Cg HIGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR CREMINAL REVISION N0.134 OF 1996 Laxmikant alias Raju 4T. X r Versus The State of Maqdhya Pradesh (now Chhattisgarh) ORAL ORDER u Per KS. Garg, J :- The applicant being aggievcd by the judgnent dated 18/08/1993 passcd in Criminal Case No.714 of 1991 by the learned Judicial Mag'strate First Class, Bilaspur convicting the applicant under Sections 457 and 380 of the Indian Penal Code and sentencing him to undergo R1. for two years under each count and pay nne of Rs.500/- under each count in default of payment of nne to undergo two months impn'sonment preferred Criminal Appeal No.129 of 1993. The leamed nfth Additional Sessions Judge, Bilaspur by his judgnent dated 30/01/1996 confirmed the 0ndings recorded by the learned trial Court, but however, reduced the jail sentence to three months. Being aggieved by the said judgnent the applicant has come to this Court. (2) The prosecution case in brief was that on 22/06/1991 when complainant Ram Singh and his family members had gone to a diderent village to attend the marriage functions, in the late night when none was present in the house certain miscreants after removing the roof tiles entered in the house and committed theE The report was lodged onthe same day. The applicant and others were arrested, their memorandum were prepared and certain articles were ’x t @ "2-- recoversd. The said articles were put for iden%cation. Armed with evidence and the other documents the police cled the challan. The two courts recorded the mdings against the applicant convicted ahd sentenced him as referred to above. (3) Shii V.P: Shrivastava, learned counsel for the applicant u ,‘ submits that ham the statements of PW—S Maya Shanna it does not appear that i on 05/07f1991 she prepared the memorandum of the applicant or made any s recoveries. horn him on 05/07/1991. According to her EXP/4 and P/5 on which the two Courts have placed strong reliance are dated 05/07/1991. He further submits that the alleged identihcation proceedings relating to the property are bad and illegal because PW-7 Saraswati Bai said before the Court that she did not identify the articles in any proceedings and h‘om the statements of PW—2 Manoj Singh Thakur it would appear that the articles were shown to him in the police station and he had identined the same. He further submits that the Courts below were unjustined in ignoring the salient features in the present case. (4) Shri Praful BharaL learned counsel for the State, on the other hand, submits that the two Courts have recorded correct nndings (5) PW-S Maya Sharma, Sub Inspector who had prepared the memorandums and seized certain articles from the possession of the present applicant had stated in paragraph 2 of her statements that on 12/07/1991 she recorded the memorandum of the accused and seized the articles. She nowhere said that the memorandum was prepared or the articles were recovered on 05/07/1991. The two Courts were unjustihed in recording a unding in favour of the prosecution that the memorandum was prepared and the articles were G . / w s a .. www < hm “at”, iWM r ...3-- rccovered on 05/07/1991. It is further to be seen that in paragraph 5 said Maya Shanna had clearly stated that shc had arrested the accused on 05/07/1991. Present is not a case where under some lapses or loss of memory said Maya Sharma stated that she prepared the memorandum and recovered the articles on 12/07/1991. As nobody says that the memorandum was prepared and the articles V ‘Were recovered on 05/07/1991 the hndings recorded by the two Courts would certainly become bad. From the records it would appear that PW—7 Saraswati Bai md not say in the Court thatra'rgiday prior to her stastements in the Court she had i identihed the articles. Ifthat be so, the signatures of w Saraswati Bai on EXP/1, the identihcation proceeding, would become doubtlul. The identidcation proceedings were conducted by one Ashwani Kumar Pandey. Said Ashwani Kumar Pandey has not been examined by the prosecution. Nobody knows that who was Ashwani Kumar Pandey, what o$ce he held or what profession he belonged to. Ex.P/1 'does not even say that how many articles were mixed in the articles which were put for identihcation. It simply records that certain articles were mixed. Said document Ex.P/1 says that these identihcation proceedings were conducted at a place known as “Talab Par”. On the other hand Manoj Singh Thakur (PW—2) says that the identihcation proceedings were conducted in the police station. He does not say that the proceedings were conducted by Ashwani Kumar Pandey. On the other hand he says that the proceeding were conducted by Netam Saheb. r‘t, (5) proceedings was conducted One witness who appended sigiatures to Ex.P/1 refuses participation in the identidcation proceedings and the other witness g'ves From the records it does not appear that any proper identincation 4L in x x { § Tm w WWLM L4 ‘ u Mm a m --4.- mug a death name to the identmcalion proceedings by chang'ng the place and changing the person who conducted the proceedings g W (7) Taking mto conslderanon the prosecutlolk as 1t 1s I §n unable to hold that that 1t has proved 1ts case beyond shadow of doubk to a reasonable certainty .48) The hndings recorded by the two Courts deserve to and are accordl'ngly set aside. The applicant is acquitted of all the charges. He is on bail, his bail bonds are discharged. The hne amount if any deposited by the applicanty» be returned bach G‘. y