Bhushan Nishad Vs State of Chhattisgarh

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2025:CGHC:27643-DB

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NAFR

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Digitally ROHIT signed by KUMAR ROHIT CHANDRA KUMAR CHANDRA

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HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 455 of 2024

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Bhushan Nishad S/o Balaram Nishad Aged About 23 Years R/o Village Bramhadei Para, Near Gandhi Chowk, Police Station Khamtarai, Raipur, District : Raipur, Chhattisgarh

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--- Appellant

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versus

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State of Chhattisgarh Through Station House Officer, Police Station Khamtarai, District : Raipur, Chhattisgarh

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--- Respondent

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CRA No. 2192 of 2024

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Rudra Kumar Sahu @ Rahul S/o Uman Ram Sahu Aged About 22 Years R/o Sanyasipara, Behind Muktidham Khamtarai, Raipur, District Raipur Chhattisgarh

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--- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station, Khamtarai, Raipur, District - Raipur Chhattisgarh

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--- Respondent

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CRA No. 518 of 2024

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Yogesh Bharti @ Sonu Chauhan S/o Shri Kusum Bharti, Aged About 25 Years R/o Sanyasipara, Behind Mukti Dham, Khamtarai Raipur Chhattisgarh Permanent R/o Urma Chowk Korba District Korba Chhattisgarh (wrongly not been mention District Korba in impugned judgment)

--- Appellant

Versus

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State of Chhattisgarh Through Police Station Khamtarai Raipur District Raipur Chhattisgarh.

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---Respondent

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For Appellant in CRA 455/2024	: Mr. Bharat Lal Dembra and Mr. C.R.Sahu, Advocates
For Appellant in CRA 2192/2024	: Mr. Goutam Khetrapal, Advocate
For Appellant in CRA 518/2024	: Mr. Dheerendra Pandey, Advocate
For Respondent/State	: Mr. Soumya Rai, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, C.J .

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25.06.2025

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Since the above-captioned appeals arise out of a common factual matrix and impugned judgment, this Court is disposing of the same by this common judgment.

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These criminal appeals preferred under Section 374(2) of the Code of Criminal Procedure, 1973 are directed against the impugned judgment of conviction and order of sentence dated 12.01.2024 passed by the learned Special Judge (Atrocities), Raipur, District- Raipur (C.G.) in Sessions Trial No. 113/2020 (State of Chhattisgarh Vs. Rudra Kumar Sahu @ Rahul & others) whereby the trial Court has convicted and sentenced the appellants with a direction to run all the sentences concurrently in the following manner :

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CONVICTION	SENTENCE
U/s 302/34 of IPC	RI for life time and fine of Rs.1,000/-,
	in default of payment of fine, additional RI for 2 years
U/s 323/34 of IPC	RI for 1 year and fine of Rs. 500/-, in
	default of payment of fine, additional
	RI for 1 month

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The prosecution case, in brief, is that complainant, Ayush Singh, lodged a first information report at Khamtarai police station on 22.02.2020 to the effect that at around 5 to 5:30 pm, he was going to Rupesh Salon Khamtarai market in Activa number CG 04/M-Q/9062 with his friend Sai Kiran. On the way, near the water tank, accused came on motor cycle and took a cut and went out, then they told the said people to drive carefully, upon which, they started abusing in the names of mother and sister and went ahead saying that come ahead they will see. After this he reached Rupesh Salon and left Sai Kiran in the salon and went to Khamtarai market. His friend Raju was also with him. There those two motor cycle riders Rahul Rudra and Bhushan and one another boy came and started abusing in the name of mother and sister and threatening to kill him and started beating him with fists and stones. He ran away from there and hid near the cobbler's shop. Then those three boys went to Rupesh Salon and started beating Sai Kiran. He and his friend Aditya Tiwari intervened there. Rahul Rudra hit Sai Kiran with a knife-like object kept with him, due to which he got injured on the left side of his waist and

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started bleeding. He and his friend Rahul Verma took Sai Kiran to the hospital and admitted him at Narayana Hospital and he came with his friend Aditya Tiwari to report. Due to the assault, he got injured near his right shoulder and Aditya Tiwari got injured near his left cheek. On the basis of the said report, a case was registered against the accused in Khamtarai police station under Crime No. 88/2020 under sections 294, 506, 323, 324, 34 IPC and the first information report was registered and the case was taken into investigation. As M. Sai Kiran died in Narayana Hospital during treatment, the crime of Section 302/34 IPC was added in the case. After giving notice to the witnesses, the deceased's body was examined in their presence and Panchnama of the dead body was prepared. Post mortem of the dead body was done and report was obtained. On the basis of memorandum statement of the accused, knife and motorcycle used in the incident were seized in front of witnesses and seizure memo was prepared. Plain and blood stained soil was seized from the scene of incident. Blood stained clothes worn by accused Rudra Sahu at the time of incident and clothes of the deceased were seized. Police and Patwari prepared the map of the scene of incident. Statements of prosecution witnesses were recorded under section 161 CrPC. Query was made from the doctor regarding the seized property clothes, knife etc. In the case, the seized property was sent to State Forensic Laboratory for chemical test and report was obtained. The accused were

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arrested and their family members were informed about their arrest.

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After completing other necessary investigation proceedings/ formalities, a chargesheet under sections 294, 506, 323, 324, 302, 34 of the Indian Penal Code was filed against the accused in the Court of Judicial Magistrate First Class, Raipur, from where, after the case was committed to the Sessions Court, the case was transferred to the Court of Special Judge (Atrocities), Raipur for due disposal.

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Charges under Sections 294, 506, 323/34 and 302/34 of the Indian Penal Code were framed against the accused and read out to them. They denied the charges and claimed trial. In the trial recorded under Section 313 CrPC, the accused pleaded innocent and stated that they have been falsely implicated. Accused Rudra Sahu has recorded is statement in his defense under Section 315 CrPC.

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On behalf of the prosecution, Hariram Bhoi Patwari (PW-1), Aditya Tiwari (PW-2), Ayush Singh (PW-3), M. Rajkumar Naidu (PW-4), Mahesh Kaal (PW-5), Dr. Ashutosh (PW-6), Raju Sharma (PW-7), Sandeep Tiwari (PW-8), Mintu Mahato (PW-9), K.V. Rao (PW-10), Devendra Kumar (PW-11), Paramjeet Singh Bhamara (PW-12), Assistant Sub-Inspector Bharat Lal Devangan (PW-13), Sub-Inspector Kamal Narayan Sharma (PW-14), Dr. Ninder Singh Chawla (PW-15), Dr. Shivnarayan Manjhi (PW-16) and Inspector B.L. Chandrakar (PW-17) have been recorded and on behalf of

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the defence, accused Rudra Sahu has recorded his own statement.

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In support of its case, the prosecution has produced Patwari map Ex.P-1. Police map Ex.P. 2 and Ex.P-18, First Information Report Ex.P-5, Treatment application of Aditya Tiwari Ex.P-9, Treatment application of Ayush Singh Ex.P-10, Premature death information Ex.P-20 and Ex.P-22. Notice regarding death of the deceased given by Shri Narayana Hospital to Police Station Devendra Nagar Ex.P-19, Notice under Section 175 CrPC Ex.P-6, Map Panchyanama Ex.P-7, Postmortem application Ex.P-30, Memorandum of accused Rudra Ex.P-14, Memorandum of accused Yogesh Bharti Ex.P-15, Memorandum of accused Bhushan Ex.P-16. Seizure memo Ex.P-4, Seizure memo Ex.P29, Seizure memo Ex.P-5, Seizure memo Ex.P 11, 12, 13, 30, 31. Arrest memo of the accused Ex.P-23, 24, 25, Information regarding arrest Ex.P-26, 27, 28, Application by Police Station Incharge Khamtarai to Head of Department, Medical College, Raipur for examination of the seized material Ex.P 32, 37, 38, the application written by Superintendent of Police, Raipur to the Director, State Forensic Science Laboratory, Raipur for examination of the seized material is Ex.P-35, 36, report Ex.P-39 and photographs of the dead body of deceased M. Sai Kiran and the scene of incident are Article 1 to Article 24. The defence has submitted order sheet Ex.D-1, preliminary order Ex.D-2, Istagasa

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Ex.D-3 of Criminal Case No. 329/2020 of Sub-Divisional Officer, Raipur.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 12.01.2024, convicted and sentenced the appellants as aforementioned, against which, aforesaid criminal appeals have been preferred.

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Mr. Goutam Khetrapal, learned counsel for the appellant – Rudra Kumar Sahu @ Rahul in CRA No. 2192 of 2024 would submit the learned trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He would further submit that if the case of the prosecution is accepted on the face of it, then also the appellant is said to have caused injuries to deceased on the spur of the moment and heat of passion, as there was a sudden fight started with the deceased, and injured person on account of dispute with regard to over taking of the bikes, they were not known to each other and also there was no earlier dispute between them, both the parties were abusing each other and the deceased was the aggressor, due to which there was some hot talk took place between the appellant and the deceased, on account of which, on the spur of moment and heat of passion, the appellant stabbed him with the knife, due to which the deceased died. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden hot talk and quarrel,

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under heat of passion and in anger, the appellant caused injuries to the deceased, which caused her death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC.

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Mr. Dheerendra Pandey, learned counsel for the appellant - Yogesh Bharti @ Sonu Chauhan in CRA No. 518 of 2024 would submit that the appellant is an innocent person and has been falsely implicated in the crime in question, there is no conclusive evidence on record that the offence is committed by the present appellant, the finding of the learned Trial Court is not based on material available on record and the same was passed on the basis of conjecture and surmises. He further submitted that the learned trial Court ought to have seen that at time of lodging the FIR by the complainant Ayush Singh, name of the appellant has not been mentioned in his FIR, thereafter very next day police has recorded the statement of such witness then he first time brought the name of the one Sonu Chouhan, but name of the present appellant is not the Sonu Chauhan, his name is Yogesh Bharti but police has not been investigated on this line and also not held any identification parade. He also submitted that the learned trial Court failed to appreciate that complainant

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namely, Ayush Singh was examined before the learned trial Court as PW-3, wherein he was clearly stated that in para 13 of his cross examination that he do not know the accused Sonu Chauhan. he do not know the name of Sonu Chauhan's father, he do not know the caste of accused Sonu. He also admitted that he do not know the accused Yogesh Bharti. He denied that Sonu Chauhan and Yogesh Bharti are the same person. It has been further argued that the learned trial Court also failed to appreciate that, Adtiya Tiwari, who is the sole eye witness, has clearly stated in para 29 of his cross examination that he was first time seen the Sonu Chauhan on the date of incident prior to incident he was not know that sonu chauhan. name of the Sonu Chauhan was disclose by the co-accused Bhusan further admitted he not aware the motorcycle number of the sonu chauhan further stated that in his cross examination para no. 30 it is admitted that police has told me, name of the Yogesh Bharti's name is Sonu Chauhan the very relevant to innocence of the appellant. He lastly submitted that if the case of the prosecution is taken as it is, then also offence u/s 302 of IPC would not be made out against the appellant because entire active role was played by the coaccused Rudra Kumar Sahu, he assaulted with knife to the deceased, therefore conviction of the appellant is not sustainable the and same deserves to be quashed.

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Mr. B. L. Dembra, learned counsel for the appellant – Bhushan Nishad in CRA No. 455 of 2024 vehemently argued that the

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appellant is an innocent person and he has been falsely implicated in the crime in question. He further submitted that the learned trial Court has failed to appreciate that there is no any seizure of weapon and memorandum of any witness against the present appellant. He also submitted that as per prosecution case, the allegation against the present appellant is that he has assaulted injured Ayush with bricks and stone, whereas as per the opinion of the doctor, the injuries received by Ayush are simple in nature. The present has not played any active role in the murder of deceased M. Sai Kiran, the co-accused Rudra Kumar Sahu @ Rahul has assaulted the deceased with knife on the vital part of his body, due to which he died, as such, no ingredients of Section 302 of IPC would be attracted against the present appellant, there are so many infirmities and the prosecution has failed to prove its case beyond all reasonable doubt against the appellant, therefore conviction of the present appellant is not sustainable in the eyes of law the and same deserves to be quashed.

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On the other hand, Mr. Soumya Rai, learned Panel Lawyer, appearing for the State/respondent opposed the aforesaid submissions and would submit that conviction of the appellants / accused is based on the evidence of injured eye-witnesses Aditya Tiwari (PW-2), Ayush Singh Dhruv (PW-3) and Raju Sharma (PW-7), who have duly identified the accused/appellants and have categorically deposed in their respective statements that

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alleged incident took place due to overtaking by the bike initially some hot talk and altercation took place between the accused/appellants and the deceased as well as with them, thereafter, the accused/ appellants have gone from there saying that they will see them later. They further deposed that the accused/appellants again came on a bike near Rupesh Salon and started beating them again. During that time, accused Rudra Kumar Sahu @ Raul took out a knife that he had with him and stabbed M. Sai Kiran. M. Sai sustained injuries on his left chest and left stomach due to the stabbing. While accused Rudra Kumar Sahu was stabbing, accused Yogesh alias Sonu held M.Sai Kiran. When they tried to intervene, accused Bhushan was not letting them go to and accused Bhushan was stopping them from intervening and was pushing them. After accused Rudra Kumar Sahu stabbed M. Sai Kiran with a knife, all the three accused fled from the crime scene, Rupesh Salon, on their bikes. Thus, it is proved that all the accused/appellants in furtherance of the common intention of all have participated in carrying out that crime, each person is responsible for the entire act, even if they didn't individually perform every action. He would further submit that the prosecution has proved its case beyond reasonable doubt and the judgment of the trial Court is just and proper and does not call for any interference by this Court and as such, criminal appeal deserves to be dismissed.

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We have heard learned counsel appearing for the parties,

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considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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The first question for consideration would be, whether the trial Court was justified in holding that death of deceased M. Sai Kiran was homicidal in nature ?

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Dr. Shivnarayan Manjhi (PW-18), who has conducted postmortem on the body of deceased M. Sai Kiran vide Ex.P-21, has stated that during postmortem he has found following injuries :-

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(i) Injury No.1 Stab injury There was a vertical oblique wound of size 4 x 1.5 cm on left side of chest, 3 cm above left nipple, both the edges of which were cleanly cut. It penetrated into chest cavity after cutting through ribs 6 and 7, skin, flesh of chest and ribs. Rib number 3 and 4 were cleanly cut. This wound penetrated inwards, cutting through left lung, cardiac membrane and penetrated into right side of heart, measuring 3 x 1 cm respectively, which were 7 cm deep into chest cavity. Chest cavity was filled with about 1 liter of blood.

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(ii) Injury No. 2 Stab injury There was a deep wound of 1.5 x 0.5 cm size up to the horizontal flesh on the left side of the chest, 5 cm below the nipple.

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(iii) Injury No. 3 Stab injury There was a deep wound of 1.5 x 0.5 cm size up to the vertical flesh on the left side of the chest, 19 cm below the nipple.

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(iv) Injury No. 4 Stab injury There was a wound of 3 x 1 cm size up to the vertical flesh on the left side of the abdomen parallel to the navel, penetrating 7 cm inwards into the abdominal cavity. This wound cutting through the skin, flesh had cut through the lower part of the spleen, whose size was 5 x 3 cm crosswise. The abdominal cavity was filled with about 300 ml of blood. A similar wound was present 3 cm from this wound. There was a deep wound measuring 2 x 1 cm deep in the flesh at the base of the wound was 3 cm.

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(v) Injury No. 5 Contusion There was a horizontal wound measuring 3 x 2 cm over the upper part of the left eye.

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Injury Nos. 1 and 4 were caused by a sharp and pointed weapon and injury Nos. 1 and 4 were sufficient to cause death in the normal course of nature. There was red coloured ecchymosis around the injury.

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According to opinion of Dr. Shivnarayan Manjhi (PW-18), the deceased died due to excessive bleeding and shock caused by injuries in the chest and abdomen. The death was homicidal in nature. The period of injuries inflicted on the deceased's body was within 12 hours before death. The period of death of the deceased was within 24 hours of his postmortem. The postmortem report is Ex. P-21.

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The learned trial Court relying upon the statement of Dr.Shivnarayan Manjhi (PW-18) and after going through the postmortem report Ex.P-21, has clearly come to the conclusion

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that death of deceased M. Sai Kiran was homicidal in nature. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellants. We hereby affirm the said finding.

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Now the question becomes important whether the murder of M.Sai Kiran was committed by the accused by stabbing the deceased with a knife in furtherance of the common intention formed by the accused Rudra Sahu?

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In this regard, Ayush Singh Dhruv (PW-3) has stated that he knows and recognizes the accused and the deceased Sai Kiran. The deceased was his friend, who died on 22.02.2020. On the date of the incident, he was standing near Chinna Paan Palace in Sanyasi Para on his scooty in the evening. At the same time, Sai Kiran was coming with grocery items in his Luna Axel and said that he has to go for a haircut, he will come after keeping the items. He was waiting for him, then after a while, when Sai Kiran came, both of them left to go to Rupesh Salon located near the water tank in Khamtarai and on the way, near the garden, they met their friends Aditya Tiwari and Raju Sharma who had come on a scooty. To go to the salon, all four of them left in their respective vehicles, when at the turn near the water tank, the accused Sonu Chauhan and Rudra were coming on a motorcycle and cut them off, then he told Rudra and Sonu to drive carefully.

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After that both the accused got down from the motorcycle and started arguing with those people. After this when they were leaving to go to the Salon, then accused Rudra and Sonu said that you guys come forward, ignoring this, they reached Rupesh Salon, dropped Sai Kiran there and left for the ATM. At the same time, a little ahead of Rupesh Salon, near the cobbler shop in main road, Khamtarai, accused Rupesh, accused Sonu Chauhan and accused Bhushan Nishad came on the same motorcycle and after getting down from the motorcycle, accused Bhushan started beating him and hit him on the chest with a marble stone. To save his life, he hid in a lane in front of the cobbler shop. After some time, he reached the salon and met his friends Aditya and Raju. Sai Kiran came out of the salon and they were leaving to go home, when the accused came on a motorcycle and started beating them. Accused Bhushan beat him with his hands. Accused Sonu Chauhan was fighting with Aditya and Raju with his hands and fists and accused Rudra hit Sai Kiran with the knife he was holding. Accused Bhushan was not letting him go near Sai Kiran. Due to the knife attack by accused Rudra on Sai Kiran, Sai Kiran got injured in his waist and chest due to which Sai Kiran lay down on the spot. After this the accused fled from the spot. Then they took Sai Kiran along with another friend Rahul, Aditya's elder brother Sandeep on their scooter to Jethani Hospital where the hospital staff did not treat him, then Sai Kiran was brought to Narayana Hospital for treatment. At that time his mother Savitri called him on mobile and informed that Sai Kiran had died during

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treatment in Narayana Hospital. He had gone with Aditya to Khamtarai police station and got the incident report registered as Ex.P-5. The police came to the spot and made a map of the spot. The police had got his injuries treated in the district hospital.

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Raju Sharma (PW-7) has stated that about three years ago, in the evening, he was going to Khamtarai with his friend Aditya to withdraw money from the ATM. On the way, Ayush and Sai Kiran met him near Chinna grocery shop and told him that they were going to the salon. After this, the accused met him near Khamtarai water tank and at that time they were drunk and were driving the car in a haphazard manner, on which he asked the accused that how are you driving Ghazi, then there was an argument between both the parties and the accused asked him to meet ahead. The witness further states that he left M. Sai Kiran in the salon and came to the ATM to withdraw money, then the accused came and started beating Ayush, him and Aditya, then they escaped and ran away separately and Soolan went to M. Sai Kiran and told him about the incident and asked him to go home. At the same time, the three accused came there and accused Bhushan caught M. Sai Kiran and accused Rudra stabbed him with a knife at many places. During this, Sonu Chauhan was stopping them, due to which they were scared. Thereafter he and his friends started running here and there and the accused stabbed M. Sai Kiran and ran away. The witness further stated that thereafter his friend Rahul M Sai Kiran was picked up by his

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sister-in-law and taken to the hospital. When they followed her, the doctor in Khamtarai refused to admit her, so they took Sai Kiran to Narayana Hospital where the doctor said that M Sai Kiran had died.

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Aditya Tiwari (PW-2) has stated that he knows the accused. He may also know M. Sai Kiran, who has died. He also knows Ayush Singh. He and Ayush were going to Khamtarai ATM on 22.02.2020 in the evening in his Activa No. CG 04LU 7481. Immediately after the said statement, the witness has stated that he was going to Khamtarai ATM on the said date in his said Activa not with Ayush but with Raju Sharma. They met M. Sai Kiran and Ayush, who were in their Activa, near the garden. On being asked by them, Ayush said that they were going to the saloon and he said that he was going to the ATM and let us go together. Thereafter, he and Raju Sharma in their Activa and M. Sai Kiran and Ayush in their Activa went together to the ATM. They started going towards Khamtarai. As soon as they reached near the water tank, the accused came on a bike, cut their Activa and went ahead, then they stopped them and asked how are you cutting. The accused were arguing and abusing them regarding this matter. During the argument the accused were saying that they will see you people ahead. Then they dropped Sai Kiran at Rupesh Salon in Khamtarai and after that he, Raju Sharma and Ayush Singh all three went to the ATM on the same Activa. When they reached Khamtarai near Mahesh Medical, the accused

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stopped their bike in front of their Activa and got down and accused Rudra Sahu started beating Raju Sharma. Accused Bhushan was beating Ayush and accused Yogesh alias Sonu started beating him. Due to the beating by the accused, he got injuries near his ear. Ayush got injured on his right shoulder. Accused Yogesh alias Sonu hit him with the bike’s key and accused Bhushan hit Ayush with brick and stone. Due to the beating by the accused, they ran and hid out of fear and the accused left from there, then all three of them went to Rupesh Salon from the spot and told M. Sai Kiran there that the accused had fought with them and asked her to come home.

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The witness further stated that as soon as they were leaving Rupesh Salon to go home, the accused again came there on bike and started beating them again. During that time, accused Rudra Kumar Sahu took out a knife that he had with him and stabbed M. Sai Kiran, due to which he got injuries on his left chest and left stomach. While accused Rudra Kumar Sahu was stabbing, accused Yogesh alias Sonu was holding M. Sai Kiran. When they tried to intervene, accused Bhushan was not letting them go near him and was stopping them from intervening and was pushing them. After accused Rudra Kumar Sahu stabbed M. Sai Kiran, all the three accused fled from the spot near Rupesh Salon on their bike. After that they took M. Sai Kiran on their Activa to Jethani Hospital in Khamtarai for treatment from where M. Sai Kiran was referred by the doctor to Narayana Hospital for treatment. After

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this they went to Khamtarai police station and registered a report of the incident. When they were registering the report, at the same time they got the news that M. Sai Kiran had died in Narayana Hospital. The police of police station Khamtarai had prepared the scene map Ex.P.2 in front of him. The police had seized blood stained bricks and gravel from place of incident i.e. near Rupesh Salon on 22.02.2020 in his presence and prepared seizure sheet Ex.P.-3. In his presence the police had seized the knife used in the incident and a shirt stained with blood from the accused Rudra alias Rahul and prepared seizure sheet Ex.P.4. The police took him to the district hospital for medical treatment after the assault. M. Sai Kiran died as a result of the injuries he sustained.

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The eyewitnesses of the incident, Aditya Tiwari (PW-2), Ayush Singh Dhruv (PW-3) and Raju Sharma (PW-7) have been cross examined in detail by the defence but their statements in the cross examination have remained unrefutable. It is true that during the cross examination of the said three prosecution witnesses, contradictory and omission related evidence has also come up but it does not have any adverse effect on the statements of these witnesses and the prosecution story and it is natural that the contradictions and omissions which have come up in the cross examination of the said three will be noticed by any person having knowledge of law. Such contradictions and omissions are likely to arise during cross-examination by counsel.

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Apart from this, on behalf of the defence, accused Rudra alias Rahul has given his statement as a defence witness. He has stated in his statement that on 24.02.2020, he was going towards Khamtarai with Sonu in an Activa at 5 pm. At that time, some unknown people were drunk in a salon near Khamtarai water tank and two were in Activa. They cut the bike on which he asked those people to drive properly, then they started abusing him, then he stopped them from abusing. There was a dispute between them on this. After this, he went with Sonu from near the water tank. The prosecution gets support from the statements of this defence witness that on the date of the incident, there was abuse and argument with the accused and prosecution witnesses Aditya, Ayush and Raju Sharma and deceased M. Sai Kiran near the water tank Khamtarai on the issue of cutting the bike and the present incident happened in the subsequent process in relation to this dispute.

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Regarding the memorandum and seizure proceedings of the accused, the investigating officer of the case, Kamal Narayan Sharma, Sub-Inspector PW-14, stated that he had taken the accused Rudra Sahu in custody in front of witnesses and after questioning him about the incident, had recorded memorandum Ex.P-14. The accused Rudra Kumar had stated in his memorandum statement that the knife with which he had killed a man named Sai Kiran, he had hidden it in his house and would get it recovered. On the presentation of the accused Rudra

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Kumar Sahu, he had seized a blood-stained sharp knife, the length of the blade of which was 6.5 inches, the length of the handle was 4.5 inches, total 11 inches and a T-shirt with full sleeves on which blood-like stains were visible, and had sealed it and prepared seizure sheet Exhibit P-11.

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The said witness further stated that he had recorded memorandum Ex.P-15 after taking accused Yogesh Bharti alias Sonu in custody in front of witnesses and questioning him about the incident. Accused Yogesh Bharti alias Sonu had stated in his memorandum that the motor cycle used in the incident bearing registration number CG 12 AY 8183 is kept at home and he will get it recovered. On being presented by accused Yogesh Bharti alias Sonu, he seized a white and black colour motor cycle bearing registration number CG 12 AY 8183 and seizure memo Ex. P-12 was prepared by him. He took accused Bhushan Nishad in custody in front of witnesses and after questioning him about the incident, recorded memorandum Ex.P-16. This accused had stated in the memorandum statement that he had thrown the stone with which he had beaten up the accused there and would show it after going. On being presented by accused Bhushan Nishad, he seized a stone weighing about 2 kg and sealed it and prepared seizure memo Ex.P-13.

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Witness Sandeep Tiwari (PW-6) related to the memorandum and seizure of the accused states that he knows the accused who are from his locality. In his presence the police did not question the

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accused. In his presence the accused did not tell the police anything regarding the incident. In his presence the police seized a knife from accused Rudra. The police seized a white coloured motor cycle from accused Sonu alias Yogesh. The seizure memo of the knife is Ex.P-11 and the seizure memo of the motor cycle is Ex.P-12. In his presence, the police did not seize any item from accused Bhushan, although his signature is on the seizure memo Ex.P-13. The memorandum statement of accused Rudra Kumar is Ex.P-14 and the memorandum statement of accused Sonu alias Yogesh is Ex.P-15 and the memorandum statement of accused Bhushan Nishad is Ex.P-16.

¶100

The said witness was declared hostile by the prosecution and when prompted by the question, he accepted the suggestion that he knew the deceased M. Sai Kiran, who died due to stabbing. He has also accepted that in connection with this murder incident, accused Rudra Kumar Sahu, accused Yogesh Bharti alias Sonu and accused Bhushan Nishad were questioned by the police and during the interrogation accused Rudra Kumar told the police that he had killed a person named Sai Kiran with a knife and had hidden the knife in his house. It is also accepted that the knife mentioned by accused Rudra Kumar was seized by the police in his presence on his indication. It is also accepted that during interrogation accused Yogesh Bharti alias Sonu told him that after killing Sai Kiran with a knife, they had fled on their Pulsar motor cycle and had kept the motor cycle in their house. On the

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indication of accused Yogesh Bharti alias Sonu, the police had seized a Pulsar motor cycle from his house in his presence. He has also accepted the suggestion that when the police questioned accused Bhushan Nishad in his presence regarding the incident, accused Bhushan had told the police that three boys were found near Mahesh Medical and then Sonu and Rudra got down and beat those boys and during that time Bhushan also got down to help them. This witness has also accepted the suggestion of the prosecution that in his presence, accused Bhushan Nishad had also told the police during interrogation that accused Bhushan had beaten one of those three boys with a brick lying there. In his presence, the police had seized the stone from accused Bhushan.

¶103

Thus the statements of the Investigating Officer Kamal Narayan (PW-11) and independent witness Sandeep Tiwari (PW-8) support the memorandum of the accused and accordingly the seizure memo Ex.P-11 to Ex.P-16 and in their cross-examination, no such fact or evidence has come to light that the accused did not give statement before the Investigating Officer and this witness, nor any item was seized from them. In such a situation, the fact of the memorandum and seizure memo Ex.P11 to Ex.P-16 is found to be proved against the accused.

¶104

In the context of the arguments of the defence, the question of accused Bhushan not being present in the dispute near Khamtarai water tank is that in this regard, no such fact or

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evidence has been presented by the defence that Bhushan was not present in the subsequent events. Apart from this, accused Bhushan has not challenged the report written against him and the arrest made and got it cancelled, nor has he produced the statement of any person around the scene of the incident or CCTV footage. From which it can be concluded that accused Bhushan was not present at the spot at the time of the incident. As far as the question of prosecution not producing the statement of independent witnesses around the scene of the incident is concerned, then in this regard, the defence has not been able to raise any kind of distrust or doubt in the statement given by Aditya Tiwari (PW-2), Ayush Singh Dhruv (PW-3) and Raju Sharma (PW-7) who are eyewitnesses of the incident and injured and the statement made by them before the Court has not been able to raise any kind of distrust or doubt by the defence. Apart from this, there is no fact on record about any previous enmity or animosity between the said three witnesses and the accused; hence, it cannot be said that the witnesses had any objection against the accused and to trap them, some kind of false story has been created and false statements have been made against them.

¶107

Thus, in this case, there is sufficient evidence against the accused from the evidence of prosecution witnesses, from which it is found that on 22.02.2020, the accused, in furtherance of common intention, assaulted and injured the deceased M. Sai

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Kiran and his friend and accused Rudra Sahu alias Rahul injured M. Sai Kiran by hitting him with a knife, as a result of which M. Sai Kiran died due to the injuries caused by the knife.

¶110

Now it has to be seen whether the accused had the intention to hurt the deceased M Sai Kiran, Ayush Singh, Aditya and Raju Sharma. In this regard, it is found from the prosecution story and the judicial evidence of the injured in the case that on the incident dated 22.02.2020, the incident took place between the accused and the deceased M Sai Kiran, Ayush Singh, Aditya Singh and Raju Sharma at three places, which shows that the accused had the intention to hurt the deceased and his companions by beating them, therefore in the first incident there was a dispute with regard to over cutting the vehicle and both the parties went in different directions, but the accused could not tolerate the said dispute and again when the friend of deceased Sai Kiran were going to the ATM after leaving him at Rupesh Saloon, the accused Ayush, Aditya and Raju Sharma beat him up. Thereafter when the three persons came back and went to Rupesh Saloon and informed the deceased, the accused again came there and beat up M. Sai Kiran, Aditya Tiwari, Ayush Singh and Raja Sharma with the intention of taking revenge of the first incident and to teach them a lesson, as a result of which M Sai Kiran died, which makes the intention and motive of the accused clear. Thus, the above circumstances show the general intention of the accused and their motive for the incident also becomes clear.

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Regarding the allegation of voluntarily causing hurt to Ayush Singh (PW-3), Aditya Tiwari (PW-2) and Raju Sharma (PW-7) by the accused in furtherance of common intention, Dr. Ashutosh (PW-6) has stated that on 20.02.2022 at 10.00 pm in District Hospital Raipur, when Aditya Tiwari was brought before him for examination by Police Constable No. 1563 of Police Station Khamtarai, on examination, he was able to find that there was a two by one cm size injury with scratches and redness on the left side of his face and in front of his face and in front of his left ear, which appeared to have been caused by a hard and blunt object. Report is Ex.P-9. On the same date, when Ayush Singh was brought by the same constable, this witness has examined him and found that there were many scratch marks on his right chest and shoulder whose length was 5 cm x 0.5 cm, 10 x 0.5 cm, 07 x 0.5 cm and 4 x 1 cm. Apart from this, there was a scratch mark of 4 x 0.5 cm size on the right arm which appeared to have been caused by a hard and blunt object and was of ordinary nature. The report is Ex.P-10. This witness has admitted in crossexamination that the injuries of Ex.P-9 and Ex.P-10 could have been caused by falling but the defence has not clarified where both the injured fell and what they fell on. No such fact or evidence has been presented which cannot be said that both the injured received injuries by falling.

¶113

Aditya Tiwari (PW2), Ayush Singh Dhruv (PW-3) and Raju Sharma (PW-7) have stated in their statements that when they

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were going to ATM after dropping deceased Sai Kiran at Rupesh Salon, the accused had assaulted them. Thereafter, the accused again assaulted deceased Sai Kiran and them near Rupesh Salon due to which they got injured, which is supported by medical evidence. Apart from this, defence witness accused Rudra Sahu has stated that on the incident date 20.02.2020, there was an argument, fight, abuse with deceased M Sai Kiran, Ayush, Aditya and Raju Sharma regarding cutting the vehicle near the water tank and due to the said argument, the accused had assaulted the said injured, which is supported by medical evidence and defence has not denied this in cross-examination. Thus, it is found from the prosecution evidence and medical evidence that on the date, time and place of the incident, the accused formed a common intention and in furtherance of it, beat up Aditya, Ayush and Raju Sharma and voluntarily caused hurt to them.

¶116

Thus, it is clear from the above evidence analysis that the prosecution has proved charges under Section 302/34 and Section 323/34 of the Indian Penal Code against the accused beyond reasonable doubt.

¶117

For the foregoing reasons, all the above-captioned appeals filed by the accused/appellants are dismissed . It is stated that the appellants are in jail, they shall serve out the sentence as ordered by the concerned trial Court.

¶118

Registry is directed to send a copy of this judgment to the

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concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶121

Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

¶122

Sd/Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Chandra

Bhushan Nishad v. State of Chhattisgarh

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What is this about?

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Bhushan Nishad v. State of Chhattisgarh

Case brief

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