H^llftlilllB ; |:.II^^IB^i llttlllllB TO ^. AL—1^ CFOOdW5921"4 &.CCIBED IN 3?t.33t CLBTOm, Singls Baich ^CrimiMl IN THE H3BH COURT OF M^OHyft. PR.2tDESH, >3&Bft.apUR M.P. Crl. APPE&I, No._^?'J _yi992. r /-' ^ . Rakesh Kumar Sirtgh, aged 26 yrs, s/o Sialloo HeUtar, res.ideat of / Railway Coiony, MaiBndragarh, Slstt. Sarguja, Madhya pradesh. ... Aapellan-t versus Sstate of Madhya pradesh, "Ehrough G.R*P.» Shahdol. M»P,. ».. 1U&* ii&» ^;!> ^O^-VI-AV, i' ApPElX. ^GMIBt THE ORIKK, OF CONVICTJQN KSD SENIE1CB_ ^3SEDi.^_B_^7'rHE KBS&.:'3VBCS.TO THE^GOtRT OF .SBSSSI^, S^GUX-0;N-"5.3L.i392_ IN SE3SI01B TR I. N0. lt5/90^ iu» -% Lj ^y s i t>"l.^""»»* ^,^' fl':1' HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Pritinker Diwaker, J. Criminal Appeal No. 371 of 1992 Aopellant : Rakesh Kumar Singh Versys Respondent : State of Madhya Pradesh .(now Chhattisgarh) APPEAL UNDER SECTION 374 (2) OF THE CR.P.C. Present: Smt. Kiran Jain, counsel for the appellant. Shri Rajendra Tripathi, PL for the State. ORAL JUDGMENT (23RD February, 2010) The present appeal arises out of the judgment and order dated 5.3.1992 passed by the Additional Sessions Judge, Manendragarh in Sessions TtialNo. 115/1990 wherebythe appellant has been convicted for the offences under Section 392 read with Section 397 of the I.P.C. and sentenced to rigorous imprisonment for 7 years. 2. Case ofthe prosecution in brief is that on 17.03.1990 F.I.R. Ex.P.1 was lodged by Pramod Kumar P.W.3 at Police Station Manendragarh alleging in it that when he was travelling in the train along with his friends namely Shivcharan Lal P.W.6, Rajesh P.W.7 and Bhura P.W.8, the accused appellant eame there and had snatched one air gun, a wrist watch and Rs.100/- from him. It is also alleged that the offence was committed on the point of Gun which the accused was carrying. On the basis of this report registered by Manendragarh Police Station on 18.03.1990, vide Ex.P.2 F.I.R. was registered by Railway Police, Anuppur and after investigation challan was filed against the accused for the offences under Section 392 and 397 of the I.P.C. Charges were also framed againstthe accused forthe same offences on 31.07.1990. 3. In support of its case, the prosecution has examined as many as 10 witnesses. One witness has also been examined by the accused appellant in his defence. The statement of the accused was also recorded under Section 313 of the Code in which he denied the charges .«.»»,L<..-,i>s-.»i«u.A.fiBUWt'atta8tsa»taBM:tt8»sta*»*u*t '^,SI!SSSi t '':|[;'i;^-iS:§^; ^ ts'} .& .f f '""••y^»i' '^^ G levelled against him and pteaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted the present accused / appellant as stated above in paragraph 1. 5. The learned counsel for the appellant submits that the friends of the complainant namely Shivcharan Lal, P.W.6, Rajesh, P.W.7 and Bhura, P.W.8 have not supported the prosecution case and have turned hostile. She further submits that though the appellanVaccused was not known to the complainant yet the F.1.R. has been lodged by name and as no test identification parade has been held, the entire case of the prosecution becomes doubtful. She also submits that vide Ex.P.5 the air gun ofthe complainant is alleged to have been seized from the accused, however, this seizure was made on 20.03.1990 at about 11.15 A.M. where as the accused was arrested at 11.30 A.M. Thus, the seizure which has been made prior to the arrest of the accused becomes doubtful. She further submits that even in the seizure memo, the place from where the air gun is alleged to have been seized has not been mentioned and this major lacuna in the case of prosecution entittes the accused appellant for his acquittal. She also submits that on 17..03.1990 itself the air gun which was allegedly robbed was shown to the complainant in the police station itself, and therefore, the so-called seizure of the said air gun vide Ex.P.5 has got no value in the eye of law. Lastly, it has been argued that the appellant has already remained in jail for more than 5 years and no useful purpose would be served in convicting and sentencing him for the offences as mentioned above. 6. On the other hand, while supporting the impugned judgment, it has been argued by the State Counsel that the judgment is strictly in accordance with law and there is no infirmity in the same. He submits that the named F.1.R. has been lodged by the complainant because the name of the accused was told to the complainant by Shivcharan Lal P.W.6 and Rajesh P.W.7, and therefore, there was no occasion for the prosecution to conduct the test identification parade. He further submits that even if the seizure has been made prior to the arrest of the accused, "''>l-:-<'-^'.r-<T"+- .K; .s» ff .,-*^ @ the same will not give any benefit to the accused because the fact remains that the accused was arrested on 20.03.1990 and seizure was also made on the same date at about 11 .00 A.M. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. From the statement of the complainant, it appears that on the date of incident i.e. 17.03.1990 when he was travelling in the train along with friends namely Shivcharan Lal, P.W.6, Rajesh, P.W.7 and Bhura, P.W.8, near Railway Station Boridand, the accused appellant came there and showed the country made pistol to the complainant and then robbed his air gun, wrist watch and Rs.100/-. He has further alleged that just before the Manendragarh Railway Station, the complainant got down from the train, went to his hotel and narrated the entire incident to his brother Santosh Kumar P.W.4. It is also alleged that thereafter he went to the police station, Manendragarh and lodged the F.1.R. Ex.P.1. He has further alleged that when he got down at Railway Station, Manendragarh and had informed his brother Santosh Gupta about the entire incident, he was not aware of the name of the accused/appellant. However, his friends Rajesh, P.W.7 and Shivcharan Lal, P.W.6 had informed him and his brother that the offence has been committed by one Rakesh Kumar, resident of Railway Colony, Manendragarh. In paragraph 12 of his cross- examination the complainant admits that on the date when he lodged the F.1.R. at about 10.00 p.m. The police authorities had brought his air gun in the police station. The statement of the complainant has been supported by the brother Santosh Kumar Gupta, P.W.4 who has stated that on the date of incident his brother Pramod Kumar had informed him about the commission of the offence. This witness has furtherstated that thereafter he lodged the report along with the complainant. From the statement of these witnesses, it is clear that there are material omissions and contradictions in the same which are apparent from paragraphs 7,9 and 10. Ramjiyawan P.W.5 is the seizure witness of Ex.P.5, has stated that on the date of incident he was selling groundnuts and was called by the police constable to sign one document. He states that on account of 7 fear of the police he had signed the said document. Thiswitness was subsequently declared hostile by the prosecution. Shivcharan Lal P.W.6, Rajesh P.W.7 and Bhura P.W.8, friends of the complainant, have not supported the prosecution case and have turned hostile. Phool Singh Kushwaha P.W.9 who is the investigating the matter has supported the prosecution case. Poshan Lal Tiwari is another seizure witness of Ex.P.5, has stated that the air gun was seized from the accused in the Anuppur police station where the accused was in the lock up. 9. Upon close scrutiny of the documents, it appears that the air gun is alleged to have been seized vide Ex.P.5 on 20.03.1990 at about 11.15 A.M;, however, no place whatsoever has been shown in this document as to from where the seizure of air gun was made. Furthermore, the seizure is alleged to have been made on 20.03.1990 at 11.15 A.M. whereas as per the arrest memo Ex.P.6, the accused was arrested at 11.30 A.M. on the same date. Thus, the seizure Ex.P.5 becomes doubtful since no place whatsoever has been mentioned in the seizure memo regarding seizure of air gun. The complainant in the cross-examination has himself stated that the air gun was shown to him in the police station by the police authorities on 17.03.1990 i.e. the date when the F.I.R. was lodged. Likewise, one of the seizure witnesses, Poshan Lal Tiwari P.W.10 has also stated that the seizure of the air gun was made at Anuppur police station. Thus, the entire seizure of the air gun becomes doubtful and the appellant is entitled to get benefit of the doubt. Furthermore, the three independent witnesses who were accompanying the complaint at the time ofthe commission oftheoffence have also not supported the prosecution case and have turned hostile. The F.1.R. has been lodged by the complainant by naming the accused whereas the accused was not known to him. 10. Considering the totality of the case, the entire case of the prosecution becomes doubtful and the benefit of the same has to be extended to the appellant. Impugned judgment is not in consonancewith the material collected by the prosecution and therefore, it has to be dislodged. aSpn|> J3>(BM!a J3>|U4Ud VPS 'peBjBqosip eje spuoq [leq sjq '|]eq uo sq o} pefjodsj si (UB||9ddB sqi -luiq ^suieBe p9||SAe| sBjeqo 94} ^o peuinboe si iue|[8ddv 'spise }ss si }U8Lu6pnf pauBndiui aqi pue PSMO||B si '}|nssj e se '[esddv • 1.1.