IN^TH»tHI©Ht<!OlKi^<^»iS^I^^ •i:':.';(<MGt^]["lllS^ARHt • • . .• ;: -: , ".1 ,: GRIIgHlfifAI.'ArpEALNO ShigI&BCTCft 12006 Ravi @ Ravindra S/o Thuma, Sii-caro aged about 22 ^,. R/Q Satorapara, Puten^ Bhil^i, Disfrict Eh-irg, (ehBattisgai-h) State of Cl'thaftisgarh,, Through, Police Statioti G.R.F. Bhilai DistrictDurg(G.G.): SEatTENCE Under SectioU,'457;6fIPC.4YearsiygorousIffi@ngpiBtrne^ For 8s a fine.pf Rs.SQS^fiM- . oSenceU/:S457]PCana.6-^^ nionths inipriSQnEien^in..^ case of defalfLin deposit 6f fine: ' 4 of IPC '3 Years Rigorou&^ IriipEtsonment For 85 a-SQ&S&MsSSffor' offenee U/^l-5®>C;Sand6. months inrpnsoiiineht, in case of default in depOsit 6f fine: , '' : ' / , : - .•'. CRIMINAL APPEAt UNDERSSEJETION 374 Q®THE CCIBE; OF CiRIIffilNAL I'lRjQCEDURE, 1973 •iM \. HI6H COURT OF CHHATnSSARH ATBXLASPUK Cr. ApDeol No. 505 of 2006 - f~f: -1- Rwi ^ Ravindra /^/s. State of Chhatt'isgarh Postfor Judgment: 08.11.2006 •/. SdV DiUp RaosahebDeshmukh Judge / -»./< •m HI6H COUR^ OF CHHATrrSSARH AT BILASPUR Before; Hon'ble Shri Justice &ilip Raosaheb Oeshmukh Criminal ApDeal No. 50B of 2006 Ravi @ Ravindra M Versus State of Ctihattisgarh Present: Shri SoOTdeep Shrivastava. Counsel for the appellant. Shri AA.P.S.Bhatia, Panel Lawyer forthe State. ••w J U D 6ME NT (&etivered on this 08t1' day of November 2006) This appeal is directed against the judgment dated 20 June 2006 deljvered by Shri A.K.Saikwad, 4 Additional Sessions Judge, Durg (C.6.) in Sessions Case No. 19 of 2006 whereby theappellantwas convicted un'def Section 324 and 457 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years under Section 324 I.P.C. and a fine of Rs.500/- and to rigorous imprisonment for four years under Section 457 I.P.C. and a fine of Rs.500/- . In defdult of poyment of fine, it was directed that the appellouit shall under90 rigorous imprisonmentforsixmonthsforeachoffence. ^c . ^ . ^ ' ^ , _ ^. . ., 2. Briefly stated theprosecuti^n storyisthct Ramu Takri was working as Suard in the I.O.W. Construction Officelof Railwayi bepartment inBhilai-Spn 24.10.2004. At about 1.00 A.AA.—thei appellant scaled the bounctary wall ahd entered -rtie premisel SsW^ii 1 L—t-- commit theft of fish prates. Ramu Takri warned the accused from doin9 so whereupon the appellant snatched the club from Ramu Takri and assaulted him repeatedly on the skyll and ronaway. Ramu Takri lod9ed FJ.R. ot 1.45 AAG at Police Stotion 6.R.P. Bhilai vide Ex.P.10. On medical examination, t)r. P. Akhtar, Senior Medical Officer, District Hospital, tiurg P.W.t5^ound the following injuries: •fs (1) Lacemtedwourid on-iOccipital region 5 cm x lcm x i cmwithi fresh bleecling. (2) Lacerated wound on left parietal region extending to occipital region 8 cnr. x 1 x ^- cm with fresh bleeding. (3) Lacerated wound on left frontal region of scalp semicircular shape extending fo right frontal region 14 cm x 2 xi cm and fresh bfeeding. (4) Lacerated wound on rightparietal region6cmx 1 x 1- cm with fresh bieeding caid 2" one extending from right parietal to tempbral region obliquely of size 10 cm x 1 cm, icm with fresh bleeding. (5) Lacerated wound on right parietal region extending obliquely to temporal region 7 cm x lcm x 1 cm bone . exposecF. Ramu Takri was admitted in Shri J.L.N.Hopital and Research Centre. CT scan of Hedd reveqled intrqcerebral bleed cind small infarct ri9ht occipital re9ion in left temporal region. 3. The appellantwasarrestedon 30.10.2004 by A.5.I. Raj Kumdr Bojha P.W.14 of Ou-tpost Charoda, Bliilai On the memorandum of appellontdt.31.10.2004, one club was recovered fromthebushes.The bloodstained clothes of the eppellomt were also Examinationof the club and the clothes of the appellant by the F.5; recovered. iSffi ^E^^: .revealed presenceof blood on these articles. After Gompletion of inves'(igati6n,1+iedppelldntW(is prosecuted. "ti 4. The qipellanf abjurecT the guilt, pleacled innocence wid fdlse implicattion by Ram Tafcri and examined his fctther Thuma D.W.l fo establish previous animosity bf ^am Takri with the father of the .^t ''. ' ..•'••: ;. '. '.' :•• ".'' • ' '••/.. /. •• appetlant. The prosecution.exaftmed as many as 15 witnesses. The trial Judge brushing aside the admission by Ramu Takri in his testimony that he hddfalsely implicated theappellant due to previous animosity with his father convicted and sentenced theappetlantas aforesaid in paragraph 1 on the basis of the testimony of Ramu Takri which was corroborafed by medical evidence. 5. Shri Santtop Shrivestava, leamed counsel for the cppellant contended that Ramu Tdkri P.W.10 admitted in panigraph 13 of his cross-exoimindtion that due t6 previous animosity with Thuma, father of the oppellomt,theappellanthadbeenfalselyimplicatedbylodginga false report. It was also contended that the testimony of Ramy Takri that the appellan* assaulted him with iron rod was wholly unworthy of any credif since not substantuted by the F.I.K. lodged by Ramu Takri. It wasalso pointed out that np theft was committed from the I.O.W. Office on the dcrte of occurrence. Had theappellouif entered the premises for commil't'ing theft,hewoulclhave done so after ossaulting RamuTakriduetowhichhe'follonthe^groUnd.Itwas furtheppointecl out thort- in par'ograph 7 of his testimon^ Ramu Takri aclmitted that while gojng to the poliee Station, he did^nbt inform anybody about -rtie occurrence. It wus furt'hercontended that the testimony of R(unu Takri that the appeUant had assaulted hini wrth a rod ond wooc|en|cl|t>jj is wbolly uhworthy of Credif since jn ^e PI.R. lodged^^^^^ i'^s»s ^xs- ri^ SK 'iass MSi 'ss^&s ^1^^/ ..1^i<^@<^ :^;^^ U1 4^ stated that the appellant wos empty hflmded. It was urged that the oppellant was falsely implicotted by Ramu Takri due to previous animosity with the father 6f the oppellant. Leamedcounsel fpr the appellantalsoreferredtoAhetesti(nonyofRamuTakf'Tinpat'agraph6 which revealed that it wos pitch dar-k at the placeof occurrence ond contended that the possibili^ that after' being asaulted by some ftl • '. . • ..»•'• r , intruder whom Ramu Takri ctiEild not identify, a false report was lodged agajnst the appellont'to sett'le the score with his father. Reliance wasplaced on Baldev Sirgh and another v. State pf tt.P. and Sudhir and another v. State of Madhya Prade.sh^. On the other hond, Shri M.P.S.Bhatia, leamed Panel Lawyer argued insupport of the impugned jydgment. iii!f 6. l-layingconsicleredrivatsubmissipns/Ihaveperusedtherecord of Sessions Trial No. 19 6f 2005. While appreciating the evidence of witnesses, the Courts are requir'ed to consider ttle probabilities factor and also the natural humon conduct and not act merely in 0 tnechanical manner. To illustrate, in the facts andcircumstances of the present cos6, the followin9 questions ought to have been considei'edwhile appreciating the evidence of the sole injured witness RamuTdkriP.W.lO; (a) Could the thief scale the high wall of theI.O.W. Construction Office which was fenced with barbed wire and ;ongleson the top? ^. (b) Wjies theappelldntarmedwsffh an iron rod oraclub at thetiineofoccurrence? 1.2003 CRI. LJ. 880 2.1985CRI.L.J'.79S I':" ;lli (c) Was it possibfe that on being challenged by the Suard who was armed with a club, •the thief would, as a natuml human Conducf, run awoiy or take the risk of indulginyin d fight with the 6uar9 after snatching his club? (d) Did theappelldnt comjinit theft of any fish plates if 'sl :.': .' ' he was so deterinine^tto do so even at the cost of inflictinginjurieson the 6uard? ^) tiid the ^uard uge the telephone facility in the office to inform hissuperiors afterthe occurrence? (f) Could theSuard identify theassailant in darknessin theatisesnceof cny light? (g) Did the Suard whileon his way to the Police Station informabQut the dssault by theappellant to anyone? (h) t>id the Suard bear 3rud9e against the father of the appeltant ond wanted to sett'le the score with him? (i) Could the possibility be ruled out that the Suard , coultfnot identify -Hie intru<ler in darkness and had used the opportynily to settle •the scorewith the father of the appellant by lodging a false F.I.R.? (j) Whetherthe testimony of the Suard thathewas assaulted by cn iron rod by the cippellant irispired confidence? (k) Did the Suard make any eiffort to osscult the intruder-thief? (1) &id the prosecution succeed inproving presenceof human blood on the articles seized on tHe SSN 'SSIIH ;^%^^.! 11 i'lll IEN '-Wr. ^;:!' -^ ••V-. \-^.A !1] >. memorandum b,f the appellant? 7. All thesefactorsshould have beenalive in the mind of thetrial Judge whjle oipprecicrting the eviclenceof the complaii'Km't-Ramu Takri, failing which, while mechanically evaluating and appreciating the testimony of the jnjured wiftiess, as he djd there was every likelihood Toarriveatawrongconclusior^riierebycausingfailureofjustice. 8. In Zahira Habibulto H. Sheikh and another v. State of Sujarat and others , the Apex Courf has observed thus: "The courts hove to take dparticipatory role in a triai. They are not expected to be wpe recorders to record whdtever is being stated by l+ie witneases. Section 3 of *he;Code and Secl-ibn 165 of the Eyidence Ac^CMrf^v^^fSMlfw^^pjw^^^ court td elicit all n^esiM^nwrteridls'b^ an active role in the evidence-Colle<:ting process. They have to mbnitor the proceedirigs in aiai of justice in a manner thdt Something, which is not relevant, is not unnecessarily brought intb recoi'd. Even if •riieproSecutor is remiss in some weysjt <^ contrdl theproceedings effectively so that the ultimate objective i.e.truth is arriveid ot. This becomes moreneeessary where the courf- has reasons to believe-'thtrt- the prosecuting dgency or the pro%cut6r is ; not acting in the requisite manner. The court catinpt^ affordtobe wishfu||yorpre*endto be blissfu ly igriorwit or oblivioustosuch ^riouspitfalls or deretictwn of ^ on tiie part of •t'he prosecuting agency. The pirosecutcir], who does not act fairly and acts more like a counsetfor fhe defence is d liabilrty toi-^ fair yydjcial ^s^mand? courfs could riotdlsb pfcy inta the hdncb of ^suc(i|, prosecuting agency diowingi indifference or <iidoptingi;ati|, .—--!'-' orl-t-itude 6f+otal albofness". y -...^'..••. • ;. '.. • ^ . ' .• •'• '; . '.'. •• •':•" • •'••V-. 3. (200^4Supreme Court'Cases 1S8 BSB:: l-i1E: 1:1 III1 \.- 9. Bearing the <»bove'sprinciplein mincl, it is necessary to prescribe a word of caution for the trial Jydge. If Ramu Takri P.W.tO iri his cross-examination admitl-ecl without mincing any words that he had lodged a false reportttgainst the appellant due to animosity with his fcrt+ier, it was the duty of •riie trial Court to haVeelicited from Ramu Takri wh i le recordihg eyictence to exptain this fgct as agajnst his :'..& ..''., ;." .. .1'...'..' .:'.'.1; testimony against the <xppella t-. AAerely brushing aside the above statement at the time of writmg judgi'nent, without making imy effort whatsoever to clenr the ambiguity while recording eviden<», h<xs resulted in fculure of justice. The Judge whiie recoFding^evidence is notl'equired to beasilent spectator but is required to be vigilouit and to^elicit from th^.witness if be has^i.inder'stood the questidn before recording 1'he^answer giveh. In thiscase, the leamed trktl Judge did ;notdo:so. : : .' ^ :: . : : . . . :; : ' : • 10. Ramu Takri P.W.10 is the sole eye witness of the occurrence, besides being the injuredperson. In the F.I.R. promptly lodged byhim vide Ex.P.lO, he had narrated that the appellant had scaled the boundary wall pf l+ie construction Office of I.O.W. while he was on dut/ as;a fiucird. On his shouting, the qapellont had snatched theclub from his hcndond hurling filthy abuses ond threort^ing to kill him; had assautted 3 - 4 times on his tiead by the club. t-lowever, in Kis testimony before the learhed trial Judge, Ramu Takri Stated 1'hafthg appellant assaulted him by a club^ancl also by an iron rod. Ramy Tdl<n was confronted witH the F.I.R. Ex.P.tO as also h is statement; recordecl" 4' '•••' • ••' ' . .. • • •; - .... ;' ..;- .^•t .^1.1^' under SecticjB 161 CK.P.C. Ex.&.l wheri^-the fact of assault b^ irdi^ rod^ by the oppetlant was riot ndrpated. If the appellant'had s|Milec|^w;||||g js'iSisiisSiisi! boundary wall of the cohstruction office to commit thef^^o'j;j^i|||||||| pi'ldtes, •he. .would ,'have, ;':after'assqult|ng^: Ramu Tdkii^ s'hJ en||g^^ «r-- articles from the constiliction office. Nothingof this sor-t happened. It is also to be seen that Ramu Takri admitted inparagraph lOof his testimony that he neither informed his superior officers though telephone focility was available in the office—nor informed anybody on his way to the Police S'tation. This conductdoes not seem plausible. A thief who wfl^ not arnied would, on being spotted by <? . ; _ . . a Suard who was armed witlt & club, try to run away and would not snatch theclub and assault the Suard. If he did so, the thief would not howe retumed .wi'thout stedling the fisli plates for which purpose he had entered the premises.. If the Suard had a club in his hand cind had spotted and challenged the thief/hewouldhave atleastassculted the thief with the club before the thief would snatch the club from him andasscMlthim. 11. In para9r<iph 6 of his testimony, Ramu Takri admitted That at the time and place of occuri'ence,it was pitch dark. In his testimony, he did not state that he was carryinga torch in his hand. On the contrary/he went on toadmit that there wereno lights anywhere near the place and^tinNe of occurrence. He also admitted that •riie office wall is; 6 ft. tall and on top of it iron angles and barbed wires were placed, and therefore, nobody could scale the wall to come insidethe campus. Thisalso creates a serious dent in the testimony of^Ramu Takri that theappellanT had scqled the wall and was eommitting theft of fish platestmd on being chall^nged snatched the club from his hand ond assaulted him'repeatecllyon-thehead. ••-*•. • ' ' ".T'* 12. To rnoke nwtters stjll worse for the prosecution, m| parggraph 13 of his cross-examination, Ramu Takri has, without mincing the words; clearly admitted thdt he had lodged a false repOFt- egdinst the IB':Bilb 'i'n •IH^ ^1^.- c^s--. appellant due to previobs animosity with his father-Thuma. This renders the testimony of Ramu Takri that it was the appellont who had cssaulted him at the troe and place of the occurrence extfiemely doubfful. Ramu Takri P.W40also admitted in paragrapti 8 that Thuma had deposedagainst him during a departmental enquiry and was not on talking terms with him. Thumtg D.W.l has also stated that after he .;:® • had deposed against Ramu TrifS'i in the departmental enquiry, Ramu Takri had threatened to setfle the score when asuitable occasion arose. True, Dr. P. AkhtarP.W.15 has ppoved the injuries sustained by Ramu Takri but in the aforesaid circumstances, it is not proved beyond the shadow of doubt that the appellant was the perpetrator of the crime. The rpport of the F.S.L. Ex.P.29 also does not prove the complicity of the appellant in the crime beyond the shadowof doubt sihce presence of human blood was not confirmed pn the articles. 13. Having thus considered the evidence led by the prosecution in its entirety ond in view of the serious infirmities in the testimony of Ramu Tdkri P.W.10,1 amof -the considered ppinion that the testimony of Rannu Takri is highly suspicious and does not rule ouf the possibility that Ramu Takri was txssaulted by some unknown thief in the dead of night while it wos pitch dark in the construction office omd to settle the score with the father of the appellant, Ramu Takri had lodged a false F.I.R. implicating the oppellant for an offence which hedid not commit. In thesecircymstances, the oppellantisentitled to benefit of doubt. • • , • 14. In the result,t+ie appeal is allowed. Gonvictionof the appeillant under Sections 324 ond 487 of'riie I.P.C. <xnd the sentence c(wapcjecl; thereunder are set dside; The appellant is acquitfed after giving|lti|mii '^^•s- ^NE-^' w sgss^ i'^¥sl:^i;s; •f " J -<•- •K •;.. ""ss^. "'v 'K .0 >e' ,.r.- ^ ffi . e1 % g I o ^ 1l^ o 1 g- o & i ^i- ^ s ^ %t §- o, §" g Q- 3sI w -h o ^.