maghw Dvw" {Cr:w?n21‘ m IN TIE HIGH C0131? O 13H)£IYA ADESH AT JA'bA‘WUR C A Hg MISC.CRI1»:IHAL case: 1 CRIMINAL APPEAL 11c é /87 /87 \ ha e (i3 state of 1';-adt%§§$"’§$r d‘ through Police Station Goul‘ella Tamij? and district Bilaspur. E NT ‘ . RE§p01mE NTs: 13aykumar s/o Tammi singh r/o ‘ I-schhideeh Pd. Tarapur District Nungehx Eimr) . &. ma shpasa S/o‘ .it 1‘ g (r /o ‘ra .5. Ta ' is ct 1 imr) \ a h ' Ku'siwh; tig lkLhore aged14§vxaars a/o Pren r/o Naral’n‘fSirig" Kmira t Durai Pd. ihrapur, temporary r/o Charnda Ehi‘lé‘i Distt. Dur I:“ A t 4 ’ AWLICATION FOR QHANT OF LEAVE To FILE Ai'pstaL UNDER UIMR hmcmcn 37g“ 1:1 Cr,P.c. E73 AGAIMT “cwlwqL. J, we 4ND 27 ARI-‘5 ACT QFFEIJCE UNDER SbCTICN 3$6 I.P.G. 2w r Q ? V L ix O q’li 200 WWW WWW £ WW wm '$ai§ma¥%¥f JA. Loham, $eaH zed Paaei Lawyer for ihe appgEam/ Name far the respcnden :s‘ Argumen'is heard with Crimim§ Appea! NG.6?§/1987 and \ Q ‘-\ v H3§f§LE S§€§§ RQ‘uEE‘ai Gii WW,m. QY‘ Mm], $3 WW emm (W) mmm BiViSmN EENCH ;§‘TA, $1} & HGNEBLE $§€R§ SUNéL KUMAR SWEA, $. @.$8.2@1§, Sm / a I Sia‘ze. judgmentidictaied in w ggen 30m in Criminai Appeai \\&\ Ns.6?§f1§87. v Sd/- Sunil Kumar Sinha Sd/— Chief Justice Judge ssubbu g WWWK, Wrafim'i—q’ wFS/147—‘2/2010 #130,000. (”2? N HIGH CQLJ_R_T OF CHHATTISGARH AT BILASPUR DlViSiON BENCH HON’BLE SHRI RAJEEV GUPTA, C.J. & HON’ LE $HR§ SUNIL KUMAR SRNHA, J. Criminai Aggeal No.679 of 1987 CORAM: Afmeal under Section 378m“ or me Cr.P.C. Present : Shri JA Lonam, Panei Lawyer for the State/appellant Nene for the respondents. were (5m August, 2910) m iN The fouowmg judgment of the Court was passed by Rageev Gupta, C.J. of Criminai Appeai This judgment shall govern the disposal No.831 of 1992 also. Jr , , as .W limnenant State of Madhya Pradesh through Poke Station Gourelia Tahsi" and distrim B‘Haspur u‘ I Versus Resnondents ‘ £ . Vlrendra @ RajKumar Slo Satyanaram Singh aged 22 years r/o Khaira Durai PS Tarapur District MUnger (Bmar) 2 Prakash Slo Banwari @ Bano K/..»Lu..nl~a {\umlwalla, an‘ad, agcu ”‘OJUA‘vA 4.0 ycmb, vln nu I/kAi—a (\Ilana Durax PS Tarapur Distnct Munger (Bihar) :3 Maheshprasad, Slo Sumitla§ Singh 25 R/e B'arrai, PS Tarapur aged 25 years, District Munger (Binar) 4 Hukumchand S/o Gulabchand Jain, aged 35 years, r/c Khadar'i District BilaspurMP 2) The appeHant/State fiied Criminal Appeal No.679 of 1987 m against the acquittai of accused persons Virendra @ Rajkumar, Prakash, Vijaykumar, Maheshprasad, Jugaikishore and Hukumchand vide impugned judgment dated 28.10.19986fpassed by ‘the Third Additionai Sessions Judge, Bilaspui in Sessions Trial No.110/1985, Whereby ail the six accused persons were acquitted of the charge under Section 396 of the Indian Penal Code. 3) The appeal against the acquittal of two accused persons, namely, Vijaykumar and Jugalkishore was separated vide order dated 25.08.1992: passed in Criminal Appeal No.679 of 1987 and a separate appeal Was directed to be registered against the acquittal of respondents No.3 and 5 Vijaykumar and Jugalkl‘shore and this is how Criminal Appeal No.831 of 1992 came to be registered against Vijaykumar and Jugalklshore. 4) Police Gourella, district Bilaspur after completion of the investigation of the case registered on the report of Sha‘nkar Prasad charge-sheeted as many as six accused persons, namely, Virendra @ Rajkumar, Prakash, Vijaykumar, Maheshprasad, Jugalkishore and Hukumchand for; the alleged commission of the offences punishable under Sectioh 396 of the lndian Penal Code and Section 27 of the Arms Act on the accusation of their having committed murder of deceased Baijnath I whilje committing dacoity in his house in the night of 08.04.1984. 53) ‘ The respondents/accused persons abjured theirvguilt and pleaded false implication to the charges framed by the trial Court. .W ,i A, . «the Lo»_r. see tier?“ X G ; ‘8) At the trial, the above charges against the accused persons Were sought to be proved on the ewdence of PW/1 Shankar Prasad, PWI’Z Gayaprasad, PW/3 Narendra Kumar Singn, PW/4 V Hira Singh PW/S Sukrut Das, PWI‘6 tshwari Prasad, ‘PW/7 Patras Tirkey, PW/8 Dr NK Samdariya, PW/Q NM Qureshi, PWI1D Ramieevan Tripathi, PW/11 Shivshankar, PW/12 Rajeshwar Singh, PW/13 Jagatpal Singh, PW/14 DP ThaKur, PW/15 Dr $atish Singh, and PW/18 Dr S Maravr. V ?) Of the above witnesses examined by the prosecution at the trial,” PW/i Shankar Prasad, PW/2 Gayaprasad and PW/11 Shivshankar were examined as eyewitnesses of the alleged incident. 8) The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial in general and that of PW/1 Shankar Prasad, PW/2 Gayaprasad and F’W/11 Shivshankar in particular found that, the evidence of the prosecution witnesses suffered from W‘ - 1 serious infirmities; the test identification parade forthe identification of the accused persons was not properly conducted; according to the prosecution witnesses, the miscreants hag covered their faces with towel; the eyewitnesses did not disclose'the description of the miscreants in their case-diary statements. On account of the above infirmities, the trial Court found it quite unsafe to act upon the prosecution evidence. The trial Court, therefore, following the G ‘ ‘ dictum of the Apei'tourt in the case of Wakii Singh and others Vs State of Bihar reported in 1981 Cr.LJ 1014 : AIR 1981 SC i I ro “A 1392, acquitted the accused persons vide impugned judgment dated 2841 0.1 986. 9) $nri JA Lohani, learned Panel Lawyer vehemently argued G that the trial Court has erred in acqulmng the respondents I accused persons by dlscardlng the evidence of the prosecution witnesses on flimsy and untenable grounds. Learned Panel Lawyer further submitted that, the eyewitness account of F’Wl1 ShanKar Prasad, PW/2 Gayaprasad and PW/11 Shivshankar was t more“ than sufficient to establish the charges of dacoity and murder against the accused persons. 10) Admittedly, the incident of dacoity and murder of deceased Baijnath took place in the night of 08.04.1984. Even according to the prosecution case, the miscreants were not Known to PW/1 Shankar Prasad, PW/Z Gayaprasad and PW/11 Shivshankar. The . police charge—sheeted the six respondents/ accused persons as the miscreants who committed dacoity and murder of Baijnath. in addition to that two other persons namely Devendra @ Prakash i and Dhananjay Singh were also shown in the charge-sheet as absconding, meaning thereby that according to othe prosecution case, therewere as many as eight miscreants wh'o committed the alleged incident on 08.04.1984. in the First Information Report, registered in the form of Dehati Nalishi on the information given by PW/1 ShanKar Prasad, the number of miscreants was mentioned as ‘about fivei. Simiia’rl‘yirin their statements before the trial Court, PWHShanKar Prasad gave the number of miscreants as ‘5‘, whereas PWI2 Gayaprasad and PW/11 Shivshankar stated i'tse. that ‘4—5’ miscreants committed the incident. it was mentioned in the First information Report itseif and has also come in the evidence of the eyewitnesses that the miscreants had covered their head and faces with towei. Though the accused persons were arrested by the Police on 09.04.1984, the test identification parade was heid only on 14134.1 984. 11) 1t has also come in the evidence of the prosecution witnesses that the miscreants after their arrest were Kept at the Rest House in the village and the lnvestigating Officer recorded the statements of the prosecution witnesses in the same Rest House. Thus, the eyewitnesses had sufficient opportunity of seeing the persons arrested by the Police. The eyewitnesses being the inmates of the house, where the miscreants were allegedto have committed dacoity, would be very Keen to see the persons arrested ' by the Police as early as possible. 12) On due consideration of the submissions of learned Panel Lawyer; the findings recorded by the trial Court leading to the acquittai of the respondents/accused persons; the evidence led by the prosecution at the trial in general and that oi PW/1 ShanKar a' Prasad, PWIZ Gayaprasad and PW/H SnivshanKar in particular; the above mentioned broad features of the case, in the context of the dictum of the Apex Court in the case of Wakil Singh and others (supra), we are satisfied that the findings recorded by the trial Court leading to acci‘uittal of the respondents/ accused persons do not suffer from any innrmity, whatsoever. € V " ' a _ t t , 13) Mere possibility of another view on the prosecution evidence wiii not by itseif be a sufficient ground to warrant interference in an appeai against acquittal. 14) We, therefore, do not find any good ground for interference in these appeais against the acquittai of the respondents. 15) For the foregoing reasons, both the appeals, i.e Criminai Appeals No.679l1987 and 831/1 992 fail and are hereby dismissed. 16) A photocopy 9f this judgment be Kept in the record of G J /—/“ ~> w: i7 i Sdl- i I ‘ V: Sun“ Kumar Sinha a i e .7 .v‘ Sd/- ‘ L . , Judge ‘ ‘ Chief Justice ' / , ‘x ‘ r Criminal Appeal No.831/1992. \i subbu ~ ‘