Balak Das @ Bhuru Vs State Of Chhattisgarh

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Page No.1 of 12 IN CRA-617-2016

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Digitally SAIFAN signed by KHAN SAIFAN KHAN

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2026:CGHC:414-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 617 of 2016

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[Arising out of judgment of conviction and order of sentence dated 06.04.2016, passed in Sessions Trial No.10 of 2014 (State of Chhattisgarh v. Bhuvan Lal and 06 others) by the 9^th Addl. Sessions Judge, Raipur (CG)]

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Balak Das @ Bhuru S/o Shri Bhuwan Aged About 26 Years R/o Satnami Para, Behind Vyayaam Shaala, Gudhiyari, Raipur Chhattisgarh

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... Appellant/ (On Bail)

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Versus State of Chhattisgarh, through District Magistrate, Raipur Chhattisgarh

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... Respondent [Cause-title taken from Case Information System (CIS)] ----------------------------------------------------------------------------------------------For Appellant : Mr. Maneesh Sharma, Advocate For Respondent-State : Mr. Rahul Tamaskar, Govt. Advocate -----------------------------------------------------------------------------------------------

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Division Bench

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

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Judgment on Board (05.01.2026)

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Sanjay K. Agrawal, J

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(1) Invoking criminal appellate jurisdiction of this Court, the sole appellant herein has preferred this criminal appeal under Section 374(2) of Cr.P.C., calling in question the legality, validity and correctness of the impugned judgment of conviction and order of

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sentence dated 06.04.2016, passed in Sessions Trial No.10 of 2014 (State of Chhattisgarh v. Bhuvan Lal and 06 others) by the 9^th Addl. Sessions Judge, Raipur (CG), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/- and, in default of payment of fine, sentenced to undergo additional rigorous imprisonment for 06 months.

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(2) The case of the prosecution, in short, is that on 04.11.2013, at about 09:00 PM, at Mukaam-Gudiyari, Satnami Para, Near Old Jaitkham, which comes within the ambit of Police Station Gudhiyari, District Raipur (CG), the accused-appellant herein alongwith other 06 acquitted co-accused, in furtherance of their common object, assaulted Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07), Shiv Kumar (PW-08) and Manoj (hereinafter referred to as the “deceased”) by means of wooden sticks, due to which, deceased- Manoj suffered grievous injuries and died, whereas Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) suffered simple injuries and, thereby, said to have committed the aforesaid offence.

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(3) It is further case of the prosecution that when the aforesaid incident was reported to the police by Smt. Vimla (PW-01), merg intimation (Ex.P/16) and FIR (Ex.P/01) were registered and wheels

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Page No.3 of 12 IN CRA-617-2016

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of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/04 and inquest proceedings were conducted vide Ex.P/05. Nazari Naksha was also prepared vide Ex.P/03. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. R.K. Singh (PW-13) and, as per PM report (Ex.P/14), it has been opined that cause of death is cardio-respiratory failure due to head injury and its complications. The appellant-accused was arrested vide Ex.P/26 and his memorandum statement was recorded vide Ex.P/09. Pursuant to the memorandum statement of the appellant, weapon of the offence i.e. wooden stick has been seized vide Ex.P/10. Injured witnesses were medically examined and their MLC reports are Ex.P/17 to Ex.P/19 & Ex.P/34. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellants and other acquitted accused persons in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 36 witnesses and exhibited 15 documents, whereas the appellantaccused in support of his defence neither examined any witness nor exhibited any documents.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Maneesh Sharma, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the testimony of eyewitness, namely, Smt. Vimla (PW-01) is not reliable and she has not seen the incident of appellant assaulting the deceased. Furthermore, injured eye-witnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) have not supported the case of the prosecution and they have neither stated that Smt. Vimla (PW-01), who is mother of Nitesh Bharti (PW-05), was present on the spot at the time of incident nor they have been declared hostile by the prosecution. As such, the present appeal deserves to be allowed and the appellant is liable to be acquitted of the said charge on the basis of benefit of doubt.

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(7) Per-contra, learned State counsel supported the impugned

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judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Thus, the present appeal deserves to be dismissed.

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(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(9) The first and foremost question is as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/14), wherein it has been opined that death of the deceased has been opined to be cardio-respiratory failure due to head injury and its complications, which is duly proved by the statement of Dr. R.K. Singh (PW-13). Accordingly, taking into consideration the postmortem report (Ex.P/14) and the statement of Dr. R.K. Singh (PW-13), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(10) Now, the next question would be whether the accusedappellant herein is the author of the crime in question or not?

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(11) In the case at hand, the conviction of the appellant herein is premised on the testimonies of Smt. Vimla (PW-01) and other injured eye-witnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08). However, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) have not supported the case of the prosecution and they were not even declared hostile by the prosecution and, furthermore, they have not stated or established the presence of Smt. Vimla (PW-01) on the spot at the time of incident. Furthermore, Smt. Vimla (PW-01), who is mother of Nitesh Bharti (PW-05), in her statement before the Court at Para-11 has clearly admitted that she has not seen any incident of marpeet with Shiv (PW-08) and Manoj (deceased). At Para-12, she further stated that she is not aware about the names of any of the accused persons and she has not informed the name of any accused to the police at time of lodging the FIR. Even, in Para-15, she also stated that she did not know the name of the appellant herein, but on the basis of information gathered in the police station she named the appellant herein to be the person who assaulted the deceased. Smt. Vimla (PW-01) has also gone to the extent of stating that the statement mentioned in the FIR (Ex.P/01) has not been made by her. Thus, in view of above scrutiny of the testimony of Smt. Vimla (PW-

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01), the same cannot be held to be reliable at all in order to convict the appellant herein. We hereby hold accordingly.

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(12) So far as the evidence of injured eye-witnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW07) and Shiv Kumar (PW-08) are concerned, according to their MLC reports (Ex.P/17 to P/19 & Ex.P/34) all of them have suffered simple injuries and they have not established the presence of Smt. Vimla (PW-01) on the spot at the time of offence. However, according to the statement of Smt. Vimla (PW-01) the assault was made by Kamal @ Pankaj @ Neeraj (A-4), who has been acquitted by the learned trial Court. Even otherwise, Nitesh Bharti (PW-05) in para-06 of his statement has clearly admitted that he has not seen any incident of appellant/accused persons assaulting the deceased and, similarly, Krishna Kumar (PW-06) has also nowhere implicated the appellant herein to be the author of the crime. Purushottam Baghel (PW-07) has also stated that he has not seen the incident of appellant assaulting the deceased and, whereas, Shiv Kumar (PW-08) has clearly stated that upon being informed by the police, he is stating the names of the persons before the Court. As such, all injured eyewitnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) have not supported the case of the prosecution at all. However, interestingly, all the aforesaid injured eye-witnesses have not been declared hostile by the prosecution.

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Page No.8 of 12 IN CRA-617-2016

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(13) In this regard, the Supreme Court in the matter of Javed Masood and another v. State of Rajasthan1 by relying upon its earlier decision rendered in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) 2 has clear held that in absence of declaring a witness hostile by the prosecution, it was always open for the defence to rely on the statement of said witness and it will be binding upon the prosecution. As such, the statements of all injured eye-witnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) are binding upon the prosecution, who have neither supported the case of the prosecution nor declared hostile by the prosecution and, further, all the said witnesses have also not established the presence of Smt. Vimla (PW-01) on the spot at the time of incident. Even, Smt. Vimla (PW-01) has not stated that she has seen the incident of appellant assaulting the deceased on the date of offence.

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(14) The Supreme Court in the matter of Busi Koteshwara Rao and

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others v. State of Andhra Pradesh3 by relying upon the decision of Masalti v. State of UP4 has clearly held that when a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal test is that the conviction could be sustained only if it is

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1 (2010) 3 SCC 538

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2 (2005) 5 SCC 258

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3 (2012) 12 SCC 711

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4 AIR 1965 SC 202

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Page No.9 of 12 IN CRA-617-2016

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supported by two or more witnesses who give a consistent account of

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the incident in question and observed in Para-12 to 15 as under:

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“ 12. Even, as early as in 1965, a larger Bench of this Court in Masalti & Ors. vs. The State of Uttar Pradesh, AIR 1965 SC 202 considered about how the prosecution case is to be believed. The principles laid down in para 16 of the decision are relevant which is as under:-

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"16. Mr Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."

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It is clear that when a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large

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Page No.10 of 12 IN CRA-617-2016

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number of victims, the normal test is that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident in question.

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No doubt, in State of U.P. vs. Dan Singh and Others (1997) 3 SCC 747, a Bench of two-Judges, in para 48 has held that

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"48…. it would be safe if only those of the respondents should be held to be the members of the unlawful assembly who have been specifically identified by at least 4 eye- witnesses."

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We have already quoted the requirements for convicting an accused in a clash between two groups as per Masalti (supra) which is a larger Bench decision of this Court. In the light of the same, we reiterate and hold that when an unlawful assembly or a large number of persons take part in arson or in a clash between two groups, in order to convict a person, at least two prosecution witnesses have to support and identify the role and involvement of the persons concerned.”

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(15) Similarly, in the matter of Ranvir Singh and others v. State of Madhya Pradesh5 the Supreme Court in Para-39 observed as under:

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“ 39. This Court in Binay Kumar Singh v. State of Bihar [Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 : 1997 SCC (Cri) 333] , observed that : (SCC p. 296, para 31)

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“31. … There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same, when the size of the unlawful assembly is quite large (as in this case) and many persons would have witnessed the

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5 (2023) 14 SCC 41

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incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. In Masalti v. State of U.P. [Masalti v. State of U.P., 1964 SCC OnLine SC 30 : AIR 1965 SC 202 : (1964) 8 SCR 133] a Bench of four Judges of this Court has adopted such a formula. It is useful to extract it here : (SCC OnLine SC para 16)

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‘16. … where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident.’ ”

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(16) In view of the aforesaid discussion, since all injured eyewitnesses, namely, Nitesh Bharti (PW-05), Krishna Kumar (PW-06), Purushottam Baghel (PW-07) and Shiv Kumar (PW-08) have not supported the case of the prosecution at all and even they have not been declared hostile by the prosecution, therefore, their statements are binding upon the prosecution and, further, all the said witnesses have also not established the presence of Smt. Vimla (PW-01) on the spot at the time of incident and upon careful scrutiny of the statement of Smt. Vimla (PW-01) in foregoing paragraphs we found that the same is not reliable and, more particularly, Smt. Vimla (PW01) has not at all stated that she has seen the incident of appellant herein assaulting the deceased on the date of offence at any point of time, we are unable to hold that the prosecution has been able to prove its case beyond all reasonable doubt and, in absence of which, the appellant is entitled to get benefit of doubt. The learned trial

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Court is unjustified in convicting the appellant for offence under Section 302 of IPC in light of the aforesaid evidence available on record. Accordingly, the conviction and sentence of the appellant for offence punishable under Section 302 of IPC, as imposed upon him by the learned trial Court, is hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. Since the appellant is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

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(17) Consequently, this criminal appeal is allowed to the extent indicated herein-above.

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(18) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any.

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sd/sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Balak Das @ Bhuru v. State Of Chhattisgarh

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Balak Das @ Bhuru v. State Of Chhattisgarh

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