aiife**aaS'ill nw IN THE HIGH COURT OF MADHYA PR&DSSiI AT JABALPUR 1 (', r G-.-^ ^A^.i3C . ^M. Cr. C. No ..'':kAi\c 199^1 Com'o13.L n c3n' A A ".nt'KtAOyfiar^^. .??^;-;3 " '/ijA- f^~ ^rlZ"^F%. "^fK^—SiS?9^ "^s'ssCs^sy -•; ^^T^^E-^sff^T^ 'Narayan Prasad, aged 37 years, son of Dwarpsl DSvangari, oc'c'a-oatio'a - weiver and resident or village Champc, District Silaspur,M.P. versus ^' . . ' . • • . Non-applicantssl. Sodhiirsm, agsd 57 yaars, s.7'Qlo.r Daursil? ^ 2.'"-/Tulsirara, aged 26 years, son o.f Sodiiuram; : S.'.X'araehand alias Ghandrika, aged 24 y&ars; ' s/'Q Sodhuram; 4.'-''.Bajen, aged 22 years, son ot Sod.-iu.rani.s All .Oevangsn by csste and resldents or village Champa, P.S.-ha'npa; District Bilaspur,H.P. -S. The Sta-fce of N..S. ,apFLICATIOH FOR GRANS OF LS&VS TO AFP3AL UNS33E SEGTIOaT 373(4) OF THS CCDE OF, CRIMIHAl^_fR.),:^uUi^,_1173 bll'li^'^^^^^ Single Bench : Hon'ble Mr. Justice Pritinker Diwaker ). 222 of Narayan Prosad, s/o Devangan al Sodhuram &. others. Shri Ravi Bhagat, counsel for the applicant. Shri R.AA. Solapurkar, counse! for non-applicants lto4. Shri Vaibhav Goverdhar\, PL for the State/responden' No.5. APPIICATLON FOR LEAVE TO -4PPEAL UNDER SECTION 378 OF THE CODE OF CRIMINAL PROCE&URE The present appeol arises out of the judgment and order dated 20.4.1995 passed by Additional Sessions Judge, Sakti in Criminal Appeal No. 197/88 acquitting the non-applicants No. 1 to 4/accused of the offence punishable under Section 323/34 of the Indian Penal Code. of the case are that the appiiccint/complaincMit had lod9ed a comptaint case against the non-appliconts No. 1 to 4 before the Judicial Magistrate First Class, Janjgir aileging that on 5.6.1986 at about 7.00 am the non-applicants No. 1 to 4 assaulted him by wooden piank causing lccer-ated wound on his head. The applicant repori'ed the matter to the police station and he was sent for medical examination and when nothing was done, a compiaint case was fiied by the applicant. Learned Magistrate has registered a '^NIP^ ^;';:!-?^! ji^^SSSi-SS !;it£^'^S.^;*ssi''1" comptaint against the non-appliccnts No. 1 to 4 under Section 323/34 IPC and issued process aga.inst them. 3. In support of his case, the complainant examined himself and four other witnesses namely Jyotilal (CW-2), Gokui (CW- 3), Dr. V.P. Soni (CW-4) and Balmiki Singh (CW-5). Statements of the respondents/accused were also recorded under Section 313 of the Code of Crimind Procedure. In addition to this, witnesses namely Dr. K.L. Patel & Ramdas have a!so been examined by the defen.ee 'm support of its case. 4. After hearinc has convicted the 323/34 of the Ind the part'ies, the learned triai i-app!icants No. 1 to 4 Penal Code and has sentenced for one year, however each of them to undergo imprisonment the iearned lower Appeiiate Court has acquitted them. l-1ence this appeal. 5. Counsel for the appliccuit submits that the or-dsr by the appellate court below is erroneous cmd contrary facts. S-le submits that the appellate court has consider the evidence dvailable on record. 6. On the other hand, counsel for the non-appiicants No. 1 CTid 4 submits that judgment and order passed by the appeliate Court below is strictly in accordance tvith jaw and the same cannot be interfered with by this Court in the appeal against 7. Learned cour\se\ for the State has duly assisted the Court. mfc& •"./• From the statement of complainant - Narayan Prasad, he iodged a report on 5.6.1986 vide Ex. P-1 but .he admits that he had signed the said report iater on whereas in Ex.P-1 the date of iodging the F.I.R. has been mentioned as 15.7.1986. As per the evidence of Balmiki Singh, Head Constabte (CW-5), no such rsport was lodged by complainant Narayan Prasad on 5.6.1986 and the report' was lodged by one Hori Lal at Soinha No. 154 but the said Horil La! has not been examined by the compiainant. That apart, entry No. 154 in this Rojnamcha Sanha appears ta be iilegible, this has been stated by Baimiki Singh, Head Constable (CW-5). Thus, findingof the court" below that Ex.P-1 is the First Information Repori- appears to be justified. However, as per the statement of complainant Narayan Prasod, incident took piace around 7.30 am in the morning whereas as per the statement of Dr. V.P. Soni (CW-4), who had medicalty examined Naroyon Prasad, the incident took ptace at about 7.00 am in the morning, thus it is very clear that there is discrepancy in the timing of the alleged occurrence of the incident, moreso as per the evidence, complginant was brought for the medical examinat'ion by Abhimanyu Singh from Champa. Further Jyoti La! and ©okul were the servants of the complainant and, therefore; the appeliate court bejow had doubted their credibility. Statements of Jyoti Lal and Gokul have been eiaborately considered by the appellate court below in paragraphs 13 and 14 of its judgment. In fact atl the aspects have been duiy considered by the court below while passing the impugned judgment of acquittal. 9. After hearing counse! for the applicant and considering the material ayailable on record as well as the etaborote ||glgg3:BW-ii"Bi the impugned and being very much conscious of existing iega! position that in cn appeal aaainst acquittd if views are possible on the basis of the evidence led by prosecution and the tria! Courr taking one view favourabl the accused, reversion of the findings of acquitta! by appellate Court taking the other possibie view considera't'ion, is not permissible in iaw, this Court is of view that the judgment impugned acquitting the non-a|: No. 1 to 4/accused of the offence punishable under Section 323/34 of the Indian Penal Code, js just and proper and does not call for any interference by this Court-. Accordingly, leave as sought for by the applicant for registration of against the judgment of acquittai is hereby rsfused. the the ;o^' ^^e Sfflli