- (1.) This appeal has been preferred against the judgment and order dated 25.8.2006 of the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.973 of 2000, wherein the High Court has confirmed the conviction and sentence, so far as the present appellants are concerned, awarded by the Additional Sessions Judge, Bemetara, Durg dated 31.3.2000 in Sessions Trial No.147 of 1999 by which the appellants stood convicted under Section 148 of the Indian Penal Code, 1860 (hereinafter called "IPC") and sentenced to undergo R.I. for two years and pay a fine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month. Sukhsagar, appellant no.2 stood convicted under Section 302 IPC and Shivlal, appellant no.1 stood convicted under Section 302 read with Section 149 IPC and both were sentenced to undergo imprisonment for life and pay a fine of Rs.500/- each, in default of payment of fine to further undergo R.I. for two months. All the sentences had been directed to run concurrently.
(2.) Facts and circumstances giving rise to this appeal are: A. According to the prosecution, the appellants along with 13 other accused persons armed with deadly weapons, with a common object of murdering Shankar Satnami attacked him on 12.10.1997 at about afternoon near the house of Tijwa Sahu when Shankar Satnami, deceased, was proceeding towards a tank for taking bath along with his wife Sukhbai (PW.9) and his grandson Anil, as a result of which he sustained numerous injuries and died on the spot. B. The incident had occurred in the outskirts of the village. Sukhbai (PW.9) came back to the village and when she informed Beer Singh (PW.1) about the incident, he told her that he himself witnessed the incident and came back to the village after the incident was over. Ramkhilawan (PW.7) went to the Police Station at a very far distance and gave oral information about the incident to the police. Instead of lodging a formal FIR on the basis of oral information by Ramkhilawan (PW.7), the police only registered a complaint (Dehati Nalish). Mr. J.S. Dhurve, I.O. (PW.12) proceeded for the village Dara. After reaching the place of occurrence, he met Beer Singh (PW.1) who narrated the incident to him. It was on the basis of this information Case Crime No. 236/97 was mentioned in the aforesaid complaint (Dehati Nalish) mentioning offences under Sections 147, 148, 149 and 302 IPC. C. After reaching the place of occurrence, the I.O., Mr. J.S. Dhurve (PW.12) performed the inquest over the body of the deceased vide Ex.P-6 in the presence of the witnesses and sent the body for autopsy to Govt. Hospital, Bemetara, where Dr. K.L. Dhruv (PW.14), conducted the post mortem and submitted the report Ex.P-15. Mr. J.S. Dhurve, S.I. (PW.12), prepared the Site plan Ex.P-6 and another Site plan Ex.P.13-A was prepared by the Halka Patwari, Tuganram Sahu. The accused were apprehended and at their disclosure statements, blood stained weapons were recovered. Plain soil and blood stained soil was taken into possession from the place of incident. Blood stained underwear, Lungi and pair of slippers and a knife were seized from the spot vide Ex.P-29. D. The weapons used for commission of the offence seized from the accused persons were sent for examination, first to the Doctor who opined that the injuries to the deceased could be caused by the recovered weapons. The said weapons were subsequently sent for chemical examination along with plain and blood stained soils. The Forensic Science Laboratory vide its report Ex.P-9 confirmed the presence of blood over all those articles. E. After completing investigation, chargesheet was filed against fifteen accused persons in the Court of Judicial Magistrate, First Class, Bemetara, who in turn committed the case to the Court of Sessions Judge, Durg. The Trial Court framed the charges under Sections 147, 148 and 302/149 IPC against all the accused persons who abjured their guilt. F. The prosecution in order to establish the charges against the accused persons, examined 13 witnesses and after completion of their depositions, the court examined all the accused persons under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called "Cr.P.C."), wherein they denied their involvement and submitted that they had falsely been implicated because of the village factional rivalry. The Trial Court vide judgment and order dated 31.3.2000 acquitted nine persons of all the charges giving them benefit of doubt, however, convicted and sentenced the remaining six accused persons including the appellants. G. The said six convicts preferred Criminal Appeal No.973 of 2000 in the High Court of Chhattisgarh at Bilaspur wherein the High Court vide impugned judgment and order acquitted four persons, however, upheld the conviction and sentence of the two appellants as awarded by the trial Court. Hence, this appeal.
(3.) Ms. Tanuj Bagga, learned Amicus Curiae appearing for the appellants, has submitted that the dispute arose because of a factional rivalry in the village and unending dispute over the land meant for community use on which Shankar Satnami, deceased, had illegally encroached upon. In the oral complaint made by Ramkhilawan (PW.7), not even a single accused had been named. There had been no eye-witness except Sukhbai (PW.9) whose evidence itself is not worth reliance. The courts below erred in convicting the appellants on the basis of the evidence on which a large numbers of accused had been acquitted. There had been material irregularities in the trial itself as no report as required under Section 157(1) Cr.P.C., has been sent to the Ilaqa Magistrate which was mandatory. The High Court brushed aside all legal submissions advanced on behalf of the appellants. Once the High Court came to the conclusion that recovery of weapons itself was doubtful, the appellants were equally entitled for benefit of doubt. Both the appellants have served for more than 11 years and are still in jail. The appeal deserves to be allowed.;