PAGENO.. IN_THE HONOURABLE HIGH COURT OF CHHATTISGARH AT BILASPUR. APPELIANTS ACCUSED (IN JAIL) ^••^^ ..v" ei»~ ^ •?•• ^>1 ...<'^\/ •iA?'" \ • .•-' ^••^ CRIMINAI;_APP5AL_NO^'2P__/20&1.. 1. shushil S/o shiv Prasad aged about 22 years. : 2, Ishwar S/o Balfia, aged about, 25 years. u ^- 3. Ram sunder s/o shiv Lal, aged sbout 25 years, all R/o-village Dudhaniya, P.S. Pataa Distt. Korea (C.G.) ^. 'T^) shiv Latr S/o Pakkaram, aged about 23 years, Kerabahara, Indarpur P.S. Khandganwa, District- Korea (chhattlsgarh). VERSUS RESPONDENT s The state of chhattisgarh, Through; p.S. Bakunthpur, Distt. Korea (G.G») CRIMINAL APPBftL UNpER SECTION_'374 QF_THE_ CODE^ OF CRIMINAI. PRODECURE. •'.^ ^v HI6H COURT OF CHHATTIS6ARH ^T BIL/^SPUR Singie Bench : Honble Mr. Justice Pritinker Diwaker Criminai ApDeal No. 888 of 2001 Shushil and others RESPON&ENT State of Chhattisgarh Shri R.N. Jha, counsel for the appeliants. Smt. Smita Ghai, Panel Lawyer for the State. CRmiHAL APPEAL UN&ER SECTION 374 (2) QF THi CRIAUN4LPRGCEDURE (15.02.2011) This appeal is directed against the impugned jydgment i and order dated 06.09.20Q1 pgssed by 1 Additional Sesfeions Judge/ Bdinkunthpyr; i5istt. Korec in Sessions Triat No. 214/2001 convicting tHe •accused/dppeilants under^Sectioh 395 1 of the Indian Penal Code and sentencing each of therfi to undergo rigorous imprisonment for five years. 2. Case of the pr'oseeution, in brief, is that on 23.02.2001 at about 9.30 a.m. F.I.R. (Ex.P-l)was lodged by the complaifiant ; Hariram (PW-1) Glieging that on thot day at about 2.30 ja.m. I when he woke up in the night/he sav^some persons stand^g in front of his house. On seeing this, hewent inside his'hjouse, bolted the door from inside went on the terrace and criecllfor 1 ':'! heip. After hearing his cries his neighbour Shivshanker fcame to his house and then the accused persons standing til'Kre assaulted Shivshanker and, thereafter, they broke epert the door entered his house and looted wotch. gp(d ehain ,sifj>?er chain and some other goid and silver ornaments. F.I.R.iwas regjs^ed against the unknown persons for the offencesunder :' ''^:1 -!. i. i i sfis-.s.irtSSV: ».i^3S3%^^ \^ •'./ .ss^ ^^'^R !sssy "!^ ,a?^' Sections 458 and 382 of the Indian Penal Code. Further case of the prosecution is that on 25.2.2001 nine accused persons wie.re arrested, their memoranda vide Ex.P-5, P-7 to P-20 were recorded and certain crticles were seized and some robbed articies were also seized on 25.2.2001 vide Exs.P-6, P-14, P-15, P-16, P-17, P-18, P-19 and P-20. After completion of investigation challan wos fiied on 21.5.2001 against nine accused persons for committing the offence under Sections 395 and 396 of the Indian Penal Code. 3. So as to hold the accused persons guilty, prosecution has examined 12 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the 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 Couri- has acquitted the accused persons namely Budhram, Nwidu, Dhararolal, Chhotu and Jagjeet whereag convicted ond sentenced the accused/appeliants namely Sushii, Ishwar, Ram Sunder and Shiv Lal under Section 395 of the Indian Penal Code. Hence this appeal. 5. As the appellant No. 4 Shiv Lal has already undergone the entire sentence, his appeal has already been withdrawn on 23.10.2009. 6. CQunsel for the accused/appellants submits that no Test Identification Parade in respsct of the identification o.f the ;accused persons was conductsd and as the F.I.R. was lodged dgainst the unknown persons, there is no evidenee pn record to suggest thS it is the accused/appellants who hws committed .i.TS':; \ :d^" »-d* the offence. He submits that the memoranda witnesses namely Monohar Ram (PW-5) and Devdas (PW-6) have not supported the prosecution cose and have been declared hostile and these two witnesses are aiso the seizurewitnesses and jn respect of the seizure also they have not support'ed the prosecution case and have been declcred hostile. According to him, accused/appeliants have been convicted mereiy on the basis of identification of the articles and on the basis of thissole evidence, they cannot be convicted. He further submits that when on the basis of sameset of evidence five accused persons have already been acquitted by the.court beiow, urider no circumstances the accused/appeliants can be convicted under Section 395 of the Indian Penai Code. 7. On the other hand. supporting the impugned judgmen+ it has been argued by the State counsei thaf the impugned judgment is strictly in accordance with law and there is no infirmity in the same. 8. I have heard counsel for the parties and perused the mcri'erial availdsleon record including judgment impugned. 9. Hariram (PW-1) - complainant has stated in hisevidence that he knows the accused/appeilant bharmpal who is presentl in the Court but he does not know the remaining accused| persons. We has stated thaton the date of incident when h< was sieeping in his house along with his famiiy members/after hearing the sound of barking of dog when he came out fr-om hi^ house, he saw one person near his house who had covejred hi^ face and when heenquired from him as to why he had com^ There, hewas informed byhim thcct he hcd cometHere]to hea^ the music. He has further stated that about 15 other;|3ersQ^s ^\ .Aslf were also stoinding there and after seeing him, they starf'ed throwing stone on him, he went inside his house and cried for help and upon hearing his scpeams, his neighbour Shivshankor Bairagi came there and in the meanwhile accused persons. broke open his door and the complaincy.t ieft his house to call his neighbour. He has further stated that the accused persons had taken various qo!d and siiver ornaments from his house amounting to Rs.60-70 thousand. He has further stated that when his neighbour Shivshanker came to his help, he wgs assaulted by alt the accused persons. Shivshanker (PW-2) has stated in his evidence that on the date of ihcident in the night hours when he came out N ease himself,| he heard fhe ser'eams bf complainant Hariram and his family members fpr help and when he reached t6 the house of the complainant, about 8-10 persons were there artd they have assaulted him with the help of bricks, as d result of which he sustained number of injuries. Thereafter, he Was medically examined ond had sustained fracture on his !eg. | Moharsai (PW-3)—nsighbour of the comptainant Hariram has not supported the prosecution case and h.as been declgrpd hostile. S.R. Sidar (PW-4) - Naib Tahsildar in whose pres^nce l:i roped artictes were identified by the cQmplainant. MaricjHar Ram (PW-5) -vi 11096 kotwar is a witness of memoranda l/ic Ex.P-5,Ex.P-7 to Ex.P-13 likewise he is one of the witnessjof i i seizure Ex.P-6, P-14 to P-20 has not'supported the prosecu|t-ion case and has been declared hostile. Devdds (PW-6) - ano'IHer important witness to the memorandum and seizure has alsol raot support'ed the prosecution case and has been declared host l^. '..&' ! i !: i -t-r- J^ s\. Seetadevi (PW-7) - wife of the complainant has mads almost similar statement as has been made by her husband. Krishna (PW-8) - son of the complainant Hariram while supporting the statement of his father has a!so stated that he had identified cert-ain arf'icies vide Ex. P-3. Shivmohan Dhusiya (PW-9) - Patwari had prepared the spot map (Ex.P-1). Dr. Ashish Karan (PW-12) who had medically examined the neighbour of the compiainant namely Shivshanker (PW-2) and has found as many as five injuries on his person. 10. Minute examination of the evidence of the witnesses makes it very cleor certain articles have been identified by Hariram (PW-1), Seetadevi (PW-7) and Krishna (PW-8) vjde Exs.P-2, P-3 and P-4 but the seizure witnesses Manohap Ratn (PW-5) and Devdas (PW-6) have not supported the prosecuticin case and have been deciared hostile. . 1 Admittedly, Test Identification Parade has not beeSn conducted by the prosecution and there is absoluteiy |np evidence on record to show that it is the accused/appellants who were present on the spot and havecommitted the offencA. Moreover, in the court the complainant had identified oniy thte accused Dharom Lal but the said Dharam Lal has aiready been acquitted by the courtbelow. 1 11. Considering the evidence of the witnesses part-icuiar'iy the com plaincmt i-1ariram (PW-1) and the entire materkit availdbte on record, this court is of the considsred view that the prosecution has failed to prove its case beyoricl al! the reasonable doubts and in these circumstances the benefit ofi doubtmyst go totheaccused/appellants. i 12. In conclusion the appeal isallowed. Impugned judgmentl dated 06.09.2001 is hereby set aside. Appellants are acquitted of the charge ievelled against them. Since appellants ore already on bail, their bait bonds stand discharged^ Sd/- pritinker Diwaker Judge ^w- [ 1 i s -.2^.'