C A V Judgment

Per Rajani Dubey J.

1. The present appeal is directed against the judgment of conviction and order of sentence dated 06.08.2024 passed by the learned 1^st Additional Session Judge, Mungeli in ST No.49/2011, whereby the appellant has been convicted and sentenced in the following manner:-

Conviction Sentence Section 148 of IPCRI for 3 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 1 month.

Section 307/149 ofRI for 7 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 6 IPC months.

Section 302/149 ofLife imprisonment and fine of Rs.500/-. In default of payment of fine amount, additional RI IPC for 6 months.

Section 27 of ArmsRI for 7 years and fine of Rs.500/-. In default of payment of fine amount, additional RI for 1 Act month.

2. The prosecution case, in brief, is that on 17.07.2011, the main accused Rajesh, the present appellant along with other co- accused persons Baliram, Bhupesh, Gayaram, Dayaram and Mahesh Sahu assaulted the deceased Devendra Sahu and the injured Goverdhan with club, stick and shot gun fire on them, as a result of which Devendra Sahu died, whereas Goverdhan received severe injuries, thereafter the matter was reported to the police station concerned and after investigation, the accused persons were arrested, whereas the present appellant and the co-accused Mahesh Sahu were absconding at the time of filing charge sheet by the police before the Magistrate concerned. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and sentenced him, as mentioned in para 1 of the judgment.

3. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is bad in law as well as facts available on record. There is delay in lodging the FIR and the FIR was lodged against 4 accused persons, whereas final report was filed naming 6 accused persons improving the story. Dehatinalisi (Ex-P/14) is said to have been drawn at school as deposed by K. K. Sahu, Investigating Officer, but according to PW-8, it was drawn at the alleged place of occurrence. There is no memorandum under Section 27 of the Evidence Act with regard to seizure of 12 bore gun at the instance of the co-accused Baliram from his house. The gun was never produced before the Trial Court nor it was sent for conducting forensic test. He further submits that there are material omissions and contradictions in the statements of Goverdhan Sahu (PW-2) and the eye witness Punit Ram Dhruw was also not examined. The wife of Goverdhan namely Anita (PW-1) stated that her husband Goverdhan, Devendra and Komal had gone to the field and on being informed by Punaram (PW-8), she went to the place of occurrence, whereas she did not name Punit Ram in her statement, who according to Goverdhan, was also accompanied Goverdhan. She also did not name the present appellant that he shot gun fire, whereas the Goverdhan stated that the present appellant shot gun fire, as such the statements of both these witnesses are contradictory. Therefore, the appeal deserves to be allowed and the appellant be acquitted of the aforesaid charges. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Sukhwant Singh vs State of Punjab, reported in (1995) 3 SCC 367, Harbeer Singh vs Sheeshpal and others reported in (2016) 16 SCC 418, A. T. Mydeen and another vs Assistant Commissioner, Customs Department, reported in (2022) 14 SCC 392, Allarakha Habib Memon etc vs State of Gujarat, reported in 2024 SCC Online SC 1910, Khema @ Khem Chandra and others vs State of Uttar Pradesh, reported in (2023) 10 SCC 451 and P. Sasikumar vs State rep. by the Inspector of Police, reported in 2024 SCC Online 1652

4. Per contra, learned State counsel supports the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt about the assault by the ap