HEERALAL SAHU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal is directed against the judgment dated 28-6-2008 passed by Session Judge, Durg in Session Trial No.43/2006. By the impugned judgment, accused/appellant Heeralal Sahu has been convicted under Sections 397 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and imprisonment for life and to pay fine of Rs.500/-, in default, to further undergo rigorous imprisonment for three months. The sentences of imprisonment are directed to run concurrently.

(2.) Case of the prosecution, in brief, is as under: Padumlal Soni (PW-1), along with his son Sunil Soni (deceased), was running business of ornaments/jewelleries moving market to market. On 17- 10-2005, at about 7:00 A.M., the deceased went to Village Ruda for selling ornaments. Padumlal Soni (PW- 1) did not accompany him on account of bad weather. At about 3 P.M., when the deceased did not come back, Padumlal Soni (PW-1) went in his search to Bhilai, where somebody told him that he had seen the motor cycle of the deceased at Mansabhat Khar. Padumlal Soni (PW-1) went there. He saw that motor cycle of the deceased was lying in an agricultural field and his dead body was lying in another agricultural field. Many injuries were present over neck of the deceased and blood was oozing out. The ornaments-box was not found there. Earlier, the deceased had told him that whenever he had asked the appellant to refund the money of his brother Anil Soni, the appellant created dispute and threatened him of dire consequences. Village Kotwar Santosh Kumar Sahu lodged Merg Intimation (Ex.P- 4) and First Information Report (Ex.P-9) in Police Station Arjunda. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-1) to Panchas and prepared inquest (Ex.P-2) on dead body of the deceased. The dead body was sent for post mortem examination vide Ex.P-19. Dr. C.B.Prasad (PW-13) conducted autopsy on dead body of the deceased. He gave his report (Ex.P-20), in which, he found following injuries:

(3.) Shri Manish Upadhyay, learned counsel for the appellant argued that name of the appellant is not mentioned in the First Information Report (Ex.P-9). No date is mentioned in the list produced by Padumlal Soni (PW-1). Eye-witnesses Panchram Dewangan (PW-9), Birendra Kumar (PW-10) and Nand Kumar (PW-11) did not support the case of the prosecution. According to Devlal Sahu (PW-16) and Kushal Sahu (PW-17), when the said recovery was made, the appellant was not present there. This shows that the said recovery was made in absence of the appellant. The prosecution has failed to prove memorandum and recovery of ornaments from the appellant. Therefore, the finding of guilt recorded by the trial Court is not sustainable in the eyes of law.