IIHHH llHHHH MIMI ,I " IE Tag F5133 comm owivmmmf PRADESE‘ AT IJABALP UR :crJgapieai Km» 9 07. zlggl.’ " am§¢ar1_‘ k ,IPa‘u Kwkoo aea :55 year APPELLAms v 1. '(IN MEL): ._ R/o Mutaka P 3.0ha1gal1 z” ‘ 2. Marian san oi‘ Deaaay Goad \aga& 42 years, x ” _ ‘5. " I Kastoé mum: aiiaa} R1; was’ga ' r . sen of Eaodhar Malhar awd 3o yea All R o village Hutaka P S Ghalgal District Surguga M P./ « r- , . r .AVeI' $113.. r; ‘ ‘aEs'wze 73w : stata r cf Ihahylé Prwesh ‘ s omwmgAPPm .H/savaag ér.'P.c'.””* \ “ D<;l é é s z m i HIGH COURT OF CHHATTISGARH AT BILASPUR Singk Bench t Hon’bka Mr‘ Jusfice Prifinker Diwaker Crimina! Appeal No. 1165 of 1990 APPELLANTS Jokhcm was Pmbhu and aéé’rher. (In Jai-i) PAQ‘ Mr Hamda Sddiq counsel or fhe appellnls in Crmial Appe N 165 1990 Ms Su Aal el four fe ppelan m dha graw couns h alfs Cmmmal Apeal o 9O of 91 K Th blreondem - Mr- U 5 Chandel P L for e a’/resp CRIMINAL APrEALS UNDE SECTION 37 §2i OF TH CODE 0" CRIMINAL PROCEDU E vww ‘1. mu96MENw l - w l ' '7.o110)«w " s b ’re fcrento si ou‘r of le a dmn aed 013 ' o rial No16;6f hey ssed f b T d These appeals are dlrTed agains‘l' ’rhe impugned 10.11.1990 passe by Sesons Jude, 4 :(2.2o 2. judgment a’red Ambikapur, Dlsfrlc’r Surguja in essionTrlal‘N 166/1988 e accused/apellanls in oT Th cass for The convic‘rg fh in o fene oums e er eclor 395 o The Inda Penal de l ard Cl f ln Lo s § ‘ui f c in al o 1 of p N 19 7 h‘ A alh h ameirle'd' ap'p'é‘als are aring ll llam jalge‘rl ‘di 1111990 'p‘a‘sééd ‘ih'lSl‘essins T ./19‘88 f are being dipo o y his common jugment ec ‘ d si g d Sso. p bh e e T r ' a1 , 3+a’re 0f Madhya P RESPQwLENT Chhcmisgarh) Criminal! Appeal N090 ofv 1991 APPELLANTS ‘ Chamar'oo adios D'ema & %: g, (in Jan) Versus RESPONDENT Sm‘re of Madhya Pradesh 7%{, $ and sentencing fhem f0 undergo rigcwous imprisonmen’r for five years each. 2. Case of The prosecm‘ion in brief is fhaf on The basis of DehaTi Naiishi (EXP—6) dated 28.7.1987 lcdged ziby Safyanar‘ayan (PW-8), F.I.R, (Ex.P-6A) was regisfer‘ed againsf the accused/appelianfs on 2911987. As per‘ fhe r‘epcr‘f, on 22.7.1987 when ’rhe complainan‘r Sm‘yanar'ayan Was going from village Khunshi f0 BhuTka, on The way near villageiBhuTka, ihe complainan‘i was chased by The accused persons as‘ a result of which he Took shel’rer in The house of SheeTaI Prasad (PW 2) IT is aileaed ‘lmr all The accused persons had asked *he complainant To come ouT Side The house an when on The V requesT of SheeTal Prasad (PW 2) complainanT. oame ouT from ’ The house he was abused by The accused persons and Then The ih his hand w ched""by‘""The accused persons IT: is alleged ThaT in The said bag, complamanT was having Rs.500/— and one Torch. IT is also alleged‘ThaT The accused persons had asked for furTher money and in Turn The I cdmplainanT Took ouT Rs. 6/- from his pockeT and had given The same To accused Mohan. IT is furTher alleged ThaT afTer Taking The bag from The complainanT, all The accused persons ran away from The spoT and Then complainanT SaTyanaraYOH Took sheHer ‘ 1— in The house of Jhoi‘i‘i Prasad (PW—1) and sTayed There on The MT said nighT. IT is also alleged by ThelcomplainanT ThaT he had narraTed The enTire incidenT To Jhara‘i Prasad (PW-1) and Then also alleged ' To Abdul Raique (PW—4) on The second ThaT Till 28 7 1987 The comnlainanT kepT silence on accounT of fear in his mind and TheneafTer on 28 7 1987 when he came To know ThaT one police officer has come in The Village Chaimy, s a T l l i Informahon was given to fhe scud officer and based on That one bag one Torch and a club was seized from The possession of Accused Chamr'u Vlde selzur'e memo da’red 29.7.1987 3. ’ So as To hold ’rhe accused/appellanfs gmITy, Jpr'osecuhon has examined as many as 9 Wlfnesves STm‘emenTs of The ‘ accused/appeilonfs were also recorded under Sechon 313 of fhe Code of Cr‘lmmal Prooedure In which They dented fhe charge leveled agamsf fhem and pleaded Their Innocence and false implicafion in The case. This aparf, one wi’rness namely Ramavfar (DW-1) has also been examined by The defence in supporf of'i’rs case. I 4. Affer hearing learned counsel for The parfies The Trial CourT has convicTed and senTenced The accused/appellanTs for The offence menTioned above. 5. Counsel for The appellanTs submiT ThaT presenT is a case where on accounT of some civil dispuTe, The accused persons have been falsely implicoTed by complainanT SaTyanarayan. According To The appellanTs, The [and of accused Chamru, who belongs To Scheduled Tribe communiTy, was iniTiolly in ~possession of complainanT SaTyanarayan, however, in The proceedings iniTiaTed againsT him Under SecTion 17(8)‘of The Land Revenue Code, The land was reverTed ossewion of Chamru as a resulT of which The complainanT goT annoyed wiTh him and insTead. of handing over The possession of The ‘ same has iodaed The false reporT :dgainsT‘ The‘ accused/appellanTs Learned counsel for The appellanTs have referred To The sTaTemenTs of Jharri Prasad (PW-1) & SheeTa p i Ty l msad (PW 2) If has alsc been argued on behalf of fhe appellgnfs fha‘r fhe 51x days’ mordma‘re delay m lodging The ’FIrsT Informcmon Repom‘ has no? been explamed properly bv L The prosecqflon and on Then” gr‘owd alone fhe appellan’rs deserve To be acqui’n‘ed. IT has alsa been argued *haT fhough fhe appellams have been named in The Dehati Nalishi as well as in the F.I.R.,..The complainan’r has categorically admii‘red in his court slaiemeni ihai prior To the dale of incident he was not aware of The name of +he appellan’rs. According ’ro The pellam‘s when no Tes’r Tden‘rificaiion Parade in respec’r of identificaiion of The accu ed persons was held quesTion of lodging The FIR. by name does noT arise. Counsel for The appellanTs furTher submiT ThaT There are maTerial conTradicTions and omissions in The sTaTemenT of This WiTness and Therefore The benefiT of doubT should be given To The appellanTs and They be acquiTTed of The charges levelled againsT Them. o. On The oTher hand'couns‘el- for The respOndenT/STaTer supporTs The impugned judgmenT and submiTs ThaT delay in lodging The FIR has been explained by The complainanT by saying Th T on accounT of fear he could noT lodge The reporT ' prompTiy. He furTh‘er submiTs That looking ToTheuse‘riousness of The offence, minor conTradicTions and The omissions in The sTaTemenT of ThiswiTness have To be ignored by This courT He also submit. Tna’T The‘arTicles whch were looTed by The iaccused persons have been duly i e compTainanT roo for,.,._This 7 ds, I h dT‘yanarayan Vide Ex P 5 and Thus There is i ligoprT l To acquiT The accused persons. i im S y, 7. I have heard counsel for The parties aT lengTh and perused The maferia! availabk on record lincluding The impugned judgment 8. rom fhe Dehmi Nalishi (EXP-6) daTed 28.7.198 d FIR. (EXP—6A) dafed 29.7;1987 loed b he clai smyamyan (8) + apears +ha+"-an"‘12‘271‘987 when he was going To village Bhufka, from village Khunshi, he was hased by fhe accused persons and thereore, he Too sheHer in fhe house of Shefa! Praa (PW-2). heefa! Prasad (PW—2 has not supporfed The prosecufion case nd has mrely sfaTed fha‘r o The dT of incden clain n ha ce o his house aT abouT 12 O' clock in The noon and had asked for! waTer, aT ThaT poinT of Time, accused ha' came To his house and had asked complainanT To ovr possion f fd and ey Tws y’Te"comldinanT ThaT he hd already lefT his possession from Te fiel o accuse Chamaru an he is aT liberT To use his fld.Colainan s al sTaTed n repl ThaT aLsed Chamaru ha kd e omanT as a l mlamnT has F 7 an dg y T ompndm an PW—, i p ;. c f k e sd S ) a e n ae iT ompanT SaTyanaraya d om T hande The ses o ~ ’ his iel in rpl i'a Told bhp a h d f d d y ie‘mpT ha so i .is y CC d ase Th cplam pa To why he is noT permiTm Tg To plough T said ThaT h has no bjeion‘ for Th “aT ThT poinT e ocT a ome hoT Talk had Taken place beTween The T ThereafTer- s a d calle o ccus persons nd Te w agr y e cmlT h becTon would ised him d Then Chamaru had emaned Rs. ZOO/— from The complainant He furTher Taes ThaT ThereafTer whaT had Transired beTween The Tw, he is noT aware. p o 9. Jhariprasad (PW—1) has sTaTe in hi saTemenT ThaT abouT 1 % yearsrior To The daTe of recording his sTaTemenT, e complainanT SaTyanarayan had come To his house arid had a d s T Cmaru s wo ' accued Chamru ha d The Ther aed a hn iT as eed b Th opainan TaT no oJi be ra by an dd sT p Th 6 informed him fhm‘ The accused persons have *aken his bag, Torch and few rupees. He sfa’res Thm‘ ’rhe complaindm‘ had also Informed him Thaf hé was abuspd by The accused persons He further stafes fha’r on The said da’re the compiamam‘ smyed in his house In The nigh and the nexf day morning he had lef1‘ In respecf of memorandum Ex P 1 and seizure ExP 2 Though he ’2 has admm‘ed his signafure bu’r has ca*egoricaily sTaTed That no such seizure was made in his presence In his cross— : examinafion fhis Wi’rness has categoricaHy sfafed fhaf The complainan1 is reSidem‘ of Ambikapur and qune ofTen he used ‘fo visi? his village. He also sTaTes lhaf initially ‘ihe complainan’r used To slay in ‘rhe house of one Dashai and Mohan, however, since long he used To slay in his house and on The dale of incidenT also afier sun sef The complainan'r had come To his ‘house and afier faking wafer during chil chai, he had informed him aboul Th incidenT He also sTaTes ThaT earlier iT is The complainanT who used To plough The filed of Chamru however, There was some dispuTe beTween The Two He sTaTes ThaT accused Chamaru is noT permiTTing him To use The field He also sTaTes ThaT in The nighT, The complainanT had Taken meal in his house and in The nexT day morning, he lefT The house. 10. Vindhyabai (PW—3), moTher of The WiTness SheTTal Prasad (PW—Z) has noT supporTed The precuTion case and has been declared hosTile. 11. Abdul Rafique (PW—4) has sTaTed in his sTaTemenT ThaT abouT 1 1 years prior To The daTe of his evidence when he was l reTurning from village PraTappur on The way he meT The complainanT. SaTyanarayan, who had informed him ThaT The os l accused persons had chased him abused hlm and on account of fear he had given Rs 6/— ‘ro Them This wm‘less has further s’raTed fhaT compiaman’r had also Informed him fha’r The accused persons have ‘faken bag in which he was carrying Rs.500/— and one Torch. From The s’rafemenf of This witness, it is clear fha’r fhe emire incident was narrated To him by the complainant aSatyonarayan on the second day of the aiieged ate of incident and, therefore, the statement of the could not lodge; the report promptly; Once the complainant could inform the entire incident to this witness’ he could have lodged the prompt FIR and would not have waited for six days. ‘Furthermore, the statement of the complainant becomes doubtful that on account of fear, he could not lodge the report promptly. 12. Identification of the articles i.e.'torch.and the bag has been though supported by Ramashanker (PW—5) but a bare look of the proceedings of identification of these articleswill show that even the proper mixing of the articles was not done and only two bags and two torch were mixed at the time of the alleged identification of the articles. ‘ _ 13. In his statement complainant Satyanarayan (PW~8) has categorically admitted in paragraph No 14 that prior to the ,t Incident accused persons were not known to whim, however in 1 the Dehati Nalishl and in the FI R he had disclosed the name of lithe accused persons He further states that'lihe knows the name of the elder member of the family of the accused and he also knows the names of the father of the accused persons but __ .t, , r "* d . complainant becomes doubtful, that on account of fear, he before The dafe of madam The accused perscns were n0? known f0 him and even he canno’r remember as To who has dleciosed The name of The accused persons 10 him. This statement of The complainam‘ creaTes doubf in The case of The prosecution and does nof inspire The confidence of This CourT. As already discussed, Jhdriprasad (PW—1) and SheeTai Prosod (PW-2) havezcaTegorically sTaT'ed ThoT There was some civil dispuTe beTw'een The compiainanT and The accused Chamru, Therefore, possibiliTy of false implicaTion cannoT be ruled ouTl 14. Considering The ToTaliTy of The facTs in parTicular The naTure of evidence adduced by The prosecuTicn, This CourT is of The firm view ThaT The prosecuTion has failed To prove iTs case beyond all The reasonable doubTs. x :a‘w 1mm, 15. in The resulT The crimina appals succeed and are ‘ allowed. The impugned Judgmem‘ of The CourT below conVicTing and senTencing The appellanTs/accused under SecTion under SecTion 395 of The Indian Penal Code is seT aside. The appellanT/accused is acqUiTTed of The charge under SecTion 395 of The Indian Penal Code AppellanTs are reporTed To be on bail. Their bail bonds sTand discharged. ‘i ii pminker Diwaker Sdl— a ' Judge,” l e