1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 180 of 2020 •

Siyaram Sirdar S/o Madhau Ram Aged About 31 Years R/o Village Gokulpur, Police Station Ramanujnagar, Presently Residing Village Koteya, Police Station Premnagar, District Surajpur, Chhattisgarh ---- Appellant Versus •

State of Chhattisgarh Through Station House Officer, Police Station Premnagar, District Surajpur, Chhattisgarh ---- Respondent For Appellant : Shri Gyan Prakash Shukla, Advocate For Respondent/State : Shri Ratan Pusty, Government Advocate Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Shri Justice Radhakishan Agrawal Judgment On Board Per Goutam Bhaduri, J

16/02/2024 Heard.

1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure 1973 is directed against the impugned judgment dated 05/11/2019 passed by the Sessions Judge, Surajpur, District Surajpur, C.G. in Sessions Trial No.66/2018 whereby the appellant has been convicted under Section 449 & 302 of IPC and sentenced to undergo R.I. for 10 Years & Life Imprisonment, respectively and to pay a fine of Rs.500/- for each offence and in

2 default of payment of fine amount further R.I. for 2 months for each offence was ordered.

2. The prosecution case, in brief, is that Dhirsai (PW-1) made a report on

22/06/2018 at Police Station Premnagar that his mother-in-law Rameshwari Kotari went to field to work and while she was taking rest he went there to provide food wherein he saw that the appellant has assaulted his mother-in-law Rameshwari Kotari by an axe on his head in a hutment and thereafter after closing the hutment he was running away. When he went inside the hutment he saw that his mother-in-law was unconscious and injured. Having asked, she could not narrate anything subsequently she succumbed to such injuries. The motive was attributed that there was a land dispute in between them. The dead body was subjected to postmortem wherein the nature of death was reported to be homicidal. The appellant thereafter was caught and an axe was recovered at his instance and it was sent for FSL, however, the blood group in the axe could not be confirmed and on the basis of primary eye witness statement Dhirsai (PW-1) and the merg statement (Ex. P/1) the appellant was convicted.

3. Shri Gyan Prakash Shukla, learned counsel for the appellant, would submit that gross injustice has occurred in this case for the reason that the conviction which is based on the testimony of eye witness, he never disclosed this fact that he has seen the appellant assaulting his mother- in-law in his police statement recorded under Section 161 of Cr.P.C., however, in the Court statement he made such statement which made the basis of conviction. He would further submit that the person who

3 ran away from the place of happening cannot be attributed to his crime which may be a strong circumstances but it cannot be replaced by evidence as proved. He would further submit that because of the fault of the advocate or the Court, the appellant cannot be made to suffer life imprisonment. He placed his reliance in the law laid down by the Supreme Court in the matter of Munna Pandey Vs. State of Bihar {Criminal Appeal No.1271-1272 of 2018, 2023 LiveLaw (SC) 744} and would submit that under the circumstances when the confrontation of the statement made to the police under Section 161 Cr.P.C. was not made it cannot be relied upon but the same would result into gross injustice and denial of fair trial. He would further submit that the trial Court Judge should also have seen this fact and cannot attribute a role of a mute spectator. Therefore, the case needs to be remanded back to the trial Court for fresh adjudication for giving opportunity to re- examine the witness Dhirsai (PW-1) to confront him with the statement made under Section 161 Cr.P.C. and the Merg as the different story was narrated and thereafter the afresh adjudication may be done as the circumstatial evidence though may exist but it has not been prove