^:^^^^^^^^^^^ €<, e .s-^^^ m THE AT ^~. ^. ^(.cfe lo \ ApPUCANT APPELLANT The of Chhattlsgarh 1. Vijay Kumar Kesharwani aged about 33 years, S/o Tokhan La! Kesharwani, R/o Shivrinarayan, Arakshi Kendra, Shivrinarayan 2. Shiv Kumar Kesha^/ani about 34 years, S/o Tokhan Lal Keshawani, R/o Shivrinarayan, Arakshi Kendra, Shivrinarayan 3, Krishna Kumar about 34 years S/o Tokhan Lal Kesharvvanl, R/o Shivrinarayan, Arakshi Kendra, Shivrinarayan • FOR OF TO ^r-Ti HI©HCOURT OF CHHATHS^ARH AT BIL^SPUR Si'r^le Bench ; Hon'bSe Mr. Justice- Pritinker Diwaker Cn'minaJ Aroeal No. 668 of 2001 APPELLANT RESPONDENTS Th®State of Madhyo Prade.sh Versus Vijay Kumcir Keshorwani d other's. Shrj Pravin Doe, Dy. 6ovt. Advocate for the State Smt. Meera Jaiswal, counsei for the respondents. CRIMIN^L APPEAL UNDEft SECTIN 378 (1) OF THE CODE OF CRIMIN^L PROCEDURE. O R DE R (01.04.2010) The present appeal is directed against the impugned Judgment dated 17.1.2001 passed by Judlcia! AAagJstrate, First Class, Janjgir in Crimina! Case No. 184/1998 acquitting the respondents/accused for the oileged offences punishabte under Sections 325/34 and 323 of the Indicin Pena! Code. 2. Brief facts of the case ore. that on 2.11.1996 ot about 6.20 pm FJ.R. (Ex.P-2) was jodged by Kanhaiya Ld (PW-1) osljeging in it that on th©same at obout 2.30 pm whe.n he and his father Latelram (PW-2) were collecting market tax from various shop keepers in the vegetabie market, there wos some djspute between them and os the occused persons have refused to pcy mcrket tax, it is aileged that a!l th©three accused persons have inltlojjy assaulted them by hand ond fist and thereorfter littie flnger of hjs father Lateiram (PW-2) was twisted by accused Vijay Kumor Kesharwani, when he Interyened. It Is a!!eged that Qccused/appel!ant Krishna aiso goye him the biow with the help of nutcracker. ""> 3. In support of its case, the prosecution has examined <xs many as 8 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of CrJmino.! Procedure in which they denied the charges levelled o-gQJnst them and pleaded Innocence and false implication in the ccise. 4. By the judgment impu9n©dthe court b@fow has acquitted the respondents for the aljeged offences pjnishable under Sections 325/34 ond 323 of the Indjan Pend Code. 5. Counsei for the StQte/appellant submits that the impugned judgment of acquittol is not in accordance with low and the eyidence has not been rightly appre^iated by the court- bejow. He submit;s that merely on the basis of discrepancies in the stotement of the witnesses in respect of time of incident, accused persons cannot be acquitted especially when the medical repori- of the victjm clearjy supporl-s the prosecution case. He furl-her submits that perverse finding has been given by the court below while acquittin9 the accused persons. 6. On the other hoind counset for the respondents supporl-s the judgment impu9ned. 7. I have heord counsel for the parties ond perused the materia! QyallGibJe on record. , 8. KanhoJydaS (PW-1) In his court- statement has stated that the incident had taken pjace in between 8.00 om to 8.30 am on account of cojlection of market fee, however, in po.ragro.ph 7 h©agdn stotes that the incident might have taken place at about 9.15 am in the morning. Lalan (PW-2) in his court fitatemesnt has stoted that inc:id^nt hod tok^n ple^^ in betw^^n 1 ^g 10-11 am. Chhedild (PW-3), who is one of the ey@ witnesses, has stated that incident had taken place in between 9 am -10 am. So.J9u (PW-4) -another eye wltness of the incident, hos not supporl'ed the prosecution cose, Dr. M.L. Sahu (PW-5), who had examined Lat-elram (PW-2) and has submitted his medical report" Ex.P-1 has stated that he had suspected fracture on metQcarpo phefingen jomt and, therefore, advised him for X —ray,He also found scratch injuries on his nose ond the potient was compidning pain on his right h.and and he too was advised for X-ray vide Ex.P-3. X-roy was conducted by Dr. S. Chotterjee (PW-7) who hos found fracture in the left jlttje finger of Latelram and hls report- vlde (Ex.P-4), however, has not found any fracture on the person of Kanhaiyala} ond his report- is Ex.P-6. As per F.I.R. incident is soid to hav% taken place at about 2.30 pm whereas Rojnamcha Scnha (6x.P-2C) was recorded at 8.40 pm ond as per the statement of the witnesses namejy Kanhaiyalal (PW-1) & Latel (PW-2), incident had taken place sometime in the morning on 2.11.1996. Consjdering d! the evidence, the ®ntir@ prosecution case becomes doubtful, furt'hermor®as per the statement of Latel (PW-2), it is he who lodge the report whereas F.I.R. has been iodged by Kanhoiyalaj. Thus, hear again the entire prosecution case becomes doubtful. 9. After due appreciation of the evidence availabie on record, the Courl' below had arriyed to a conclusion that the prosecution has not been obje to prove its co.se. beyond olj reasonable doubts, the respondents are entitled for acqujttal. 10. After hearing counse! for the po.rl'Jes and going through the evidence availabj®on record and being very much conscipus of the exjstjno leagj posjtjon thQt In d €0^agoJrtst Qcqu.itto.l if 4 '\ fi ^'-<:' ,:^' two views are possible on the basis of the @vidence jed by the prosecutjon and the tria! Court' 'tokmQ one view fovourable to the accused, reversjon of the findings of ocquittal by the appejjote Court- taking the other possible ylew into considerotion, is not permissible 'm law, this Court" is of the view that the judgment impugned acquitl-jng the respondents / accused of the offences punishable under Sections 325/34 and 323 of the Indion Penal Code , is just and proper and does not call for any interference by this Court'. tl. For the reasons oiforementioned, there is no merit in the present case and the same is dismissed &ccordin9J^_ Sd/- Pritinker Diwaker Judge D/-