^^a&^iisa <c^ ^, ^&ct(c?r ^ .tM89/(Jail) .„ C.J.P.R. 11/94/2,000 'C'F'0000058435 e-6: APPEAL OF PRISONER No.........^.^^...-..................... Name ...^^^^..^..^^.^............... Father-s name c^,.^.^.^^^...^.^^.. ^^..-^^.................. Residence .^^^.^^.^.;^.......Ag^..^^^.J^.............-. ^—.-••-.- Sentencedto ^.^^ ^^^^.^^ On......V^;^.\^^,,. ....^" ......... Under section .^^^^A.^^.,..... by^^^.^n.p^^..^,^^.—c.l' /" • • • '. • . • It is explained to the prisoner that if he states-'or wishes to be represented-by legal practitioner the Appellate Court will not.procecd wTnTthe base for seven days unless legal practitioner appears . If the legal practi'tioner'does not appear within seven l^ays he maynotheard at all Ifiheprisoner statesthat he does not wish to be repre- '••sSnted by legal practitioner the court maypruceed at once with the case and will.net be obliged to give a hearing to any legal practitioner vvho should appear . ; -II 1 2 3 4 Date ofApplication for copy of Judgement ..- ....\ '3^\ o>^s.»y Uate on which copyreceived .........\.^g.^g) .^' ...... ............. Date on which Appeal seot................... 3.^.g^". 1-- Whether the prisoner wishesto be representedor set -Yes/ No 't;- No.... ......^>^.^......................... Name..e^^^y..^.^.^.^..........:.. Confinedin ...... .....-.^^.^...... Jail..^.^^^^^......,. .................. No.....^^ .........(..LA.^^ Dated ................ . \99^...'i.'^f.^4$.^~- - F<>rwarded to the CfflEF. JUDICIA,L-MA€HSTRATE•5^.0,;S^o^-.^^^.<s.%».^f•s-'A'l^ } c^ ^^ -'IAC-'^X'C'l'S-) togatherwhich a copy ofjudgementoF order passed in the case for favouT'of^rla&s'- 7- mission to the proper Appellate Courf'. i^t <'rt"'"1'.. r'--io\^--A(2-f>-<^' <^'3'S- j 3.2-1°') suw1^tient ,-W^r ^ •r-V—'; Dateofreceipt.in... ......;. ... ......;......... office... Dat& of receipt record to ^ccompaay the MemDdfAppeal to ihe.Appellate court ,. •\ t-u Na. • ..,..,4 Forwarded to the r^<iam^ Datedlf;........,..JASAWBR......^ •Dat^oMeceipt^aAppeUate Court .... Se. ?TSi£?"i985' ^.Na"-~s"-^- ~^te^ibdw?;/i^^.m^ oA-» !»i:; ^^jl 1?; HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1338 of 1995 APPELLANT Raju RESPONDENT Criminal Appeal No. 1339 of 1995 APPELLANT Balla,@ Kishore VERSU'S State of Madhya Pradesh VERSUS RESPONDENT State of Madhya Pradesh Shri Awadh Tripathi counsel forthe appellants. Shri Pravin Das Dy. G.A. for respondent/State. CRIMINAL APPEALS UNDE&SECTION 374 (2) OF THE CODEOF CRIMINALPROCEDURE. JUDGnfflENT (15.07.2010) Since the aforesaid two criminaf appeals arise out of the same judgment dafed 12.09.1995 passed by AdditionalSessions Judge, Durg in Sessions Trial No. 132/1,991, they are disposed of by this common judgment. 2. By the judgment impugned appellant Raju has been convicted under section 393/398 IPC and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.100 wrtereas appellant Balla @ Kishore has been cohvicted under section 393 IPC and sentenced to undergo rigorous imprisonment forfj.ve years with fine of Rs. 100, plus defaultstipulations. - /' / 3. .Oase ofthe prosecution in^riefisthat on 26.10.1990 at about 10.30 p.m. F1R (Ex. P-1) was lodged by Om Prakash Jaiswal (PW-1) alleging that on that day at about 5.30 p.m. when he was retuming horne after collecting money amounting to Rs. 8,966.50 from Diamond Enterprises, Eturg, on forest avenue road, he was stopped by the accused/appellants and uasused/appellant Balla asked him about the money. It isalleged that aiceused Balla assaulted him by fist on his jaw whereas accused Raju with * /A t-2.- a razor blade on his left arm tearing the shirt worn by him. However, seeing the vehicle with red beckon light coming towards them, the accused/appellants ran away. Thereafter he narrated the incident to Ramdhruv Viswakarma (PW-3) and Gulam Rasul (PW-6) and then the matter was reported to the Police, 4; So as to hold the acCused/appellants guilty, prosecution has examined as many as 09 witnesses in support of its case. Statements of the accused/appellants 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. 5. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. 6. Heard counsel forthe parties and perused the material available on recordincluding thejudgment impygned. 7. Counsel for the appellarrts submits that the FIR hasbeen lodged by the complainant mentioning the names ofthe accused/appellants whereas in his court statement he has categorically admitted that he did not know accused Raju earlier and came fo know about his name only after his arrest. He submits that as per the statement of the complainant when he was assaulted by the accused/appellants he sustained various injuries on his body whereas as per the statement of Dr. S. K. Shrivastava(PW-5) no such injury was noticed by him. This apart, according to the counsel for the appellants there are material Gontradictions and omissions in the statement of the complainant recorded in the Court andthe one recorded under seetion 161 of the Codeof Criminal Procedure. He submits that according to the ->statement of the complainant accused Raju had assault^ him with razor blade but no such recovery has been mgde from him and the razor blo^e'as alleged has been seized from accused Balla: He submits that-Premnath (PW-2), Ramdhruv Viswakarma (PW-3) and Gulam Rasul (PW-6) to whom the entire incident is said to have beeri narrated by the complainant have nowhere stated that the :coniplainant had informed them about the names of the ', accMsed/apjgellafflts wherea? the-FIR has been lodged by mentioning their names. :l-le submritg tFrat Premnath (PW-2) who is the seizure witness of --S- -3- cloths made vide Ex. P-2, has totally denied the same. Lastly he submits that as the prosecution has utterly failed to prove its case beyond reasonable doubt the appellants are entitled for acquittal. 8. On the other hand supporting the judgment impugned counsel for the respondenVstatesubmits that the judgment impugned being based on due appreciation of the evidenee available on record, there is no need to interfere with the same. He submits that as the report was lodged by the complainant promptly mentioning the nam.es ofthe accused/appellants, his statement in the Court that he came to know about the name of accused Raju only after his arrest, does not make any difference in the case of the prosecution. 9. From the FIR it is apparent that it bears the names of both the accused/appellants and contains a categorical allegation made by the complainant that accused Balla assaulted him by fist whereas accused Raju by razor blade. In Court statement the complainant has stated that accused Raju was not known fo him prior to the incident nor had he seen him earlier. According to him he came to know about the name of accused Rajuonly after his arrest. This witness has stated that when he was returning home after collecting money amounting to Rs. 9,000 approximately on his bicycle, accused Balla had stopped him and demanded money by gesture and when he asked as to what did he mean by that, he gave a reply by .slapping. Thereafter the accused/appellant namely Raju took out a razor blade and assaulted him on his hand and when he tried to save himself, he again assaulted him on his thigh and waist due to which his clothes got tom. Thereafter seeing a vehicle bearing red becfeon light, they fled away. On reaching home he narrated the incident tb Premnath (RW-2), Ramdhruv (PW-3) and Gulam Rasul (PW-6) and then the reR.(5rf was lodged. In cross-examination this witness has st.ated tttat he dfcl: notlodge the-.^ep'ort promptly because he first went / home, consulted his neighbours and then report was lodged on the next day whereas as per the FIR it was lodged on the same day. Thus, the statement of this withess appears to be of shaky, character. Premnath (PW-2) has stated that on the date of incident the complainant had fniformed'him thatWhen he.was-coming from Durg, he was stopped bytwo Rers6ris:"who had :made an attempt to rob him. Ramdhruv Viswkarma A. y^-^ •SS^giik ^ % A - q - (PW-3) has also stated in the same manner as Premnath (PW-2). Gulam Rasul (PW-6) has also not given any different statement. The statements of these three witnesses make it clear that the complainant had not informed any of them about the names of the accused/appellants whereas the report has been lodged by. mentioning the names of both of them. Sant Kumar Sahu (PW-4) is the Patwari who hacl prepared the spot rnap. Dr. S. K. Shrivastava (PW-5) who medically examined the complainant has stated that he found tenderness on right temporal region of his head whereas according to the complainant him'self he did not receive any injury thereon. M. H. Raghuvanshi (PW-7) is the witness of seizure of razor blade from accused Balla which was made by P. N. Dubey (PW-8). G. N. Dubey (PW-9) is the witness who had recorded the First Information Report. Investigating Officer however has not been examined in this case. ^ ^.- 10. In the light of the aforesaid discussion and keeping in view the inconsistencies which are galore in thestatement ofthe complainant, this Court isof the considered ppinipn that the Court below has not taken note of the evidence available on record in the right perspective and therefore they are liable to be dislodged. Accordingly, the appeals have sufficient merit to the credit 6f the accused/appellants and therefore they succeed. Impugned judgment is hereby set aside. They are acquitted of the charges levelled against them. Appellants are reported to be on bail. Their bail bonds stand discharged. i" Sd/ Pritinker Diwa&er Judge ^1:;1 / ' 3.