UDAY RAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The instant revision has been preferred against the judgment dated 19.9.2018 passed by the 5th Additional Sessions Judge/Juvenile Court, Durg in Criminal Appeal No.139 of 2018 arising out of the judgment dated 12.6.2018 passed by the Juvenile Justice Board, Durg in Criminal Case No.935 of 1999, whereby the Juvenile Justice Board has convicted and sentenced the Applicant as under:

(2.) Prosecution case, in brief, is that on 11.9.1999 at about 6:00 p.m., Nakul Mahalwar (PW2), a friend of Complainant Toran Singh Rajput (PW1) came to the house of the Complainant. Thereafter, both of them along with Radheshyam Rajput (the deceased), who was brother of the Complainant, went outside the home towards the chowk. Allegedly, the Applicant, who was a juvenile on that date and other 3 major accused persons, namely, Jani Yadav, Jitu Nishad and Shrawan Kumar Sahu came there armed with sword, gupti and knife and due to a previous enmity, they assaulted Radheshyam and caused his murder. The incident was witnessed by Complainant Toran Singh Rajput (PW1) and Nakul Mahalwar (PW2). Morgue (Ex.P1) was lodged by Complainant Toran Singh Rajput (PW1). First Information Report (Ex.P5) was also lodged by him. After the proceeding of inquest (Ex.P3), dead body of the deceased was sent for post mortem examination, which was conducted by Dr. A.P. Sawant (PW4). Total 77 injuries were found by him on the dead body of the deceased. Out of them, 71 injuries were cut injuries. 3 fractures were present on the jaw. Fracture was also present in 5 ribs. 3 fingers of right hand had been cut away. The injuries were of anti mortem in nature. Cause of death was due to excessive haemorrhage and shock and injuries to vital organs. Post mortem report is Ex.P14. During the course of investigation, vide seizure memo (Ex.P11), one gupti was seized from the present Applicant which was stained with blood. From other co-accused persons also, weapons were seized which were used in the crime in question. Clothes of the accused persons were also seized. On completion of the investigation, against the present Applicant, since he was a juvenile, the present chargesheet was filed before the Juvenile Justice Board. Charges were framed against the present Applicant under Section 302/34 of the Indian Penal Code. As many as 8 witnesses were examined by the prosecution. In his statement recorded under Section 313 of the Code of Criminal Procedure, the Applicant denied the guilt. On completion of the trial, the Juvenile Justice Board convicted and sentenced the Applicant and the Additional Sessions Judge/Juvenile Court affirmed the judgment of conviction and sentence as mentioned in the first paragraph of this order. Hence, this revision by the Applicant.

(3.) Learned Counsel appearing for the Applicant submitted that both the Courts below have wrongly appreciated the evidence of Toran Singh Rajput (PW1) and Nakul Mahalwar (PW2). They are eyewitnesses of the incident, but they have stated contrary to each other. Therefore, statements of both these witnesses are not reliable. Learned Counsel further submitted that both the Courts below have wrongly relied upon the statement of Toran Singh Rajput (PW1) and arrived at the conclusion of conviction of the Applicant, which is perverse. Both the Courts below have failed to appreciate that the prosecution has failed to prove overt act committed by the accused persons and also failed to prove that who among the accused persons gave the life threatening assault over the body of the deceased.