BHARATLAL BHANDARI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal is directed against judgment dated 24 -6 -2005 passed by 2nd Additional Sessions Judge (FTC), Mungeli in Sessions Trial No. 268/2004. By the impugned judgment, accused/appellant Bharatlal Bhandari has been convicted under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/ -, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Case of the prosecution, in brief, is as under:

(2.) SHRI Arun Kochar, learned counsel for the appellant argued that Alen (PW -2), Neelchand (PW -5) and Rekhchand (PW -1) did not witness the incident. Had they witnessed the incident, the same would have been mentioned in the FIR (Ex. P -1). The FIR (Ex. P -1) was lodged by Rekhchand (PW -1). In the FIR (Ex. P -1), it is mentioned that Neelchand (PW -5) had told Rekhchand (PW -1) that deceased Radheshyam was killed by some unknown person. It is further mentioned therein that Alen (PW -2), Udayram (PW -7), Peelabai (PW -12) and Kaushilyabai had met Rekhram (PW -1) on the way, but they did not tell him name of the assailant. Had they witnessed the incident, they would have disclosed name of the assailant to Rekhram (PW -1), and Rekhram (PW -1) would have mentioned the name of the assailant in the FIR (Ex. P -1). He further argued that evidence of Peelabai (PW -12) regarding oral dying declaration is not reliable. He further argued that Omshiva (PW -3) is a child witness. He is a tutored witness. His evidence is not cogent and reliable, therefore, his evidence cannot be based for conviction. Alen (PW -2) and Neelchand (PW -5) are not eyewitnesses. The prosecution did not prove the oral dying declaration. Therefore, the solitary evidence of child witness Omshiva (PW -3) is not reliable and cannot be based for conviction. Hence, the appellant deserves to be acquitted.

(3.) WE have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 268/2004. The conviction of the appellant is mainly based on the testimonies of Omshiva (PW -3), Alen (PW -2), Neelchand (PW -5), Chandrikabai (PW -10) and Bhanchandrika (PW -11).