learned Additional Sessions Judge (Fast Track Court), Dantewada, District South Bastar Dantewada in Sessions Case No.72/2006, by which each of the three appellants herein i.e., A-1 Tati Hando, A-2 Barsa Sudru and
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A-3 Guddi Podiyami, have been convicted for offences punishable under Sections 302/149 and 147 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder in the manner as
mentioned in the chart given below:-
| Conviction | Sentence |
|---|---|
| 1. Under Section 302/149 of IPC |
1. Rigorous Imprisonment for Life. 2. Fine of Rs.100/-. 3. Rigorous Imprisonment for 01 month, in default ofpayment of fine. |
| 2. Under Section 147 IPC | 1. Rigorous Imprisonment for 02 years. 2. Fine of Rs.100/-. 3. Rigorous Imprisonment for 01 month, in default ofpayment of fine. |
| Both sentences have concu |
been directed to run rrently. |
4. Facts of the case, in brief, are that in the intervening night of 6th & 7th of November, 2005 at Village Gumalnar, more or less 33 co-accused persons including the present three appellants are said to have cordoned off the house of PW-1 Budhram and some of them entered into his house and enquired about his son Munnaram who was the Sarpanch of Village Gumalnar. PW-1 Budhram doubting them to be naxalites did not disclose the whereabouts of his son who was sleeping in the
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bedroom of the house. However, the accused persons kicked open the door, entered into the bedroom of his son and took him forcibly to the courtyard of the house and where they committed his murder. The said incident was witnessed by PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram respectively.
5. Matter was reported to the police on telephone and in the next morning after arrival of the police, Dehati Nalishi (Ex. P-1) was recorded at the instance of PW-1 Budhram followed by recording of Merg Intimation (Ex. P-2) and FIR (Ex. P-22) against one naxalite Rajman, his wife Phoolmati and 30 other naxalites who had come to the house of the deceased Munnaram, for offences under Sections 147, 148, 149, 302 of IPC and also under Sections 25 & 27 of the Arms Act, 1959. Crime Details Form was prepared vide Ex. P-3. After preparing inquest panchnama (Ex. P-20), post-mortem of deceased Munnaram was conducted by PW-13 Dr. H.L. Dhruv who gave his report (Ex. P-26) opining the cause of death of deceased Munnaram due to excessive external and internal bleeding and shock and the
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nature of his death to be homicidal. Statements of the witnesses were recorded under Section 161 of CrPC. Nazri Naksha was prepared by Patwari vide Ex. P-24.
6. After completion of the investigation, total 33 accused persons were charge-sheeted showing 19 of them to be absconding and after committal of the matter from the Magistrate’s Court they tried in Sessions Case No.76/2006 by learned Trial Court. On 3.8.2006, charges were framed by the learned Trial Court against the remaining 14 accused persons. Thereafter, on 27.2.2007, 8.8.2007 and 23.7.2007, out of total 14 prosecution witnesses, 9 of them i.e. PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai, PW-4 Laxmi Bai, PW-5 Vijay Kumar, PW-6 Maniram, PW-7 Sudru, PW-8 Bugur Singh Atami and PW-9 Sonaru Karma were examined before the said accused persons including the present appellants. However, on 16.12.2007, in a jail break incident, 11 out of the said 14 accused persons including the present appellants i.e., A-1 Tati Hando, A-2 Barsa Sudru and A-3 Guddi Podiyami, absconded from the jail, except Pilaram
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Dengal, Baldeo Singh Samrath and Madvi Budhram against which the trial continued.
7. It is apposite to mention here that in respect of the aforesaid three accused persons, Pilaram Dengal, Baldeo Singh Samrath and Madvi Budhram, a fullfledged trial was conducted in the same Sessions Trial No.72/2006 and after appreciation of the oral and documentary evidence available on record including the evidence led by all the 14 prosecution witnesses, they were ultimately convicted by the learned Trial Court vide its judgment and order dated 30.7.2011. However, in Criminal Appeal No.690/2011 preferred by the said three accused persons, this Court vide its judgment dated 25.9.2014 acquitted two accused persons i.e. Baldeo Singh Samrath and Madvi Budhram of the offences under Sections 302/149 and 147 of IPC whereas convicted only Pilaram Dengal for the said offences. Against his conviction, Pilaram Dengal preferred an SLP (Crl.) No.1553/2015 before the Supreme Court which was dismissed on 18.9.2015.
8. Meanwhile, on 11.4.2015, after the arrest of A-1 Tati Hando and A-2 Barsa Sudru, since PW-1 to PW-9 were already examined, a trial program was
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prepared by the learned Trial Court and summons were issued in respect of the examination of the remaining five prosecution witnesses i.e. PW-10 Manguram - villager, PW-11 Shiv Kumar Dhruv - Head Constable, PW-12 J.C. Bharti - Patwari, PW13 Dr. H.L. Dhruv - Medical Officer and PW-14 Rakesh Kumar Bhoi - Investigating Officer. On 28.4.2016, PW-10 Manguram was again examined and cross-examined as PW-1 in presence of A-1 Tati Hando and Barsa Sudru and thereafter on 24.3.2017 PW-12 J.C. Bharti was also re-examined and cross-examined as PW-2 in respect of the said accused persons. In the meantime, on 14.12.2016, A-3 Guddi Podiyami was also arrested and produced before the Court on 22.2.2017. After that, on 6.9.2017, PW-10 Manguram and PW-12 J.C. Bharti both were again examined and cross-examined as PW-1 and PW-2 respectively in presence of A-3 Guddi Podiyami.
9. Finally, vide impugned judgment and order dated 4.12.2017, the learned Trial Court found A-1 Tati Hando, A-2 Barsa Sudru and A-3 Guddi Podiyami guilty of the offences under Sections 302/149 and 147 of IPC and accordingly convicted and sentenced
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them in the manner as mentioned in the chart shown above, assailing which the present appeals have been filed.
10. Mr. P.R. Patankar, learned counsel appearing for A-1 Tati Hando and A-2 Barsa Sudru in Criminal Appeal No.57/2018, submits that PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram, did not know the appellants prior to the incident and no Test Identification Parade (TIP) has been conducted in accordance with law and therefore their dock identification cannot be an admissible piece of evidence in light of the decision of the Supreme Court rendered in the matter of P. Sasikumar v. The State represented
by Inspector of Police1 . He further submits that PW-1 Budhram, father of the deceased, who had lodged Dehati Nalishi (Ex. P-1) and FIR (Ex. P-22) had only named therein the name of one Rajman and his wife Phoolmati Bai and the present appellants had not been named by him or by the other prosecution witnesses and that as per his own version when the appellants had covered their face
1 2024 INSC 474 : [2024] 7 SCR 87
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with scarf, there is no question of their identification. No TIP has been conducted in the instant case and for the first time in a village panchayat meeting the appellants were named by the villagers and as such in absence of TIP and only on the basis of dock identification, conviction of the appellants cannot be maintained for offences under Sections 302/149 and 147 of IPC and therefore they are entitled to be acquitted of the said offences.
11. Mr. Pawan Shrivastava, learned Counsel appearing for A-3 Guddi Podiyami, submits that the case of A-3 Guddi Podiyami is identical to A-1 Tati Hando and A-2 Barsa Sudru and only on the basis of dock identification, the conviction of A-3 Guddi Podiyami for the offences under Sections 302/149 and 147 of IPC cannot be sustained and he is also entitled to be acquitted of the said offences.
12. Mr. Ashish Shukla, learned Additional Advocate General, however submits that on the date of incident the present appellants along with other accused persons had entered into the house of PW-1 Budhram and took away his son (deceased Munnaram), who was Sarpanch of the Village Gumalnar, for the purpose of a meeting of Salwa
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Judum and committed his murder. As such, the prosecution has been able to prove its case against the appellants and their conviction and sentence for offences under Sections 302/149 and 147 of IPC are well merited and deserve to be affirmed dismissing
their appeals.
13. We have heard learned counsel for parties, considered their rival submissions made hereinabove and also perused the records with utmost care and circumspection.
14. As regards the primary question as to whether the death of deceased Munnaram was homicidal, learned Trial Court has answered the said question in affirmative relying upon the statement of PW-13 Dr. H.L. Dhruv who has conducted the post-mortem examination of deceased Munnaram and also proved the post-mortem report (Ex. P-26) in which he has opined the cause of death of deceased Munnaram to be due to excessive external and internal bleeding and shock and the nature of his death to be homicidal. The said finding of learned Trial Court is correct finding of fact based on medical evidence available on record and which is neither perverse nor contrary to record and as such
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we hereby affirm the said finding of the death of deceased Munnaram to be homicidal in nature.
15. The case is based on direct evidence of PW-1 Budhram, PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai, who are father, wife, sister and mother of deceased Munnaram respectively. In order to consider the plea raised at the bar, it would be appropriate to notice herein the statement of the said witnesses in brief.
16. PW-1 Budhram is the father of deceased Munnaram. The incident had occurred in the intervening night of 6th & 7th of November, 2005 whereas his statement was recorded on 27.2.2007 after 14 months of the incident. He had reported the matter to the police vide Dehati Nalishi (Ex. P-1) in
which he has named only Rajman and his wife Phoolmati (not before us). Admittedly, after the incident dock identification was conducted to identify the assailants of deceased Munnaram. In his statement recorded under Section 161 of CrPC also he has named only Rajman and Phoolmati and has not named the other three accused persons who are before us in the present appeals. In this context,
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it would be appropriate to notice his statement as PW-1. He has stated in his statement that in the intervening of 6th & 7th of November, 2005 the accused persons had come to his house armed with gun and taken his son (deceased Munnaram) for a meeting of Salwa Judum and at that time PW-2 Santo Bai, PW-3 Basanti Bai and PW-4 Laxmi Bai were also present in the house. However, in his cross-examination, he has clearly admitted that the accused persons were old acquaintance of him and one of the accused namely Baldeo is his co-villager and the other accused persons are the residents of the nearby villages. He has admitted that in Dehati Nalishi (Ex. P-1) and police statement (Ex. P-5) he has only named of one Rajman naxalite and his wife Phoolmati and did not name any other accused persons. He has further stated that while reporting (Ex. P-1) and recording his police statement (Ex. P- 5) he had informed that all the accused persons had put their guns on him, but he cannot tell the reason if the said statement has not been recorded in Dehati Nalishi (Ex. P-1) and police report (Ex. P-5). However, in paragraph 12 of his statement, he has also admitted that at the time of incident he could
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only identify Phoolmati and Rajman and could not identify the other accused persons as they were in police uniform and had covered their face with scarf and that he could only remember the name of the other accused persons after three days of the incident and therefore he could not tell the name of the other accused persons in Dehati Nalishi (Ex. P-1) and police statement (Ex. P-5). He has further stated in paragraph 13 of his statement that after his lodging the report there was a meeting took place in the village and in the said meeting itself he got the information of the incident caused by the other accused persons also and has also admitted that after the appellants having been caught by the police, no identification proceeding was conducted before him. Further, in paragraph 14, he has admitted that if the panchayat people would not have told him the name of the appellants, he could not have got the name of the appellants. As such, from the statement of PW-1 Budhram it is vividly clear that he could only identify Rajman and his wife Phoolmati at the time of incident and could not identify the other accused persons as they had covered their face with scarf and were in police
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uniform. Except some acquaintance with the accused persons, he did not name the other accused persons and for the first time in his statement made before the Court on 27.2.2007 he has stated to have identified the accused persons in the dock identification. The evidentiary value of dock identification will be dealt with after considering the statement of PW-2, PW-3 and PW-4.
17. PW-2 Santo Bai, wife of deceased Munnaram, has made similar statement identifying the appellants in the court that her husband was taken by the assailants/appellants. In paragraph-7 of her statement, she has stated that she did not tell the name of all the accused persons in her police statement (Ex. P-6) as she did not know all the accused persons by their name. She has further stated that no TIP was conducted. She has also admitted that she did not know the name of any other accused persons, except the name of Pilaram (who has been convicted by the Trial Court and his conviction has been affirmed by this Court and confirmed by the Supreme Court). Even she did not tell the name of Rajman and Phoolmati Bai in her
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police statement (Ex. P-6). As such, her statement somewhat is in the line of the statement made by PW-1 Budhram.
18. PW-3 Basanti Bai is the sister of deceased Munnaram. She has stated in her statement that while recording her police statement (Ex. D-1) she had already stated that Pilaram (convicted) had assaulted her brother Munnaram with Gupti near his neck and eyes and that she does not know the reason as to why this statement has not been mentioned in her police statement (Ex. D-1). Her statement also seems to be in line of the statement of PW-1 Budhram and PW-2 Santo Bai.
19. Similar is the statement of PW-4 Laxmi Bai, mother of deceased Munnaram, who has stated in her statement that all the accused persons had come to her house armed with gun and gupti and assassinated her son Munnaram with gupti and fled away. However, in her cross-examination, she has admitted that she did not tell the police about the accused persons while recording her statement.
20. The question for consideration is that all the aforesaid four witness i.e. PW-1 Budhram, PW-2
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Santo Bai, PW-3 Basanti and PW-4 Laxmi Bai did not know the accused persons and, except Rajman, Phoolmati and Pilaram, they did not see the other accused persons as they had covered their face with scarf and were in police uniform and no TIP has been conducted by the prosecution for the good reasons known to the prosecution and they have for the first time identified the accused persons in the court proceeding.
21. In this regard, the decision of the Supreme Court rendered in the matter of P. Sasikumar (supra) may be noticed herein profitably wherein also the prosecution witnesses who identified the accused persons in the court were not known to the appellant therein and they had not seen the appellant prior to the incident and their Lordships held that since the identity of the appellant is in doubt, he cannot be convicted on the basis of doubtful evidence as to his identity. It has been observed by their Lordships in paragraphs 10, 12, 13, 14 & 15 as under:-
“10 . The admitted position in this case is that the test identification parade (hereinafter referred to as ‘TIP’) was not con-
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ducted. All the prosecution witnesses who identified the accused in the Court such as PW-1 and PW-5 were not known to the present appellant i.e., accused no.2. They had not seen the present appellant prior to the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/accused No. 2 on the date of the crime while he was wearing a “green colour monkey cap”!
**11. * * ***
12. It is well settled that TIP is only a part of Police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in Court during trial. This identification has been made in Court by PW-1 and PW-5. The High Court rightly dismisses the identification made by PW-1 for the reason that the appellant i.e., accused no.2 was a stranger to PW-1 and PW-1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW-1 made for the first time in the Court was not proper. However, the High Court has believed the testimony of PW-5 who has identified accused no.2 under similar circumstances! The appellant was also stranger to PW-5 and PW-5 had also seen the accused i.e., the present appellant for the first time on that fateful day i.e. on 13.11.2014 while he was wearing a green colour monkey cap. The only reason assigned for believing the testimony of PW-5 is that he is after all an independent witness and has no grudge to falsely implicate the appellant. This is the entire reasoning. We are afraid the High Court has gone completely wrong in believing the testimony of PW-5 as to the identification of the appellant. In cases where accused is a stranger to a witness and there has been no TIP, the
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trial court should be very cautious while accepting the dock identification by such a witness (See: Kunjumon v. State of Kerala (2012) 13 SCC 750).
13. After considering the peculiar facts of the present case, we are of the opinion that not conducting a TIP in this case was a fatal flaw in the police investigation and in the absence of TIP in the present case the dock identification of the present appellant will always remain doubtful. Doubt always belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a reasonable doubt.
The relevance of a TIP, is well-settled. It depends on the fact of a case. In a given case, TIP may not be necessary. The non conduct of a TIP may not prejudice the case of the prosecution or affect the identification of the accused. It would all depend upon the facts of the case. It is possible that the evidence of prosecution witness who has identified the accused in a court is of a sterling nature, as held by this Court in the case of Rajesh v. State of Haryana (2021) 1 SCC 118 and therefore TIP may not be necessary. It is the task of the investigation team to see the relevance of a TIP in a given case. Not conducting TIP in a given case may prove fatal for the prosecution as we are afraid it will be in the present case.
14. The relevance of TIP has been explained by this Court in a number of cases (Please see: Ravi Kapur v. State of Rajasthan (2012) 9 SCC 2841, Malkhansingh and Ors. v. State of Madhya Pradesh (2003) 5 SCC 7462).
15. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this
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Court in recent two cases of Jayan v. State of Kerala (2021) 20 SCC 38 and Amrik Singh v. State of Punjab (2022) 9 SCC 402. In Jayan (supra), this Court disbelieved the dock identification of the accused therein by a witness and while doing so, this Court discussed the aspect of TIP in the following words:
“ It is well settled that TI parade is a part of investigation and it is not a substantive evidence. The question of holding TI parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, TI parade may make the identification of the accused by the witness before the Court trustworthy….” (Para 18) 1 Para 35 2 Para 16 ”
22. The Division Bench of this Court also in Criminal Appeal No.690/2011 while convicting only accused Pilaram Dengal, acquitted the two accused persons Baldeo Singh Samrath and Madvi Budhram on the ground that their identity has not been established by the prosecution witnesses. Thereafter, the conviction of Pilaram was also confirmed by the Supreme Court.
23. Reverting to the facts of the present case, it is quite vivid that the only evidence that has been brought
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on record by the prosecution is the identification of the accused persons in the dock identification by PW-1 Budhram. However, neither in Dehati Nalishi (Ex. P-1) recorded at the instance of PW-1 Budhram nor in his police statement (Ex. P-5) and similarly not in the police statement (Ex. P-6) of PW-2 Santo Bai and also not in the police statement (Ex. D-1) of PW-3 Basanti Bai, the present three appellants have been named by the said witnesses. Though PW-1 Budhram has stated that the accused persons were his old acquaintance, but on account of the fact that they had covered their face with scarf and were in the police uniform, he could not identify them at the time of incident. No TIP has been conducted by the police in accordance with law to identify the present appellants. As noticed herein above, the Supreme Court in the matter of P. Sasikumar (supra) has acquitted the appellant therein holding that since the identity of the appellant is in doubt he cannot be convicted on the basis of doubtful evidence as to his identity. In the instant case also, the identity of the present appellants, as per PW-1 to PW-4, are not established beyond reasonable doubt and no TIP has been conducted to ascertain that they were the
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assailants. In this view of the matter, in our considered opinion, in absence of TIP the identification of the appellants i.e., A-1 Tati Hando, A-2 Barsa Sudru and A-3 Guddi Podiyami, becomes doubtful and as such only on the basis of their dock identification, their conviction and sentence for the offences under Sections 302/149 and 147 of IPC deserve to be set-aside and they are entitled to be acquitted of the said offences on the basis of benefit of doubt.
24. Accordingly, the impugned judgment and order dated 4.12.2017 passed by learned Trial Court in convicting and sentencing the three appellants herein i.e. A-1 Tati Hando, A-2 Barsa Sudru and A-3 Guddi Podiyami for the offences under Sections 302/149 and 147 of IPC is hereby set aside and all three of them are acquitted of the said offences extending them the benefit of doubt. All the three appellants are on bail. They need no surrender. However, their bail-bonds shall remain in operation for a further period of six months in view of the provision contained in Section 437-A of CrPC.
25. In the result, Criminal Appeal No.57/2018 and Criminal Appeal No.143/2018 both stand allowed.
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26. However, it is made clear that this adjudication is only confined to the legality, validity and correctness of the judgment and order dated 4.12.2017 in respect of the present accused persons i.e. A-1 Tati Hando, A-2 Barsa Sudru and A-3 Guddi Podiyami and the cases of absconding accused persons shall be strictly considered and decided in accordance with law on their own merits without being influenced by any of the observations made by this Court in the present appeals.
27. 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 copy of this judgment for information and necessary action at the earliest.
Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge
sharad
Digitally signed SHARAD by SHARADKUMAR YADAV KUMAR Date: YADAV 2025.01.2117:07:26 +0530
2 issues framed by the court
Whether conviction under Sections 302/149 and 147 IPC can rest solely on dock identification where no TIP was conducted and witnesses did not name the accused in earlier statements.
Whether identity of the appellants as assailants was proved beyond reasonable doubt.
Colour shows how this judgement treated each authority
P. Sasikumar v. The State represented by Inspector of PoliceRelied on¶21
2024 INSC 474 : [2024] 7 SCR 87 · Who else cites this
Criminal Appeal No.690/2011Referred¶22
5 provisions across 2 enactments
Tati Hando
Barsa Sudru
Guddi Podiyami
State of Chhattisgarh
Sanjay K. Agrawal
Sanjay Kumar Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
