m SlngrBeilch IN THE HIGH COURT OR JUDICATURE AT BILASPUR (C.G.) CR. M. P. NCL2?<2L^ / 2011 ACQUITTAL APPEAL No. _.. /;2011 I APPUCANT/ APPELLANT N *-^»* State of Chhattisgarh, . Through the Station House Officer, P.S. Kotwali, Raigarh •••"' District Raigarh (C.O.) ,w*.^> ^^.'e^/-—"-ft.VERSUS ^ NON^APPLICANT RESPONDENT Asif Khan, S/o Ekram Khari, Aged about - 28 years R/o Near GausKala, Raigarh, Distt. Raigt-ah (C.G.) APPLICATIONFORGRANTOFLEAVETOAPPEALUNDERgECTIOJS 378f5) AND MEMORANDUM QF APPEAL UNDER SB:CTIO 37&(1) OFTHE CODE OF CRIMINAL FROCEDURE, 1973 XI-HC—78 S^SS Vt R-( '^1 3TT^R'8R^ w. ^ TS? -<iWWA, VI-^WIS, ftclltiy ..(^?::...l±t:..-p;,...3..'?..3./^. NIHMI »>*<)<»» """'"' """"'"^ 200 3H*?I '^V (lyf'jif^'T) TOnWRft?r SI^T HonLte_Shri Prashant Kumfcr Mishra, J. th the next date i.e. the 12 application was moved by the| for condoning his absence. Thji the prosecution for recordingj chf^i'1-^1 iTR^ff if -fe^ Tf^T?^ ^ SifiPT 311^1 26.07^011 Shri Sudhir Bajpai, Dy.^j.A. for the State/applicant. On the report of one peepak Sharma the prosecution filed charge sheet against fhe accu^ed for offences under Section 294 and 506-B ofIPC. The charge s^eet was filedon 30/11/2007 and the parriculars of charge were ex^lained to the accused on 22/04/2008. The matter was Ifaereafter ^iosted for recording of evidence of prosecution witnesses and su^nmons were issued. It was regularly fixed for at least 1 1 dates for ^ecordiag of evidence and tfaereafter on 'date of hearing on 15/12/2009 an |w,'itaess/first mformant Deepak Kumar ije trial court granted last opportunity to evidence. However, on the next date i.e. on 15/01/2010 witness Qeepak Sharma again remained absent and the trial court again obse^ved that last opportunity is granted for recording of evidence. Yet a^ain the prosecution witness remained absent on 8/02/2010 and the bounsel appearing for the complainant Deepak moved an application counter ease and thus both t(ie matters were posted on 5/03/2010, 17/05/2010 and lastly on 26/Oj for taking up tfae matter along with the V2010. wqcir ^>w^ "s^r ''-{wm-'i, rswwf-a, |a|<rtiy^< ^..^^^..^ihi.. •W^ 200 •an^rriw (iyi^<^) s^vs VtWl'h '(CT 3ff^?I Sfi*fl4> 'tS- 6C-, 'RtTOTtlftf W^S ^ft^f^H^W^ ^ Ty^ ?i^n~g^ ^t SlfOT 3II?5I On finding that the v^itnesses again remained absent on 26/08/2010 the trial court clpsed the prosecution evidence after observing that similar order ha The court thereafter acquitted ^ been passed in fhe counter case also. jlhe accused for want of prosecution evidence. This application seeking illegal. the trial has progressed and the fact that Deepak the witnesj represented by a counsel and and mspite of observation leave to appeal has been preferred on the ground fhat when the witn^ses failed to appear in response to the summon issued by tfae trial cojirt, the said witness shoud have been issued bailable warrant and thbreafter wanant of arrest and without proceeding in this manner cl^ser of tfae prosecution evidence was As has been narrated ab^ve in detail as to the manner in which Ifae prosecution witnesses failed to appear on umpteen number of(imes and more particularly in view of who lodged the first infonnation was on tfaree dates of hearing application seeking absence oftfae said wi^ness was moved before the trial court made by the trial court that last opportunity for producing witpesses are allowed to the prosecution, the Jfailure of the prosecution 1 P^h acquittal ofthe accused. |o examine witness ultimately resulted A!^S s?i5!^ M 'S^ --ii"-!i")<<, yfll'a'i-a, f^frii'yy ^'.^.^...^.IbL ^IHWI »^l<h'''"'"''"'^^200 -aili<! 'T^; ('^3^*1) ^i^i^RRi-iU w .aiAiti **< iW, ls-%A..»J ^ ^^4"^' ' •fii»'.'l ,1 ^ L-' v^ S,ft,'-f-yt'-.''iv^ •»is»3;i;tac*.* THTOTHfta an^? x'....... In the opinion oftius any error m acquitting It is also to be seen tha^ ia.thetimpHgne^ prder of a4quittal "ccxaff'oaSffVs^JiS^wiQi *^^. <sbh ^p^fc^ buoiptSection 29 ^»^»^frui >^^--^ cjourt, the trial court has not committed the accjised for want ofprosecution evidence. the counter case was also pending and a4quittal it has been observed that the fate. The offence alteged against Ihe 1 and 506.B ofIPC. t;ircumstances, the trial court has not simuar - •-'—-bt.^t^i&^Sfyof the SWWi <.(»iij»(gp^g^j,^ ^ any CTroi- in passinfe Ae order ofacquittal No case for granring le4ve Consequently, the appl^ation ..........._^. •k*<< m isaai.aWiS '^^»^Lti.'.*'*,<-^^^^ ^'t^^..- ..?,'*-<''.*t.3t.33,Sii. „.......,:....-..,... ,^.'?yn^y.' ^"t.^'^^S'^^ -^. ?*?eH?i'^^C*<^^ '"''- ^i^ •^.;;5X5y—.~;??"T <^l<ii<1<ft^ ^iW"S "9 fe^ ^f<*^rt ^sifirasiK^ to appeal is made out. ion is dismissed. Sd/- "^ Prashant Kumar Mishra Judge ^ 868B K6 l^ • s@ 68•