CHANDRA SEKHAR @ BANTU Vs. STATE OF M.P

JUDGEMENT

(1.) This appeal is directed against the judgment dated 28th of September, 1996 passed in Sessions Trial No. 382/95 by the Third Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted u/ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- with default sentence of imprisonment for 1 year.

(2.) The facts, briefly stated, are as under-Deceased- Hari Udiya and Kaliya (PW-8) were employees of the Caterer engaged for supply of food in Bokaro Hostel situated in Sector-4, Bhilai. In the intervening night of 25th - 26th of August, 1995, they were sleeping on two benches in the premises of the hostel. The case of the prosecution is that in the late night, the appellant and a co-accused (who could not be traced) came there and assaulted the deceased by some sharp edged weapon. In fact, the assaults were given by co-accused and the appellant was holding the deceased at the time of assault. The deceased received multiple serious injuries and succumbed to those injuries. The incident was witnessed by Kaliya (PW-8). Kaliya (PW-8) did not disclose the incident to anyone, therefore, the First Information Report (F.I.R. - Ex.-P/1) lodged by Krishna Kumar Sharma (PW-1 - Hostel Manager) does not contain the name of the assailants and it was lodged against unknown person. Inquest (Ex.-P/10) was prepared on the dead body of the deceased. Dr. P.C. Deshmukh (PW-3) performed autopsy and gave his report (Ex.-P/7). According to himr. cause of death was shock and haemorrhage as a result of injury to the heart and it was homicidal in nature. Dog-party was called. The dog went to the house of the appellant, therefore, the appellant was taken into custody and on 30.8.95 his memorandum statement (Ex.-P/3) u/s 27 of the Evidence Act was recorded and a shirt was seized from his possession vide seizure memo Ex.-P/4 on the pretext that it was containing blood like stains. On 27.8.95, 161 Cr.P.C. statement of Kaliya (PW-8) was recorded. On 6.9.95 a Test Identification Parade (T.I.P.) was conducted by Executive Magistrate, G.R. Morey (PW-4). In the T.I.P., Kaliya (PW-8) identified the appellant. The T.I.P. memo is Ex.-P/9. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Raipur, from where, a report was received. According to F.S.L. report blood stains were found on the shirt (Article-E) seized from the possession of the appellant. The articles were sent for Serologist Examination, but no report could be filed. The case of the prosecution was mainly based on eye-witness account of Kaliya (PW-8) and the circumstance of seizure of blood stained shirt from the possession of the appellant. The learned Sessions Judge relied on the testimony of Kaliya (PW-8) and convicted & sentenced the appellant as above.

(3.) Mr. M.D. Dhote, learned counsel appearing on behalf of the appellant, argued that the sole testimony of Kaliya (PW-8) was not reliable; he did not disclose the incident immediately to the Hostel In-charge; the T.I.P. was not properly conducted as Kaliya has seen the appellant; it was not proved that the blood stains found over shirt of the appellant were of human blood, therefore, conviction based on above evidence cannot be sustained.