'•i?s*. iilK; APPELLAN'E YrNTATL^ v~'"1—r lNl'UEffiCTMOC>URTOffJUDI6Al'UK£:ATBlLASPtJft(:C,<K) y:^;,^^^.:.:'_:'.,:::;:^ : t;RtMlNAL;A EAl-;NO^Ie^/26u^' ^ ;; r: ' V^KSUS & Mofi^ AcharyaS7ct ^ .' ^ Marvkn'chna Anbfln^a i ^ aged.aboutl&yeaFS^.R/QlShivaji IMagar Lal Babu Kil-ana^Stores ICe PaQs ^ lch^%ipftr.T^^^^ ehhawaiuDsit.Durg(C^ State of jChhattisgarh gAJJHli :llN®t^S.y©^(M;^BB®l^(.}^ .T3R^KEM'ETW:-l^Sy ,»wwxs •^asi .fc'HI ::KXl tlflll 11!! ^-^g^^j IBfliBB HI6H COURT OF CHHAmS6<4RH AT BILASPUR Single Bench: Hon'ble Shri bILIP MOSAHEB DESHMUKH. J. Crimmal Appea! Nuinber-286/2006 B. Mohan Aach&rya State of Chhattisgarh Poramjeet @ Pamme Vs. State of Chhattisgarh Post for Orderh^^i , Sd/- Dilip Raosaheb Deshmukh Judge ..-•y ___At s». ';K*3 ^--^^s^^f^^^^S- w HI6H COURT OF CHHATHS6ARH AT BILASPUR Single Bench: Hon'ble Shri DILIP RAOSAHEB &ESHMUKH. J. Criminal Aspea\ Number-286/2006 B. Mohan Aacharya Vs. State of Chhattisgarh Criminat ApDeai Numbsr-960/2004 '•'t @ pl Vs. State of Chhattisgarh Shri Arun Kochar, learned counsel for the appellant B.Mohan Shri Pankaj Agrawal, learned counsel for the appelldnt Shri Parag Kotecha, Panel Lawyer- for the State. IUD6MENT (beli'/ered onlS -06-2006) This Common judgment shall govern Criminal i^ppeal No.286/2006 preferred by B. Mohon Aacharya and Criminal Appeal No.960/2004 preferred by Paramjeet © Pamme. Both the appellants were convicted under Section-353. 307 and 427 I.P.C. read with 5ection-34 of IPC and were sentenced to undergo rigorous impri'sonment for 1 year and to a fine of Rs.500/- under 5ection-353 t'ead with 5ection-34 of IPC, to rigorous imprisonment for 5 years cmd to a fine of Rs. 1,000/- under Section-307 read with Section-34 of IPC and to rjgorous imprisonment for 1 year and to a fine of A-—-' Rs.500/- under L.R.Thakur, iear vide judgment No.107/2004. Section-427 read with Section-34 of IPC by Shri VIIIth Additional Sessions Judge, (F.T.C.), t)urg dated 04-11-2004 delivered in Sessions Trial 2. The factual matrix in brief is that on 01-02-2004 at 00.10 Hrs. Constable Padum lal Sahu No.557 PW-1 ond Constabls Hitesh Kumar No.260 PW-2 who were on wireless dut/ at Police Outpost, Anjora, received information from Bhilai Police Control Room that one white coioured Tsta Sumo Vehicle bearing Registration No.C.6.-04-B/5739 carrying illicit liquor oind driven by B. Mohan Rao had fled after being intercepted by the police ond had to be intercepted at Police outpost, Anjora. On receiving this information, Constable Padum lal Sahu PW-1 puiled down the barrier at Police Outpost, Anjoro. Soon thereafter, the aforesaid vehicle was seen coming towards the barrier and was signaled to a hait. However, the driver of the aforesaid vehicle while attempting to crush Constable Padum lal Sahu PW-1 underneath the vehicie broke the barrier and fled with the Tata Sumo Vehicle. 3. F.I.R. was registered at Police Outpost, Anjora on 01-02-2004 at 00.45 i-irs. vide Ex.P-1 and thereafter at Police Station-Pulgaon at 02.30 Hrs. vide Ex.P-2. Assistant Sub Inspector Pramod Rusia Incharge of Police Outpost, Anjora PW-8 seized the broken glass sarticies of the front screen of the Tata Sumo Vehicle lying under the barrier vide Ex.P-3 at 11.00 Hrs. on 01-02-2004. Tata Sumo Vehicie bearing Registration No.C.&.-04-B/5739 with its front glass and right indicator light broken was seized on 01-02-2004 at 12-45 31 & ,'-r/ Hrs. vide Ex.P-4 from appellant B. Mohan Aacharya. Spot map was prepared by Assistant Sub Inspector Pramod Rusia vide Ex.P-9 on 01-02-2004 and by Patwari 5. R.Baghel PW-5 on 25-02-2004. Af-ter compietion of investigation, both the appellants were prosecuted under Sections-353.427 and 3071.P.C. read with Secti(»n-34of IPC. 4. Both the appsllants abjured the guiit. The prosecution examined as many as 9 witnesses. No evidence in defence was led by the appei!ants. Re\y'mg upon the evidence led by the prosecution, the Searnec' trial Judge convicted and sentenced the appellants as aforesaid in para-1. (Supra) 5. Shri Arun Kochar, iearned counsel for the appeliant B. Mohan Aacharya and Shri Pankaj Agrawal, learned counse! for the appellant Paramjeet @ Pamme haye cssailed the impugned judgment on the ground that there is not even an iota of evidence to prove the guiit of the appellfints under Section-307 of IPC. It was contended that the evidence l&d by the prosecution created a serious doubt as to who was ar'i'ving the vehic!e at the time of the alleged incident. It was also contended that presence of Pcramjeet @ Pamme inside the Tata Sumo yehicle oit the time of incident was extremely doubtful. Both the learned counsel emphatically argued that the broken barrier had also not been seized by the police. Lastly, it was contended that the learned triai Judge erroneously drew asn inference of guilt against the appellants on the basis of their reply to the notice under Section-91 of Cr.P.C. which could, in no case, form the basis under law to convict the appeilants. On the other hand, Shri Parag Kotecha, learned Panel,- ^»- / Lawyer appearing for the State argued in support of the impugned ^. .|u0< ent. 6. Having considered rival submission, I have perused the record minutely. Constable Padum ial Sahu PW-1 in para-7 of hls testimony stated that he was on wireiess set duty at the time of occurrence. In p.ara-11 of his testimony, he has also stated that he did not see as to wh.o was driving the Tata Sumo Vehicle. It is pertinent to note that in para-11 or his testimony he has cleariy stated that City Superintendent of PoSice, &urg and Fiying Squad were closeiy chasing the Tata Sumo Vehicle and after the occurrence Cit/ Superintendent of Poiice had gone to the Police Outpost where he had informed City Superintendent of Police that the Tata Sumo Vehicle did not stop at Police outpost, Anjora and on such information City Superintendent of Police.&urg immediateiy ieft towards Somni. This statement by itself d'eates a serious dent in the prosecution story ond makes the entire prosecution story highly doubtful. It clearly shows that at the time of ths aiieged occurrence Constable Padum lal Sahu was on wireless duty at Poiice Outpost not at the barrier. It atso raises a serious doubt that the sntire prosecution case is fatse and has beeri concocted. 7. It is a\so pertinent to note that neither Constable Padum lal Saliu PW-1 nor- Constable Hitesh Kumar PW-2 stated that any attempt was made to crush Padum tal Sahu under the Tata Sumo Vehicle. In para-6 of his testimony he has admitted that he had seen only one person in the said vehicle.In cross examination, he has emphatically asserted the same statement. Assistant Sub Inspector S.R.Sahu v---- ^ PW-9 who was ciosely chasing the Tata Sumo Vehicle a!so did not state that any attempt was made by the driver of Tata Sumo Vehicle to crush the Constable Padum lal Sahu PW-1. He simp!y stated that the driver of the Tata Sumo Vehicle broke the barrier in front of the Anjora Police Outpost cmd fled with the vehicle. Thus, the entire prosecution story that an attempt was made to crush Constable Padum lai Sahu PW-1 under the Tata Sumo Vehicie when he signaled it to a hait while standing at the barrier is rendered doubtful. F.I.R. Ex.P-1 registered at Police Outpost, Anjora immediately after the occurrence end Ex.P-2 registered at P.S. Pulgaon soon thereafter shows that B. Mohan Aacharya was dr'wmg the Tata Sumo Vehicle which had fled towards Rejnandgaon. There is no mention that Paramjeet © Pamme or any other person was accompanying the driver. Assistant Sub Inspector Pramod Rusia PW-8 admitted that appellant Paramjeet ©Pamme was arrested on 27-02-2004. Assistant Sub Inspector 5. R. Sahu PV</-9 has stated that during investigation it came to iight that appellant Paramjeet © Pamme was driving the Tata Sumo 'v'ehicle and had escaped when the Tata Sumo Vehicle was finally intercep+ed at Rajnandgaon. A perusal of the record clearly shows that notice under Section-91 of Cr.P.C. was gwen to both the appeliants to disclose what was being carried in the aforesaid vehicle at the time of occurrence and who was dfivin9 the vehicle. A perusal of the repiy given by the appellonts to the notice in their own hcndwriting leaves no room for any doubt that it was got written per force by the Police from the appe!lants. In any case, it could not form tne basis for convicting the oppeilants. v..- - /£:? / '~7 9. The evidence ied by the prosecution does not estabiish that the appellant Parsmjeet ©Pamme was driving the Tata Sumo Vehicle at the time of occurrence. While Assistant Sub Inspector S.R.Sahu PVi/-9 has stated in para-2 of his testimony that Paramjeet © Pamme fled away when The vehicle was intercepted- at Police Kotwali, ftajnandgaon, Constable Padum lal Snhu PW-1 has contradicted this by stating that only one person was sitt'ing inside the Tdta Sumo Vehicle who was perhaps 3. Mohan Aacharya. Constable Hitesh Kumar PW-2 has categorically stated that in para-6 of his testimony that he had seen only one person in the Tata Sumo Vehicle and no person besides the driver was sitting in the Vehicle. No explonation was given by the Assistant Sub Inspector Pramod Rusia PW-8 for not affscting the seizur-e of the broken barrier which also renders the prosecution story doubtful. In parc-12 of his testimony he has further stated that investi9ation revealed that the appellant B. AAohan Aacharya was not driying the Tata Sumo Vehic'e. In ths tight of the above highly contradictory evidence the testimony of Assistant Sub Inspector S.R.Sohu PW-9 that the appellant Paramjeet © Pamme had fled while Tata Sumo Vehicie was intercepted at Police Station-Kotwali, Rajnandgaon becomes sxtremely doubtful. 10. Having thus considered the evidence led by the prosecution in its entire-ty, I am of the considered opinion that the entire prosecution story is highly doubtful and conviction of the appellants under Sections-353, 427 and 307 read with Section-34 of IPC and the sentences awarded thereunder by the learned trial Judge is liable to be set aside. ,^-J ^^^^'^^^gg^^ :'^'S^.y:^G' SSiSiSSiBSWXiiSiS9K SWS;WSS SSW5W^fwS 11. Consequently, both Cr. Appeal No.286/2006 & Cr. Appeai No.960/2004 ar-e allowed. Conviction of the appellants under Sections-353, 427 cind 307 read with Section-34 of IPC ond the sentences awarded thereunder by the learned tr-ial Judge are set esside. The cppeilants are acquitted of ail charges. Fine if paid, shall be refunded to the apDeliants. Sd/- Dilip Raosaheb Deshmukh Judge