CF00000531 55 ' m m5: aim-I aware w Jumczzmm M» Bmspumeamwnsw riminal Appm No. L1) at 29w kim ‘C/L ,, / g , ‘Eh‘ Stats 0£ amattisgarh ‘ ‘ o' [h the matrict Magistrate ‘ ' ’ sarguja (amattisgarh) ’rf w ~ k 7,,” .. v c 2 . §‘ma‘de by the accused/appellant to assault said Shailendra Sing’h with jthe' help :of country made pistol. On that very day FIR Ex. P-9 was iregistgred against the accused persons under sections 307/34 IPC and {25/27 of; the 'Arms Act. After investigation challan was filed on 331.12.1991 for the said offences. 33. So as to hold the aCcused persons guilty, prosecution has examined .as many as 1 1 witnesses in support of its case. Statements HIGH COURT OF CHHATTISGARH A‘T BILASPUR (Hon. Mr. Justice Pritin’ker Diwaker) % a ’ Shri B.D. Guru coun‘sel for the appellant. : Smt. Smitha Ghai PL for the respondent/State. l RIMINAL - x t APAL UNDER‘SEc‘Tm . 374 2 QFVTHECODE x CRIMINAL PROCEDuRE. ‘t- A JUDGMENT (18.01.2011) $ “this appeal is directed against the judgment and order dated 7 20.11.2i‘000 passed by the Additional Sessions Judge, Ambika‘p‘ur (Sargujia) in Sessions Trial No. 61/1998 convicting the appellant under Sectioni 25 (1-B) (a) of the Arms Act and s‘entencing'him to undergo rigorous imprisonment for two years and pay fine of Rs. 200, in default of payment of fine to further.undergo' rigorous imprisonment for three months. V 2. Case of the prosecution in brief is that on 17.3.1991 Dehati Nalis‘i f i Ex. P-12 was recorded by the police at the instance of Om Prakash i Shrlvastava (not examined) in which it was alleged that on that day accused/appellant herein and two other persons came there on a I \ motorcycle and some altercation took place between them and the 7 victim Shailendra Singh. Thereafter, it is alleged that an attempt was I R. C PE N OF . - AP'PgLLANT of 2000 Rajesh Pathak \[ . VERSUS ._1_. of the accused persons were also recorded under section 313 of the x, g Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court acquitted accused Neeraj aliasEGudda of all the charges levelled against him. Accused/appellant herein has also been acquitted of the charge under section 307 IPC but he has been convicted and sentenced as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Cgunsel for the accused/appellant submits that injured witnesses Shailendra Singh and Virendra Singh (PW-4 and PW—3 respectively) themselves have not supported the case of the prosecution and have been declared hostile. He submits that out of two seizure witnesses to country made pistol vide Ex. P—6, one namely Om Prakash Shrivastava has not been examined by the prosecution whereas the other one namely Suresh (PW-7) has not supported the case of the prosecutio and has been declared hostile. He submits that in the absence of any evidence against the accused/appellant regarding his involvement in the crime in question, he cannot be convicted for the same. In additio to this, counsel for the accused/appellant submits that no report of the ballistic expert showing the nature of the weapon seized has been brought on record and therefore also the accused/appellant herein deserves to be acquitted. In support of his argument, counsel for the accused/appellant placed reliance on the decisions of the Supreme Court in the matter of Sunder v. State (NCT of Delhi) 2002 (6) SCC . 593 and in the matter of Sumersinbh Umedsinh Rajput alias Sumersinh v. State of Gujrat 2007 (13) SCC 83. c? On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the lnvestigating Officer has duly supported the case of the prosecution, the findings recorded by n n ._g~_‘ the Court below convicting and sentencing the accused/appeant are just ajnd proper and need no interference from this Court. 8. t Shailendra Singh (PW-4) and Virendra Singh (PW-3) who wer allegedly assaulted by the accused persons have not supported the case-of the prosecution and have been declared hostile. Sukhiram (PW-é) is the witnessto seizure of motorcycle made under Ex. P—2. Buddhiman (PW-5) — the witness to seizure of motorcycle made under Ex. P—2 has not supported the case of the prosecution and has been declared, hostile. M.P. Yadav (PW-6) is the witness to grant of sanction for prosecuting the accused/appellant. Suresh (PW-7) is the witness to seizure of country made pistol made under Ex. P46 has not supported the case£of the prosecution and has been declared hostile. Assistant Sub Inspector Chaman Ram (PW-8) is the witness who had examined the weapon seized and given his report Ex. P-8. S.S. Sharm‘a (PW-9) who at the relevant time was Assistant Sub Inspector and had done part of the investigation. Head Constable Pancham Prasad Pandey (PW-10) is the witness who had also done part of the investigation in the case. Sub inspector Kripa Shankar Dwivedi (PW—11) is the investigating officer and he has supported the case of the prosecution. 9. Minute examination of the material available on record thus goes to show that almost all the prosecution witnesses except the I investigating officer have not supported the case of the prosecution and they have been declared hostile. Moreover, out of tWo witnesses l to the seizure of weapon allegedly used in the commission of the offence, one Om Prakash Shrlvastava has been given up by the prosecution and the other one namely Suresh (PW-7) though has been ' examined, has not supported the case of the prosecution and has been declared hostile. This apart, no ballistic report has been obtained by the prosecution showing whether the weapon so seized was in working condition or not. The prosecution has thus utterly failed to establish its case beyond ail reasonable doubts and that being so the appellant has to have the benefit of doubt. n e a q# 10. ln view of what has been discussed above. and also keeping i mind ithe aforesaid Iegal position, this Court is of the considered opinion that while passing the judgment impugned the trial Court has ' committed a grave error in over-looking the aforesaid lacunae on the part of the prosecution which certainly needs disiodgement in this appeal. Accordingly, the appeal is allowed. Judgment impugned is hereb§I set aside. Appellant stands acquitted of the charge leveled against him. He is already on bail‘and that being so his bail bonds stand idischarged. 'ie "‘ ., L ‘ Sdl- ’ Pritinker Diwaker \ Judge @ n