^ ^^THE HSGH' COURT OF AT CH9ATTJSGARH M,C_r.C,iSio, CRjA,_No,_ ^) ^ OF 200^ lAPPELLANT L .--•"" ^\.\6-'?;"^....--" A°"--^«..v-^"^ocate ^a^^-- .^.^ ."^r State of Chhattisgarh VE RS U S Jani Verma, about 24 years, S/o. Pyare Lal, R/o. Ward No.7, Sankarpur, Rajnandgaon, District Rajnandgaon, CHHATTISGARH APEUCATiON FOR GRANT QF. LEAVi_TO_APPEAL .ji^ -. _^. ^s^.. w^ ^:..- ^^ .c r'^ &?;^ ••HIQH,COUR.T..QP'CH:HATTISQAX%H'AT_BXLABPUR ,' ,•" SB,LHON?BLB' MR. '^Ii'^TICB PRITIWKBR.DIWAKER .,. " ,.Ac^;A. N0. 36/20^9 ^PELLANT'.'.."."-'••':-'.:••'•••'.••?' • State o^Chhattisgarh .'. yersus HJSSPONDB»?TS- ".' ' . JaniVenna MEMO OF CRIMINAL APPEAL UNDER SBCTION 3781 li 0^ THE'Cr.'P»C. '- ^-••. •• . •.•..'•' •- • Appearassce: - . '-••• -••^".-•• - .-. ." -: ":"V^. Shn Saiaeer Behar, P.L. for the appellant/State. Shri S.C.Verma, couusel aloug with" the.-x^spoiident. :', 'A' :' ORD.BR. • , '. ^' ^ •, '^\•/ "(l1.12^009) .. .•---' -:. . ;'-^;, The prcseut appeal has been direeted agaiiist the rmpugned judgiiientdated 1,10,2003 passed by th.e Jiidiciai Magistrate First Glass, Rajnaiidgaon in Cr. Case No. 185/2003 whereby tiie respondent has been acquitted of the offences under Sections 457 & 380 IPC. w m 2. As per the case of tbe prosecution, on 31.3,2008, FIR -Ex.P/ 1 was lodged : by Vishnu Ram. Dewao.gan. (P,W.-1) allegiag io. it ttiat iii fhe interveniag night of 24-25,3.2003^ soiaeoue has stolen the water pump of Vikiag Compaiiy froHi his house. On fhe basis of fhe recoveiy <5f the said pump from P.W.-3 Derha Ram Dewaagan, fhe respondent was Hiade acpused aad was tded. 3. ' In siipport of its-^case,, prosecution 'has e^aiaineA'feur •witnesses ' •iri.cludm.g ttiat of complainan.t.'. VBfa.nu .' Ra.m. Statement of the accused was also recorded under Section 313 Cr.P.C. in which be denied fhe charges leveled agaiiist hioi aud pleaded iiinocence and false impUcation iii fhe case, p ^'''-... \':'"- "^ . • '-^ •l^- ''' . . ..^' J >-:^ •^.M /;i^.:-, 4< Contention of the counsel for the a.ppellai5t/State is th.at cn th.e basis of Biaterial available on record, the Court below ought to have convicted fhe accused/respondeiit 5. Ou tlie ofher haad it Iias been ai'gyed by counsel for fhe respondent/accused that there is absolutely no material v^in'aii.tio.g the ccnviction of fhe accused. He further subiiiits fhat the niRredients of Section 457 IPC have iiot beeu proved by the prosecution as reqiiired under fhe law because fhere is no evideB.ee to the effect that on what date aiid ixi what manner the accused has done the house trespass or house breakm.g m tlie iiigh.t. 6, I have heard counsel for the parties aiid perused the material available on record including tlie judgnient of the Courtbelow. 7. P.W.-l Vishuu Raoi in his statement has stated that fh.e water pump in question was purchased by him for Rs. 2500/- aad on the mterveiiiag night of 24-25.3.2003 the sanie was stolen. He has further not made aay aliegation again.st the accused and has siniply stated fhat when fhe poMce has seized the said punip he had taken fhe sai&e 011 Supurdnaiixa. P.W.-2 Rakesh Kum.ar who is the xneinoraiiduin witness has stated fhat ia his prcsence ftie accused gave his nienioraB.duiEi Ex.P/6 aad based on his nieinorandiiin fhe water puiup was seized from P.W.-3 Derha Ram Dewaiigaa. In his cross exaraination however tliis witaess has stated i that th-e entire seizure proceediag was done ia ftie police 1 station. He has further stated that the accused had sold the j said piinip to him for Rs. 600. He has also stated that no s i.: enquir}r whatsoever has beeu inade from. the accused m. his presence. However fhere appears to be soiae contradictiou in. fhe stateiaent of this witaess, P.W.-4 S.K-Pathak, the Iiivestigating Officer has supported fhe case of fhe prosecution aaad fhe filiag of the challan. ^ 8. From the evidence it is not clear that the respondent was itivolved ia any niaaner iii conxmitfcuig the offence as aUeged agamst hiia, On the basis ofthe inem.orandum ofthe accused/respondeut fhe Tecovery of water piiHip has been ina'' jyo33i P.W.-3 Derha Raxa however, fhe inemoraadiiBi aiid seiziire witoess Rakesh Kumar (P.W.-2) does not fully support the prosecution case aad his statenient becomies doubtful for convictiag the respondent/accused. Furfhermore, the prosecution has failed to estabUsh its case for conviction of the respondent under Section 457 of fhe IPC because the basic iiigredients of fhe said Sectiou are niissiiig ni tlie present case. 9. Thus, after hearmg counsel for the applicaiit/State aiid considering fhe niaterial available on record as weU as tlie elaborate judgmeut irapugned passed by the Court below, and being very imich conscious of fhc existing legal position fhat ixi aii appeal agaiiist acquittal tf two views are possible cn fhe basis of the evidence led by fhe prosecution aad thp tiial Court takiag one view favoured the accused, reversion of tlie fiiidiags of acquittal by the appellate Court takiag the other possible view into consideration is not pe.rmissible in law, fhis Court is of fhe view fhat the judgment ioipugned acquittmg the respondent/accu^ed of fhe offence under Sections 457 & 380 of the Indian Penal Code is just aad proper aod does not waat axiy mterference by fhis Coiirt. Accordingly, the appeal benig withoui substao.ee is hereby disinissed. Sd/- PritinkerDiwaker Judge