+- ^\ /yf) &' s^ CF0000658636 sm91eBend-'f:rtni, r'^ina^ IN THE HIOH GOURT .OF MDHYA PRAESSB AT JABAL.PQR .i^\ / CRIl^KAL APPEAL N0. Mandipram^ son of CThura Raxo Ravani (Kahar)^ aged 22 years^/ driver^ yesident of Qhurki^ Police: Stet/ion Ghurki, D.istrict Palamu, Bihar^ at present re.sident of fianchl, 'I'ahsil and Eistrict. / Ranchijs Bihar^ ^ .^ VEKSIB • . . , ' " • ;A*" ^ ^ ' The State of Madhya P^idesh' • OF 1993 ...APPELLAK'T ^X^t '3«u «uL\ ,. ,RESPONDENT GRIICNAL_APPEfi.L UNI®SECTION 37li(2) OF THB COBE OF CRIMINAL PRCCB^DURE BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:11 +0530 HIGH COURT OF CHHATriSGARH AT BILA8PUR SB : HON»BLEMR. JUSTICE PmTIHKBR DIWAKBR CR.A.HO. 445/1993 APPLICANT RESPONDBNT versus Mandiprani StateofC.G. Shri Ar^ind Shukla, counsel tbr the appellaiit, Shri Vivek Sharma, P.L. for the State. CRA.UNDBRSECTION3'74i2tQPTHECODEOF CmMINAL PROCEDURE ORDER (09.02.2010) This appeal is directed agaiast the judgnient dated 26.4.1993 passed by tbie First Additional Sessions jiidge, BUaspur ia S.T, No. 210/88 convicting the appeBaat for the offence punishable under Section 395 of fhe IPC and sentencitig him to uiidergo RI for five years aad to pay fine ofRs. 1000, in default of fine, RI ibr tiirce mLonfha, 2. Brief facts of the case are that on 21.4.1988 FIR Ex.P/26 was lodged by one Qulab Chand Kakoti aUeguig in it fhat he is a Constable in fhe CISF' aad on fhe said date ie. on 21.4,1988 wh.eu he was posted at "Magasdne Futka Pahad Townshiff, at about 4.30 p.m. five persons came there aiid tied him up with a towel and locked him iaside the TOOWL, Thereafter he heard soiiie uoise froni the Magazine Room aiid saw t^o persons carryiog tihie wooden boxes ofdetonators on fbeir head aiid fhen fhey raa away, He has also aUeged fhat tliese persons were aged about 27- 28 years however he untied himsetf, broke tlie door aad x'eported the niatter to fhe Post Cominander A.SJ. of the KfagayAne Futka Pahad Towrzshiff, When the detonators .-r^^ .- •'< / <^-.- I, -^- were checked it was found that as raaiiy as 3,000 electrical detonators aiid about 26,347 ofher types of Super plaae ordinary lype detonators were missmg. Based on tibd^ FIR the iavestigation was done by fhe poUce aod charge sheet was filed agaiast fhe present appeUant and seven other accused persons. In fhe chaqge sheet fhree accused persons nainely Ashok Jaia, Viaay Raai and Bhola Rani were shown to be abscondiag whereas fhe appeUant aad other tCTir accused persons were tded by fhe Court below for fhe offence punishable under Section 395/ 109 of the IPC aiid Sections 3/25 8& 27 offhe Arms Act. 3. In support of its case, the proseciition has examuied as many as 25 witaesses, Statement ofthe accused was also recorded under Section 313 Cr.P.C. ia which he denied the charge levelled agaiast him aad pleaded his inuocence. 4. After hearing counsel for fhe parties, fhe trial Court has convicted aad sentenced all the accused persons uicluding fhe appeUant for fhe oflfences under Section 395 IPC aad iii addition to this the co-accused Kaiiash Rami was also convicted for the offence under Sections 25 & 27 offhe Anns Act, Hence fhis appeal. 5. It has been argued by the counsel on behalf of the appeUant fhat but for the appeflaiit fhe ofher accused persons have already seryed fhe entire sentence aiid have been set iree. He subinits fhat fhe appetlant has also remained in jail for about 9 monfhs aad is faciag fhe case for last 21 years, He subiaits that ttiere is no dircct or iadircct evidence on record to show that the appellaat has corauiitted dacoitee at fhe Magazine Futka Pahad Township. He also submits fhat no incrimmating article has been seized from tlie appeUant aad tfae lodger of the FIR Gulabchaad Kakoti who had seen all tiie accused persons ; has not been examined by the prosecution. He further submits that fhe only piece ofevidence against fhe appeUaiit is fhat he was fhe driver of fhe jeep which was allegedly f % --2>- used in. tlxe coinixiission of flie offence. He subniits fhat the appeUant is alleged to have been seen at Village Ghogra Thana Katghora whereas fhe place of the incident is far away Jfroni fhe said place and th.ere is no evidence on s^cord to show fhat fhe appellaat has conspu^d in any inaniier wifh fhe co-accused persons for fhe coniiDission of dac^itee and even fhere is no evideace that the appeUaat was having aay knowledge fhat fhe vehicle which was driven by him would be used for coimnissiou of any offence. 6. On fhe other hand, supportmg fhe judgmeBt impugned it has been argued by Shii Vivek Shanna, counsel for ftie State fhat the appellant has been identified bv P.W.-5 Surit Ram aad ftiis witaess had seen him at vfflage Goghra. He further submits fhat P.W.-l H.S.Rahil, Civil Engineer of Bharat Aliimiaiuxn Conipany has categoricaUy given fhe registration nusxiber of fhe vehicle which was used ia the coinmission of the oifence and the said vebicle was ultioiately seized froin the possession of fhe appeUaat. It has been further argiied fhat even if tbere is no direct evidence agamst the appeUaat but his px^sence at vUlage Ghoghra connects him wifh tlie comjnission of fhe offence of dacoitee and therefore his conviction is in accordance witihi law. 7, I have heard counsel for the parties aad perused the material avaMable on record mcludmg the judgmeBt iinpugned, 8. As per tbe evidence avadlable on record, the appellant was the driver ofone Praveen Dutt Choubey (P.W.-7) and he used to drive his jeep beariug registxation No, UPJ 877. P.W.-7 Praveen Dutt Choubey has stated fhat in the month of April 1988 fbe appeUant who was his driver came to him aiid had asked hini that family of Ashok Jam waiits to go to Maiher and therefore ftie jeep be given to him for 3-4 days. He farther alleges fhat fhe jeep was given to fhe appeliant at fhe rate ofRs, 300 per day and the advaace aoiount ofRs. .s^ •^. ^1 -M 600 was given to him. However the accused/appellaiit caBie back wifh fhe jeep after six days aad after two days the rexnammg ainoiint of Rs, 600 was given to him., Further it has been alleged by tlie prosecution that the jeep in question was talcen by tlie appeUant and fhen in fhe said jeep aU fhe accused persons came to Korba aad fhen the offence of dacoittee has been coxnButted. It is relevant to note that fhere is no evidence on rccord to show that ftie accused/appeBaiit took fhe ofher accused persons in. his jeep aiid there was aoy plaii to conunit fhe offence or even the appeUaut was aware that the oftier accused persons are going to cominit sonie offence. 9. P.W.-l H.S. Ralul tlie chance witaess has stated that he is working as Civil Engineer isi the Bbarat Ahiisiiniiim Compaay and m fhe mon.fti of April 1988 he had gone to perform sorae official duty near the Magctzine Fi^tka Pahad and there he saw 5-6 persons near the rivulet He fiirther states fhat he inade soine query froin one of the accused nainely Devwaat Ram aad he also saw fhe blue colour jeep bearmg registration No. UPJ 877. P.W.-2 Kamalkaat Tiwad has stated that the appeUaiit xised to drive fhe vehicle of Praveen Dutt Choubey aad the said vehicle was taken by the accused/appeUant by saymg fhat he is witliag to go to Maiher with one Narayan Prasad (P,W.-3), anofher chance witaess who was fhe employee of the Bharat Aluixuniuni Company had stated that except the accused/appellaat, he saw the other foiir accused persons. He farther states that ia the test identiScation parade Ex.P/1 he had identified four accused persons namely Kailash Ram, Devwant Ram, Pawesh Rasii and Rainnafh, It appears tbat fhe identification parade of the four accused persons was condiicted on 27.4,1988 and tiU fhen fhe appellaat was not arrcsted aiid fherefore he was not put for identification, 10. P.W.-4 Krishnaaaad Ojha, fhe mines maaager has given fhe detaUs of tlie stock of Magazines aad detonators* P,W.-5 Siuit Rain saw the accused/appeUant at village Ghogra and has idcntified him in fhe test identification parade Ex.P/4, conducted on 26.5.1988. This witaess however states that he saw tlie vehicle in question in Iiis village as fhere was soiae problein ia fhe vehicle aad fhe appeUmit was the driver of fhe same* He has not made aay aUegation agaiast tiie appeUant nor he saw fhe appellaat wiftx ftie ofh.er accused persoas. 11. Dr. K.L. Patel (P.W.-6) who had examined Giilab Chand Kakotia has given ftie details of the mjuries sustained by him, Praveen Dutt Choubey (P.W.-7) is the owner of fhe vehicle, has stated that the vehicle ia qiiestion was taken t>y the appeUant on hire. Ghanshyaiii Mishra (P.W.-8) & Jaiauna Prasad (P.W.-9) are the witaesses ofthe seizure of the articles Ex.P/7, Ex,P/8 (seizurc ineino) & inexnoranduni P/9 (Cash niexno of Biinty Electronics), Arjunlal (P.W.-10) & Bhartendu (P.W.-ll) are seizure witnesses ofthe jeep bearing registratiou No. UPJ 877 which was driven by fhe accused/appellaat and the said seizure is Ex.P/ 13. 12. Jhaminan. (P.W.-12) who is fhe witaess of identification Ex.P/14 states ffa.at fhe accused/appellant was identi&ed by Surit Ram (P.W,-5). Jayant Kumar Singh (P.W.13) is the seizure witaess ofEx.P/15 (seizure 3iieino of the detonators). Ramashankar Siagh (P.W.-14) who was fhe enxployee of Excise Departoient had giveu the details of entries in fhe register. Dharaiaveer Shaniia (RW.-15), Naib Tahsildar conducted fhe Test Identification Parade vide Ex.P/I, P/14 and P/ 19. Basant Rao (P.W.-16) is the Patwari who has prepared fhe spot niap offhe incident. Noordas Sao (P.W.-17) was fhe store keeper D.S.Thakur (P.W.-18) is the S.I. Prcmchand (P.W.-19) is fhe employee of CISF, S.N.Shukla (P.W.-20) is the Sub Inspector. Deea.bandhu (P.W.-21) is fhe seizure witness of Ex.P/16,17,18,19, (seizure memo of detonators) Ex.P/22 (sei^ire memo ofone shirt & torch) & Ex,P/23 (seizure niexno offhe detonators). Narottani Prasad Sahu (P.W.-22) is the Constable, Bodhram (P.W.-23) is fhe witness of Ex.P/ 18 (seizure inexno of tlie detonators) & P/25 (seizure nienio of wrist watch)^ S.K-Vishwas (P.W.-24) is the S.I. of CISF & S.C.Raikwar (P.W.-2S) is fhe Investigatmg Officer. 13. FTOWL fhe entire evidencey it is clear fhat none of the witnesses has stated that fhe accused/appeUant took part in the coinmissioi}, of fhe dacoitee. The only aUegation against fhe appeUant is fhat he hired fhe vehicle of Praveen Dutt Choubey (P-.W,-7) and the said vehicle was seen m the vicmity where tlie olffence of dacoitee has beeii comnutted, There is no ofher direct or indirect evidence against fhe appeUant on which basis it caa be said fhat he was iavolved in. fhe conmiission of fhe offence of dacoitee. The rccovery of fhe vehicle froia fhe possession of fhe appeUant beconies inisigni&caat because adinittedly fhe appeUant was the driver of fhe said vehicle and he took fhe same froni the owner. There is no evidence on record to show fhiat the appeUaat had ever conspired with the ofher accused persons for coninuttmg the dacoitee or even was aware fhat tiie ofher accused persons are going to coimnit soine offence. The evidence against the appellant/ acciised is very weak aad is Imiited to tiie extent fhat he took tlxe vebicle froin its owner aad frora no where fhe appeUaat could be connected wifh fhe offence of dacoifee, Thus, fhe appeMaat is entitled for benefit ofdoubt 14, In view of the facts and features depicted above being seen ia fhe Ught of the evidence adduced by fhe prosecution, fhis Court is of fhe opiaion ftiat fhe Court below has not given a fhoughtfiil consideration to the inaterial available on rccord in its proper perspective and thus has fallen in a legal error m convictmg the accused/appellaiit as described above and fherefore fhe same is Uable to be set aside. Accordiagly, the appeal is allowed, impugned judgraent dated 26.4.1993 is hercby set aside. The appeUaat is on bail, his ball bonds are cao^ceUed and the surety staads discharged. Sd/- Pritinker Diwaker Judge