1 2025:CGHC:3989 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 754 of 2005 Judgment Reserved on – 27.11.2024 Judgment Delivered on - 22.01.2025 1. Sanjay Gupta S/o Shri Rajkumar Gupta, aged about 27 years, Occupation- Agriculturist, R/o. Ramanujganj, Police Station- Ramanujganj, District- Surguja (C.G.) 2. Omprakash Gupta, S/o Shri Rajkumar Gupta, aged about 27 years, Occupation- Agriculturist, R/o. Ramanujganj, Police Station- Ramanujganj, District- Surguja (C.G.) ---- Appellants Versus  State of Chhattisgarh through – Police Station- A.JA.K, Ambikapur , District- Surguja (C.G.) ----Respondent/State _____________________________________________________________ For Appellants : Mr. A. N. Bhakta, Advocate. For State/Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 10.08.2005 passed by learned Special Sessions Judge (SC & ST Act), Ambikapur, District- Surguja (C.G.) in Special Sessions Trial No. 07/2003, whereby the said Court convicted the appellants and sentenced them as under:- AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.01.22 16:49:38 +0530 2 Conviction Sentence Under Section 341 of IPC Fine of Rs. 200/- each, in default, to undergo rigorous imprisonment for 15 days each. Under Section 294 of IPC Fine of Rs. 100/- each, in default, to undergo rigorous imprisonment for 15 days each. Under Section 352 of IPC Fine of Rs. 700/- each, in default, to undergo rigorous imprisonment for 01 month each. (All the sentences are directed to run concurrently) Prosecution Story:- 2. Case of the prosecution is that the complainant- Brahaspati Singh Khairwar (PW-04) had lodged the written report at Police Station- Ramanujganj that when he was going to Village- Gamaharia, Ramanujganj by his vehicle, at that time on the way accused persons had overtaken the complainant’s party by Marshal Jeep, meanwhile, when they overtook by taking a side near Village- Auradamar, they started abusing the complainant for taking the side and stopped his vehicle and when the complainant scolded them, accused persons started abusing him on his caste and thereby they pulled the sleeves of his Kurta’s from the waist side, then his gunman intervened between them to save the complainant. Thereafter, both the accused persons were caught hold by the gunman and the matter was reported to the Police Station and the report was registered against the accused persons. Initially, the offence was registered as Crime No. 0/2001 at Police Station- Ramanujganj by S.I.- A. K. Joshi (PW-10) and thereafter the matter was referred to the Special Police for investigation, wherein 3 the case was registered as Crime No. 92/2001 and the case was investigated by DSP- B.P. Rajbhanoo (PW-11). During the investigation, he seized white coloured torn shirt of the complainant before the witnesses vide Ex. P/9 and as per statement of the complainant and other witnesses, spot map of the incident was prepared vide Ex. P/7. Statements of the witnesses were recorded, the accused/appellants were arrested vide Exs. P/10 & P/11. After completion of due and necessary investigation, prosecution led the charge-sheet before the Court of Chief Judicial Magistrate- Ambikapur, thereafter matter was committed to the Court of learned Special Judge (SC & ST Act), Ambikapur and the case was registered as Special Sessions Trial No. 07/2003 and the appellants were put to trial for offence punishable under Sections 341, 294, 506, 352 of I.P.C. and Section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act, 1989 against the appellants. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses. Statement of the accused/ appellants were also recorded under Section 313 of Cr.P.C., in which they denied all the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. The appellants also examined 02 defence witnesses to substantiate its case. 4. Learned trial Court after hearing the counsel for the respective parties and considered the material available on record has convicted and sentenced the accused/appellants as mentioned in para 1 of this judgment. Hence, this present appeal. 4 Submission of the parties:- 5. Learned counsel for the appellants submits that the impugned judgment of conviction is as against the facts, materials, evidence available on record, which is bad-in-law and is liable to be set aside, learned Trial Court has committed an error of law in not marshaling the cross- examination version of prosecution witnesses, which is available on record and also learned Trial Court has committed error of law that there is a counter case registered against the complainant’s party under Sections 341, 94, 147, 323, 342 & 365 of IPC. During the course of trial, learned Special Court had directed to call for the records of the counter case for trial together. He further submits that despite that the impugned judgment of conviction was passed in hasty manner without passing any judgment regarding offence against the complainant’s party. Learned Trial Court did not appreciate the defence version and it is clear that PW-02, PW-03, PW-07 & PW-08 have not supported the prosecution case and the learned Trial Court relied upon only the interested witnesses and thereby convicted the appellants for the said offence. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside 6. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court was fully justified in convicting and sentencing the appellants as mentioned in opening paragraph. Learned Trial Court minutely appreciated the oral and documentary evidence available on record to hold the appellants guilty of the said offence. So, the judgment passed by the learned Trial Court 5 is well merited and there is no scope for interference by this Court. Thus, the appeal filed by the appellants be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions, made here-in-above and perused the records minutely. Discussion & Analysis:- 8. It is clear from record of learned Trial Court that charges under Sections 341, 294 of IPC read with Section 3 (1)(x) of SC & ST (Prevention of Atrocities) Act, 1989 and Sections 506 & 352 of IPC were framed against the accused/appellants and after appreciating the oral and documentary evidence, learned Trial Court acquitted the accused/ appellants of the charges under Section 506 of IPC and Section 3 (1)(x) of SC & ST (Prevention of Atrocities) Act, 1989, but convicted them for offence punishable under Sections 341, 294, & 352 of IPC. It is also clear from record of learned Trial Court that the prosecution has examined as many as 12 witnesses to prove its case against the accused/appellants. 9. Complainant- Brahaspati Singh (PW-04) has stated in his deposition that on the date of incident, he was going to his village- Gamaharia from Ramanujganj by his vehicle, at that time the accused persons overtook his vehicle by their Marshal Jeep, at that time his vehicle stooped and when he asked for stopping the vehicle, the accused persons abused him on his caste, thereafter the dispute arose between the parties, however, the complainant was with his Gunman and he suggested to his Gunman to catch the appellants and take them to 6 Police Station to lodge the report. The complainant lodged the written report at Police Station- Ramanujganj vide Ex. P/2 and admitted his signature on A to A part and on the basis of said written report, Police of Police Station- Ramanujganj registered the FIR vide Ex. P/3 against the accused persons. In his cross-examination, he stated that at the time of incident he was President of Chhattisgarh Rajya Krishi Sahkari Bhumi Vikas Bank, Raipur. In para 15, he stated that on the date of incident, he was going to his Village- Gamaharia and in para 22, he admitted this fact that he came to know that accused persons has also lodged the report against him and his acquaintance. However, he denied the suggestions that he took the accused persons/appellants to his house and locked them in the room. 10. Prithvinath Singh (PW-05) stated in his deposition that on the date of incident, he was with Brahaspati Singh (PW-04) and we were going to village- Gamaharia by his Marshal jeep and at that time on the way of Auradamar, the accused persons were going by their Marshal jeep in front of them, and the dispute arose between the complainant’s party and the accused persons with regard to not giving the side to pass their vehicle. 11. Mohammad Mikhayil (PW-06) has supported the statement of the complainant (PW-04) in his deposition and he stated that he did not know that any report lodged against him and the complainant’s party with regard to the kidnapping of the accused persons at Police Station- Ramanujganj or other police stations, but he admitted this fact that he arrested by the Police of Police Station- Ramanujganj, however, he did 7 not know in which case he was arrested. 12. Ismile (PW-02), Devsai (PW-03), Nasrulla (PW-07), Ataullah (PW-08) & Kalyan Singh Thakur (PW-12) have not supported the prosecution case, however, they denied the suggestions given by the prosecution in their cross-examination, though the prosecution declared them hostile. 13. Learned Trial Court convicted the appellants under Sections 341, 294 & 352 of IPC. It is pertinent here to mention offence under Section 352 of IPC for ready reference hereinbelow as under:- ‘ Section 352 of IPC:- 352. Punishment for assault or criminal force otherwise than on grave provocation.— Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.’’ 14. It is vivid from order-sheets dated 16.06.2003, 17.06.2003 & 06.12.2004 that accused persons had informed about the counter case and learned Trial Court had also directed to the prosecution to file the case diary of the counter case, but after some time, learned Trial Court overlooked this fact and passed the judgment. It is quite vivid from cross-examinations of some witnesses that they admitted this fact that the counter case is also pending against the complainant’s party. 15. Mastak (DW-01) & Ganesh (DW-02) have stated that on the date of the incident, some dispute arose between both parties, and the 8 complainant- Brahaspati Singh (PW-04), assaulted the accused persons and took them to the village- Gamahariya by his vehicle. But, learned Trial Court did not appreciate all these facts and only relied upon the statement of complainant- Brahaspati Singh (PW-04). 16. It is well settled principle of law that in criminal cases prosecution must prove the guilt of an accused beyond reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities” 17. The Hon’ble Apex observed in the case of Basalingappa Vs. Mudibasappa, reported in 2019 (5) SCC 418 held in para 16, which state as under:- “16. This Court in M.S. Narayana Menon case5 held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of poof, the following was observed in para 32:(SCC p. 51) “ 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.” 18. In this case, it is clear that the complainant, prosecution witnesses, and other witnesses admitted the suggestions that on the same day of the incident, the criminal case was also registered against the complainant’s party and also the learned Trial court did not take any steps to conclude the trial of both the pending counter cases together that were registered against the complainant’s party and the appellants. 19. Sub-Inspector A.K. Joshi (PW-10) has also admitted this fact in para 4 9 that report was lodged by the appellants’ brother for offence punishable under Sections 341, 294, 147 and 323 of IPC and registered as Crime No. 193/2001 at Police Station- Ramanujganj. 20. Hence, it is clear from the statement of complainant- Brahaspati Singh (PW-04) and other witnesses that they are not reliable, independent witnesses have not supported the prosecution case and have turned hostile. It is clear that prosecution has utterly failed to prove its case beyond all reasonable doubts and the findings recorded by learned Trial Court being perverse are not sustainable in the eye of law. 21. In view of the aforesaid discussion and considering the overall facts and circumstances of the case, this appeal is allowed. The impugned judgment dated 10.08.2005 is set aside, appellants are acquitted of the charges of offence under Sections 341, 294 & 352 of IPC. 22. The Trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL