AFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1001 of 2020

1. Mohd. Shamim Ansari S/o Late Mohd. Karim Aged About 31 Years Occupation- Agriculturist, Resident Of Village Batwahi (Khaspara), Police Station Lundra, District Surguja (Chhattisgarh), 2. Mohd Saddam Hussain Son Of Late Nabi Rasul Aged About 27 Years Occupation- Agriculturist, Resident Of Village Batwahi (Khaspara), Police Station Lundra, District Surguja (Chhattisgarh), ---- Appellant Versus • State Of Chhattisgarh Through The Police Station Lundra, District Surguja (Chhattisgarh), ---- Respondent For Appellant : Shri Pushkar Sinha, Advocate.

For Respondent : Shri Akhilesh Kumar, Govt. Advocate.

Hon'ble Shri Goutam Bhaduri &

Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment On Board Per Goutam Bhaduri, J

16/07/2024 :

1. This Appeal is directed against the judgment of conviction and order of sentence dated 29.10.2020 passed by the 1^st Additional Sessions Judge, Ambikapur, District Sarguja in ST No.45/2019 whereby the appellants have been convicted for commission of offence under Sections 364/34, 302/34 & 201/34 of the IPC and sentenced to undergo RI for Life with a fine of Rs.10,000/-; RI for life with a fine of Rs.10,000/- and to undergo RI for 3 years with a fine of Rs.5,000/- each, with usual default stipulations.

2. Prosecution case, in brief, is that both the appellants namely, Mohd.

Shamim and Mohd. Saddam were annoyed for the reason that some evidence was adduced by Mithlesh (deceased) against them in a criminal case. On 7.2.2019 at about 3 pm, both the appellants came on motorcycle to the house of the deceased and forcefully taken Mithlesh (deceased) on their motorcycle and subsequently abducted him, which was seen by Ramu Kurmi, Lalchand Kurmi and Harvansh Kurmi. Mithlesh (deceased) was searched, but he was not found and on the next day i.e. 8.2.2019, dead body of Mithlesh, aged about 15 years, was found near canal at NH-43. The accused/appellants were subsequently apprehended and after recording the statements and collecting evidence, charge sheet was filed by the prosecution.

3. During trial, the appellants abjured the guilt and claimed to be tried.

The prosecution examined as many as 12 witnesses and exhibited 44 documents including list of Articles along with certificate under Section 65 B(4)(c) of the Evidence Act to prove the call details. The defence adduced two witnesses. After hearing learned counsel for the parties and on the basis of material available on record, the trial Court has convicted and sentenced the appellants as mentioned in para-1 of this judgment.

4. (A) Learned counsel for the appellants would submit that the appellants have been falsely implicated in this case, as earlier animosity exists in between the family of the deceased and the appellants. He would further submit that so called eyewitnesses namely, PW-2 Lal Chand, PW-4 Ramnarayan @ Ramu & PW-5 Harvansh Singh are related witnesses and it is strange to presume that any independent witness was not available in the village. He would submit that according to the prosecution witnesses, the deceased was forcefully taken into motorcycle and was abducted and subsequently, his dead body was found. But in the instant case, the accused/appellants were neither present at the scene of occurrence nor have committed the offence, as they were present before the Sessions Court at Ambikapur to participate in a criminal proceeding which was pending.

(B) Learned counsel would submit that the defence witnesses namely, DW-1 & DW-2 have proved the fact that the appellants were present in the Sessions Court and they left the Court after 4 pm, and therefore they could not have reached the spot at the given time i.e. at about 3 pm. He further submits that the statements of witnesses would further show that the accused/appellants were not identified while they performed the alleged criminal act and, therefore, if false allegations have been attributed, the same cannot be ruled out. He would further submit that no