13' HIGH COURTOF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Criminal Appeal No.872 of 2007 Bada Vikas @ Balkeshwar and others versus State of Chhattisgarh JUDGMENT Post for So -03-2009 Sd/- Dilip Raosaheb Deshmukh Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Dilip Ra^sah^b Deshmukh, J. ADpellants (In Jail) Respondent Criminal Appeal No.872/2007 1. Bada Vikas @ Balkeshwar, S/o Tiwari Uraon, Aged about 30 years, occupation, agriculturist, R/o Village - Doki, P.S. Manika, Dist. Latehar (Jharkhand). 2. Gautam @ Naresh @ Dharmendra, S/o Fulsai Gond, Aged about 23 years, occupation - agriculturist R/o Village Gharghodi, P.S. - Basantpur, Dist - Surguja, CG. 3. Banjari @ Sachin @ Panika, S/o Basant Cherawa, Aged about 22 years, occupation - agriculturist R/o village-Manikpur, P.S. / Chalgali, Dist. - Sarguja, CG. versus State of Chhattisgarh, Through Police Station, Balrampur, Distt-Sarguja (C.G.) Criminal Appeal under Section 374 (21 of the Code of Criminal Procedure Present: Shri Sachin Singh Rajput, counsel for the appellants. Shri Sudhir Bajpai, Dy. Govt. Advocate theState/respondent. JUDGMENT (Delivered on this ^>4t'dav of March,2009) This criminal appeal is directed against the judgment dated 30.08.2007 in Sessions Case No. 410 of 2006 by the 1st Additional Sessions Judge (F.T.C.) Ramanujganj, Surguja whereby the appellants were convicted under Sections 147, 148, 353, 186 and 307 read with Section149 ofthe I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.100/- under Sections 307 read with Section y ^ f isS^, 149 of the I.P.C., rigorous imprisonment for 3 months under Section 186 I.P.C. and a fine of Rs.100/- and for each of the remaining offences rigorous imprisonment for one year respectively and a fine of Rs.100/- and in default of fine, the appellants to rigorous imprisonment for further one month. 2. Brief facts are that on 14.11.2004 at about 7.00 A.M., the Superintendent of Police, Surguja accompanied with Ajitesh Singh P.W.11, Station House Officer, Police Station Balrampur and other potice personnel went patrolling towards Daldhova Ghat on motor cycle. All of a sudden, Naxalites started firing on the police party while raising slogans. The police party also took positions and warned the Naxalities to surrender. However, the Naxalites intensified the firing. Under orders of the Superintendent of Police, the police personnel also fired on the Naxalites in retaliation. The Naxalites fled towards the jungle. Chasing the Naxalities, the police personnet went upto Jhalaha forest and thereafter came on the main road of Semarsoth and found some vehicles burning. One Bus driver informed that the Naxalites had fired on his Bus. On this information, seating the passengers in Ambika Bus, the police personnel went towards a place called Rajpur 200 meters from Pastha. On receiving information that the Naxalites were at the border of Balrampur, the police personnel went towards Balrampur border in Ambika Bus with the passengers seated therein. On reaching the border the police personnel saw three Naxalites near the border adjacent to the forest who were asking the passengers of another Bus to get down. When the police personnel in Ambika Bus reached near them, the Naxalites again started firing on the Bus. The police personnel jumped ^. out of the Bus took cover and fired in retaliation but the Naxalites fled. Despite search, the Naxalites could not be apprehended. During the three encounters, the Naxalites who were 35 in number had fired around 100 rounds. The police personnel fired 14 rounds. An offence under Section 147,148, 149, 307, 353 and 186ofthe I.P.C. and Section 27 oftheArms Act was registered vide F.1.R. Ex.P.8 against unknown Naxalites at 8.40 A.M. on 15.04.2004. The rounds fired by the police personnel by A.K. 47 and S.L.R. guns were recovered on being produced by B.S.Bhoi, Platoon Cammander, S.T.F. P.W.5 vide Ex.P.2 on 15.11.2004. Spot map was prepared by Shiv Prasad P.W.1, Patwari, on 10.06.2005. None amongst the police personnel or the Naxalities got hurt inthe police firing. No material was produced to substantiate any damage to any Bus due to firing. None of the passengers who were seated in Ambika Bus were examined by the prosecution. 3. The appellants Bada Vikas @ Balkeshwar was arrested on 26.06.2006 while the appellants Banjari and Gautamwere arrested on 15.09,2006. After comptetion of investigation, prosecution was launched against the appellantsand other co-accused. No test identification parade was held for identifying the appellants. 4. The appellants abjured the guilt, pleaded false implication and led no evidence. The prosecution examined as many as 11 witnesses. Relying on the testimony of Constable Babu Singh P.W.4, Platoon Commander Bhogilal P.W.5, Section Commander Junas Minj P.W.6 and I Head Constable Sushil P.W.^, the learned trial Judge convicted and sentenced the appellants as aforesaid in paragraph 1 (supra). 5. Arguments of Shri Sachin Singh Rajput, learned counsel for the appellants and Shri Sudhir Bajpai, learned Deputy Government Advocate were heard. Record is perused. 6. Constable Babu Singh P.W.4 deposed that after cross fire near Daldhova Ghat he had identified three of the fleeing Naxalites who were the appellants. However, in cross-examination paragraph 3 he admitted that in his statement under Section 161 ofthe Cr.P.C. he did not name the appellants. Statement of Constable Babu Singh was recorded on 12.06.2007 i.e. over two and half years after the occurrence. He admitted that he had disclosed the names of the appellants for the first time while deposing before the Court. He further admitted that at the time of the cross fire he did not know any ofthe Naxalites. This renders his testimony wholly unworthy of credit. 7. Platoon Commander Bhogilal P.W. 5 deposed that after the cross fire near Daldhova Ghat, the Naxalites had fled and chasing them they had gone two kilometers from Semarsoth and found that the Naxalites had set fire to a vehicle. No such vehicle was seized by the police. He further deposed that the Naxalites had again fired on the police personnel and they had also fired in reply, due to which, the Naxalites fled. According to him, in the cross fire at Semarsoth, he had seen the appellants. However, he did not depose that he had seen the appellants firing on the police personnel. According to him, thereafter they went towards Rajpur and near Basen there was again an exchange of fire during which he had identified the appellant Bada Vikas. He admitted that he had named the appellants for the first time while deposing before the Court and did not ^^•^ name the appellants in his statement under Section 161 Cr.P.C. This renders the testimony of Bhogilal P.W.5 wholly unworthy of credit. 8. From the testimony of Bhogilal P.W.5, it thusappears that there was an exchange of fire between the Naxalites and police personnel at three. places. Firstly near Daldhova Ghat, secondly near Semarsoth and lastly towards Rajpur near Basen. However, the charge framed by the learned 1st Additional Sessions Judge pertains only in relation to the exchange offire which had taken place at 7.00 A.M. at Daldhova Ghat. 9. Section 212 (1) ofthe Cr.P.C. reads as under: "212. Particulars as to time, place and person.—(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged." A plain reading of the above provision shows that the charge must mandatorily contain particulars as to the time and place of the alleged offence and the person against whom it was committed so as to reasonably give accused notice of the matter with which he is charged. In the present situation the charge framed by the learned Additional Sessions Judge relates only to the exchange of fire that had taken place at Daldhova Ghat and not in relation to Semarsothor Rajpur near Basen. Each of the incident was separate and therefore non-mention of the particulars as to the place of the alleged offence at Semarsoth or Rajpur near Basen has prejudiced the appellants in the trial. It cannot be said that the appellants had notice of the place with which they were being /"/' '-A •^^f^ charged. For this reason conviction of the appellants on the testimony of Platoon Commander Bhogilal P.W.5 is unsustainable. 10. Section Commander Junas Minj P.W.6 deposed that he had identified the appeltant Bada Vikas while he was fleeing away. In cross- examination, he stated that on the date of occurrence one of the police personnel had told him that Vikas was one of the Naxalites. He admitted that he did not disclose the name of the appellant Vikas in his statement under Section 161 Cr.P.C. and was disclosing the name ofthe appellant Vikas for the first time in court. This renders the testimony of this witness unreliable. The testimony of Head Constable Sushil P.W.7 that amongst the Naxalites he had identified the appellants Gautam and Banjari at Daldhova Ghat and thereafter during the exchange of fire at Pastha he had identified the appellant Bada Vikas who was fleeing is also rendered wholly unworthy of any credit for the-same reason. 11. It is stranger than fiction that at three places, the Naxalites, 35 in number, extensively fired on the police personnel but not a single empty container of the cartridges fired by the Naxalites was recovered and seized. Only empty bags of the cartridges fired by the police personnel were recovered. It is equally strange that neither any one in the police party nor amongst the Naxalites was hit by the bullets during the fire. It is also strange that none of the vehicles which were burnt or damaged due to fire by the Naxalites were seized. None of the passengers who were seated in Ambika Bus were examined by the prosecution. 12. If Constable Babu Singh P.W.4, Platoon Commander Bhogilal P.W.5, Section Commander Junas Minj P.W.6 and Head Constable Sushil P.W.7 had seen the appellants firing on the police or fleeing away thereafter, the names ofthese appellants would have found place in F.1.R. Ex.P.8 lodged on 15.11.2004 i.e. a day after the occurrence, which was registered by the Ajitesh Singh P.W.11 against unknown persons. Testimony of Ajitesh Singh P.W.11 is wholly silent so far as the involvement of the appellants in the exchange of fire at Daldhova Ghat is concerned. 13. Having thus considered the evidence led by the prosecution in its entirety, 1 am of the considered opinion that the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubt for the offences mentioned in paragraph 1 (supra). The conviction of the appellants and the sentence awarded thereunder by the learned Additional Sessions Judge, Ramnujganj are therefore liable to be set aside. fX^>t^t- 14. In the result, the GippollofiMs allowed. Conviction of the appellants and the sentence awarded thereunder by the learned Additional Sessions Judge, Ramnujganj as mentioned in paragraph 1 (supra) are set aside. The appellants are acquitted of all charges. Sd/- DiUp Raosaheb Deshmukh Judge \\