SHYAM SUNDAR Vs. STATE OF C G

JUDGEMENT

(1.) These two appeals are being decided by this common order as both the appeals arise out of judgment of conviction and order of sentence dated 30th September, 2008 passed by learned Special Judge (under the provision of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Korea, in Special Case No. 13/06, whereby and where under the appellants in both the appeals have been held guilty of commission of offence alleged against them and sentenced as described below-

(2.) On the basis of the material contained in the charge-sheet, the learned trial Court framed charges on 29/08/05, in which, it was alleged that on 12/05/05 at 15:00 hrs. the appellants with common intention to cause death of Vijay Singh, who belonged to scheduled tribe, assaulted with the help of axe and club and caused his death and thereby committed offence punishable under Section 302/34 IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(3.) Assailing the correctness and validity of impugned judgment of conviction and sentence, learned counsel for the appellants argued that the evidence of sole eyewitness-Rangu (PW9) is not reliable and trustworthy. It is contended that this witness in para-11 of his testimony, has stated that at the time when Vijay died, he was sleeping in the house with his wife. Thus, he is a concocted witness. The statement of Rangu (PW9) suffers from serious contradictions and omissions. In the diary statement, no specific overt act was alleged against the appellants and there is improvement in the statement that Shyam Sundar caught hold of the deceased and Bhagirathi assaulted with the help of axe. It is also submitted that the witness has admitted that he suffers from weak eyesight and even according to the prosecution, the distance of the house of this witness from the place of incident is 200 yards. Therefore, the evidence of Rangu (PW9) is not at all reliable. Particularly, with regard to the involvement of Shyam Sundar, it has been submitted that in the Court statement, it has been stated for the first time that Shyam Sundar caught hold of deceased. The medical evidence proves that deceased sustained solitary incised wound. Therefore, the involvement of Shyam Sundar on the basis of so called eyewitness account Rangu (PW9) does not get support from the medical evidence. Learned counsel for the appellants further argues that the memorandum statement and recovery of axe and club has not been supported from independent witnesses of the prosecution. It is also submitted that in the absence of FSL report, recovery of axe and club are inconsequential.