‘%w"’\\m\\\\\|i\\\\oi ; ’ CFOOO giggngnuy‘ Sing‘e 3ench ( CrimimW (V m‘w af 3a £8 23% €53 gm’ri g a r wam—afc? . am% %%T=f$ / Wmh avaHT a€x®a a?magic? maT—Imtgw gnogog ~ ?a *6 ax 3f; éamhf WET—w-ratgt , no go mm! mzT: wwr ‘ E gaiaT”r .— /, fgELgwLg g5 @315 ‘.. ’i Q \_&__ y ’ / / Q@ § W @ HIGH COURT OF CHHATTI§GARH AT BILASPUR (Hon. Mr! Justice Pritinker I3iwaker) Criminai Appea: No. §54 0f 19% > APP£LLANT Aarif Khan VERSUS RESPONDENT State of Madhya Pradesh Smt. Kiran Jain, counsel for the appenant. Shri Vivek Sharma, PL for the State. CRIMINAL APPEAL UNDER $ECTION 374 (2) OF TH§ CGDE 3F CRIMINAL PRGCEDUR'g" JIJDGMENT (25.04.2611) The present appeal arises out of the judgment and order dated 13.011993 passed by Additional} Siessions Judge, Baladai District - Raipur in Sessions Trial No. 207 of 1Q87 convicting the accusedjappeiiant under Siection 30? of IPC and sentencing him to undergo rigorous imprisonment for three years, 2. Brief facts of the case are that on 05.03.1987 when the complainant Nisamani Munna (PW-5) was reading news paper in front of a cycie shop, someone threw chiiiy powder in his eyes and thereafter assaulteci on his head by a hockey stick. On the same day FER Ex. P-11 was lodged by the compieinant against the appeiiant and others. Aiiegation .againet the appeilant is that someone had shouted from the crowd that it is the appeiiant who is running away and catch him After completion of investigation, Chalian was filed on 25 06 1987 for the offence under $ection 307 read with Section 34 of IPC against the aooeilant and five other accused persons namely Sohanlal Laxmikant Pandey, ?annalal Siteram Chouhan and g $heikh Ismial‘ r2” ‘3. So as to hold the accused’persons guilty! prasecution has examined 09 witnesses in suppnrt of its case. Statements of the accused persons were aiso recorded under section L313 of the Code of Crimina: Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. ii y 4. Afterhearing the parties the trial Court has acquitted ‘ the 'co—accused Laxrnikant Pendey, Pannalel and, $itaram' Chouhan of the charge levelied against themput convicted and sentenced the present appellant Luis 307, Sohanlal u/s ’ 307/34 and Shaikh Ismial ujs 12GB of IPC, hence, the present ' appeaL 5. Heard counsel for the parties and perused the material i available on record including the judgment impugned. , i 6. Contention of Smt. Jain, learned counsei . for the appellant is that the appeal preferred by the co—accused Sohanlal and Shaikh Ismial has already been allowed by this Court‘vide judgment dated 02.08. 2007 in Criminal Appeal No.682 of 1993. She Submits that the case of the appellant is almost identical to that of these persons who have already been acquitted by this Court. l \ 7. On the other hand supporting the impugned judgment it A ll has been argued by the learned $tate counsel/that the impugned judgment is strictly in accordance with law and there is no infirmity in the same. 8. The main evidence against the ‘appeilant is the statement of the complainant Nishamani Munna (PW-S) and in his evidence he has stated that on the date of incident when he was reading the news paper along with So‘hanial near a bicycle shop of one Jitendra, someone threw chilly s ' g a ,3— powder in his eyes and assaulted an his he by a hockey stick. He has sttéh that number of perons gathered ther and they said that i was Aarif Khan p'f Basna who ad assaulted the compiainant. ha stated tha as the crowd was shting that it was the appellant who d thrcwn chy powder in his eyes‘and assaulted on his head by a hockey stick, he believs at it was the appellant who had done the said act. He as further stated that i the hospital when he regaine his consciousness, h was l informed by certain persons that it was the pellant who had assaulted him, Dr. B. Chourasiya (PW— who had medicly xamined the Complainant (PW-5 and given his report Ex P has f ' found five injuries his body. Mohitram W-2) has nt ‘made any specifi aegation against the appellant. Ram umar, (PW—3 tendra Kumar (PW-6) and Rudra Prat PW-7) who are the eye witnesses, ve t supported the prsecutio case and turned ostile. ithles um (PW-4) has not stated anything against the appellant and after seng th appellant has catoricay stated that he do not know him. Biranche Dehri (PW—8), the. Investiging Officer has supprted the prosecution case. Pramod (shown as PW- 8) has not supported the prosecution case and turned hostile. Mithhulal (PW-9) is a seizure witness has also not supported — the prosecution case. '1 ‘ I. I 9. Minute examination ofthe evidence makes it clear that ‘ none of the witness has deposed anything against the appellant. The record further reveals that the complainant had not seen the appellant throwing chilly powder in his eyes nor assaulting him on his head. He has merely stated that after chilly powder was thrown in his eyes he heard shout from the crowd that the appellant was running away and he be caught hold. The other witnesses, in particuiar the eye ‘ s ad a s e t h He s t ou ha iil e th h n d e ap 1) al e ) . -2 on (P o ‘ c ll r -K ). Ji ap k ( ha no on h Mh Kar ei e he egll es at o @ “\Jv witness, have not supported the prosecution case. Even if the entire case is taken as it is the appeiiant cannot be convicted under section 307 of IPC. 10. In the resutt, the appeai is allowed. Impugned judgment and order dated 13.07.1993 convicting the appenant under Section 307 of IPC is hereby set aside. Appeiiant .is‘acquitted of the charge ieveiied against him. He is ‘ on bail. His bail bonds stand discharged. Diwaker i Priflnker Judge ’ K“ 7/ /<< i ‘ .