FE E ‘\ \E) ‘\ IN ‘EHE HIGE‘COUEI‘ OF CHEATTISG£BH AT BILASPU'R (C.G.) an. éwg..u_.a~. ... .ndi. _»... “a. ~mna..n.¢.n. .... a ... " Qg g CB.REV' NOv : — ‘s‘aiQ_«-a;r«.~;‘ /'2002 :’ KRISNKANT PETE} S/O MDEATA PAEEL? AGE ABOUT 56 YEARS,R/O VILLAGE v N‘AVRMGEURJ;Sr.~s‘J;RA1mABE,DI-sm.e RAIGABH. (mm) PETIE‘IONER‘ COMPLAINMT VERSUS WONDENT / :1) Emmi s/o CHATRAM AGHARIYA, \ AGE ABOUT n :55 EARS, 2) BHAGEERATHI s/or DHANEERAM 630mm, AGE ABQUT—52 YEARS, BOUGHT OF RESEDEIT WLEAGE £2 S0NADUI3A,P.SwSARANGABHaxSTm- , BAIGARH (C,G.) 3) KHE§KDAS @ BABA's/o SUKHRAMDAS, AGE ABOUT—46 years,R/o VILLAGE~ AMALIDIPA,E.:s.-.SARA1\IGABH,DISTT‘~ HAIGABH {c.G.) i 4g, STATE OF CHHATTmsARa, THRDUGHT‘ :- 13.1%; maxim (am) cmmnm RivmIQN UNDER sECTION 597'; 8c 40f OF mama. .mw .. .‘ “ w;.l‘..._-_._.r_w--.m-...m- .w._.w*v‘.-.._,_'.._.._m 5 ;WM (Q? HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Revision No. 285/2002 Shri Vivek Pandey counsel for the petitioner. Shri Sunil Sahu counsel for respondents 1 to 3. Shri Ajeet Singh PL for respondent No.4/State, CRIMINAL REVISION UNDER SECTION 397/401 OF THE CODE OF CRIMINAL PROCEDURE. O R D E R (25 .11.2009) Present revision petition has been filed against the judgment dated 9.3.2002 passed by Additional Sessions Judge, Raigarh in Criminal Appeals No. 32/1999 and 31/1999 setting aside the judgment dated 6.2.1999 passed by the Judicial Magistrate First Class, Sarangarh convicting the respondents/accused for the offence punishable under section 380/34 of the Indian Penai Code a and sentencing each of them to undergo rigorous imprisonment for 7? three months and pay fine of Rs. 10, in default of payment of fine to further undergo rigorous imprisonment for 15 days. 2. Facts of the case in brief are that on 17.7.1997 a written 9.. complaint (Ex.P-1) was made by Krishnakant Patel (PW-1) alleging that on 13.6.1997 when he had gone to his field, he found one 5 HP Kirlosker Monoblock Electric Pump along with automatic switch as well as the main switch, missing there from. On the basis of the said report, FIR (Ex. P—2) was registered and memoranda of the accused persons were recorded vide Ex. P-5, Ex. P-6 and Ex. P-7. On the basis of disclosure statement made by accused Khikdas one automatic switch and three pieces of Chinese clay grips were seized vide Ex. P-8. PETITIONER Krisnkant Patel. COMPLAINANT VERSUS RESPONDENTS Peelababu and others. , g @ After recording the statements of nine witnesses, learned Magistrate had convicted the accused/respondents for the offence punishable under section 380/84 IPC. On appeal, learned Addilional Sessions Judge, Raigarh, set aside the judgment of the learned Magistrate and thereby acquitted the respondents/accused of the charge levelled against them. -1“ 3. 4. Counsel for the applicant submits that there is enough evidence available on record on the basis of which the lower appellate Court ought to have maintained the judgment of conviction passed by the learned Magistrate and thus the judgment impugned suffers from gross illegality and is liable to be set aside. 5. Perusal of the evidence available on record makes it clear that it is an admitted position that the electric motor pump has not been recovered from any of the accused persons and it is only three pieces of Chinese clay grips and one piece of automatic switch which are alleged to have been seized vide Ex. P—8. Ramdhan Patel (PW-2), Setram (PW—3), Pusau (PW-4) and Chirru alias Raisingh (PW-5) have stated in their statements that that electric pump belonging to the complainant was stolen and accused Khikdas had told them that if Rs. 4,000 were paid to him, said pump could be shifted to the place where it was installed. Thereafter, a panchayat meeting was convened in which accused Khikdas has denied any such admission. in respect of recovery of the articles vide Ex. P-8, seizure witnesses have not supported the case of the prosecution. So far as identincation of the articles is concerned, it is clear that no t proper mixing was done by the prosecution before conducting the/2 identification parade and only the alleged stolen articles were kept in the said identification parade and the identification was held in ' l presence of the police. lt is also admitted by Duryodhan (PW—7) that on the’report of accused Khikdas, Alekhram (PW—6) who was the Sarpanch of the village was removed from the said post. Thus from the evidence available on record it is clear that there were two, groups in the village and there was some dispute between the (39 parties and therefore possibility .of false implication of the respondents/accused cannot be ruled out in this case. 6. Thus after hearing counsel for the parties and considering the material available on record as well as the elaborate judgment impugned passed by the Court below, and being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led ._g_ by the prosecution and the trial Court taking one view favoured the accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, this Court is of the view that the .judgment impugned acquitting the respondents/accused of the offence under section 380/34 of the lndian Penal Code, is just and proper and does not warrant any interference by this Court. Accordingly, the revision petition has no force and the same is accordingly dismissedk/V/ / / / /” S?l. Pt"‘“k3“age . - e / i / l