2024:CGHC:32750 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1091 of 2003 Judgment reserved on : 21.06.2024 Judgment delivered on : 28.08.2024 Sanjay Yadu, S/o Jhula Ram Yadu, aged about 20 years, R/o Ravanguda, PS Arjuni, Distt. Dhamtari (C.G.)

Digitally signed by RAMAKANT Appellant NIRALA versus State Of Chhattisgarh through PS Arjuni, Distt Dhamtari (C.G.)

Respondent For Appellant : Mr. Paras Sahu, Advocate on behalf of Mr.

Vinod Lal Chandani, Advocate For Respondent : Mr. Ajay Kumrani, PL Hon’ble Smt. Justice Rajani Dubey

C A V Judgment

1. The present appeal is directed against the judgment of conviction and order of sentence dated 08.10.2003 passed by the learned Additional Session Judge, Dhamtari in Session Trial No.62/2003, whereby the appellant has been convicted and sentenced in the following manner:-

Sr.No. Conviction Sentence

1.	u/S 307 of IPC	RI for 5 years and fine of Rs.1000 and in default of payment of fine, additional RI for 2 months
2.	u/S 450 of IPC	RI for 3 years and fine of Rs.500 and in default of payment of fine, additional RI for 1 month
3.	u/S 342 of IPC	RI for 1 year and fine of Rs.500 and in default of payment of fine, additional RI for 1 month

All the sentences shall run concurrently.

2. The prosecution case, in brief, is that the on 10/12/2002 at about

5.00 P.M. the complainant Girwar Nirmalkar was cleaning his house after returning from school at that time accused Sanjay reached there. Girwar had asked him when he is going to Raipur, the accused Sanjay did not answer his question and after some time the accused Sanjay started saying "I shall Kill You". Accused Sanjay closed the door of the house of complainant Girwar. The complainant proceeded to open the door and asked accused why he has closed the door, all of sudden the accused Sanjay wrapped a handkerchief around the neck of the complainant Girwar and pressed his mouth with his palm as a result of which the complainant became unconscious and fell down. After some time the witness Naresh Yadav came for milking the cow, who knocked at the door and shouted, but there was no reply from inside the house. Listing to noise from inside the house, Naresh Yadav entered the house from back door and found the body of complainant lying on the ground unconscious. The incident was reported to the parents of the complainant then the complainant was brought to Masihi Hospital, Dhamtari for treatment. Thereafter said incident was reported to Arjuni police Station, Distt. Dhamtari. The police registered the case as case no.139/2003 under section 307,342,450 of I.P.C. and submitted the charge sheet before J.M.F.C. Dhamtari. The Additional Session Judge, Dhamtari, after trial has convicted the appellant under aforesaid sections and directed to run all the sentences concurrently.

3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The judgment of the trial court is bad-in-law and facts both, hence deserves to be set aside. The trial court has not appreciated the facts on record and convicted the appellant on the basis of conjecture and surmises. The trial court has erred in not appreciating the testimony of seizure witness P.W.-13 Shiv Kumar and P.W.-14, Mansharam, who have denied that the police has seized any handkerchief from the appellant. In the para 20 of the judgment of the trial court it is clearly stated that police had shown the P.W.-14, Mansharam a red coloured handkerchief and seized white coloured handkerchief, but the learned Trial Court did not appreciate the statements of the witnesses in its true perspective and gave wrong finding.

Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Apex Court dated 28.11.2023 passed in CRA No.3619/2023 in case of Sivamani and another vs State represented by Inspector of Police

4. Per contra, lear

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