1 2025:CGHC:19836-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1007 of 2016 1 - Rishipal Sharma S/o Balawant Sharma Aged About 24 Years Occupation Security Guard Jindal, R/o Village Julanikheda, P.S. Kalayat, District Kaithal Hariyana. At Present R/o Tamnar, District Raigarh Chhattisgarh. ---Appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Tamnar, Civil And Rev. Distt. Raigarh Chhattisgarh --- Respondent(s) CRA No. 622 of 2017 1 - Sohan Lal Sharma S/o Balwant Sharma Aged About 25 Years Occupation Labour, R/o village Julanikheda, police Station Kalayat, District- Kaithal, Haryana ---Appellant Versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Tamnar Civil And Revenue Districtt- Raigarh, Chhattisgrh. --- Respondent(s) For Appellants : Shri Manoj Jaiswal, Advocate. For Respondent(s) : Shri Amit Buxy, Panel Lawyer. KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.05.02 19:12:38 +0530 2 Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (01/05/2025) Deepak Kumar Tiwari, J 1. The aforesaid Appeals are being disposed of by this common judgment, as they arise out of judgment dated 15th July, 2016 passed by the 1st Additional Sessions Judge, Raigarh, District Raigarh in ST No.63/2015 by which the appellants have been convicted under Sections 394 & 324 of the IPC and sentenced to undergo RI for 10 years & to pay a fine of Rs.1,000/-, each, in default of payment of fine to further undergo RI for 3 months, each and to undergo RI for 1 year & to pay a fine of Rs.500/-, each, in default of payment of fine to further undergo RI for 1 month, each, respectively. 2. Case of the prosecution, in brief, is that in the intervening night of 9th & 10th March, 2015, between 9.30 pm to 6-7 am, near the JPL State Bank, Tamnar, the appellants have committed loot of motorcycle (Yamaha) from complainant Vidhyadhar (PW-1) and also attempted to commit his murder by inflicting injury on his neck by a sharp edged weapon. Further case of the 3 prosecution is that complainant Vidhyadhar (PW- 1) was working in Sharda Chemicals, JPL Tamnar. On 9th March, 2015, appellant Rishipal Sharma had called the injured i.e. Vidhyadhar (PW-1) to consume liquor, as his brother i.e. another appellant Sohan Lal Sharma has come from Haryana. Thereafter appellant Rishipal had taken motorcycle of the victim/complainant to purchase the liquor, after which all the three had consumed liquor. Brother of Vidhyadhar (PW- 1) namely, Vijay Kumar (PW-2) has lodged an FIR against unknown persons on 10th March, 2015 stating that in the intervening night of the incident, his brother i.e. Vidhyadhar (PW-1) had gone to attend his duties and did not return till morning. The Village Sarpanch Shyam Kumar Rathiya (not examined)had informed him that the victim/complainant was lying in an injured condition near the JPL State Bank, there was injury on his neck appears to be caused by sharp edged weapon and the blood was oozing out of the injury. Dying declaration of the victim/injured was recorded on 11th March, 2015 wherein he has stated that some unknown person has assaulted him. Thereafter, during investigation, diary 4 statement of the victim/injured was recorded under Section 161 of the CrPC wherein he has stated that the appellants have committed loot of his motorcycle and also caused bodily injury to him. The victim was medically examined vide Ex.P/9 by Dr. Leena Rai Shrivastava (PW-8) and she has found multiple deep wounds over back of neck and scalp. 3. Crime detail form was prepared vide Ex.-P/3. Memorandum statement (Ex.-P/10) of appellant Sohan Lal was recorded on 19th March, 2015, in pursuannce of which motorcycle of the injured was recovered vide Ex.-P/11. The house of appellant Rishipal Sharma was searched vide Ex.- P/4, but looted mobile was not recovered and one mobile was seized vide Ex.-P/7 from appellant Rishipal Singh having SIM card of Reliance company No.9770880096. The blood stained clothes of the injured and blood stained wrist watch were seized vide Ex.-P/13. Plain soil and blood stained soil were seized vide Ex.-P/14. The stone which was used for commission of offence was searched vide Panchnama (Ex.-P/15), but the stone could not be traced. On the 5 clothes seized from the injured, human blood was found in FSL report vide Ex.-P/19. 4. After completion of the investigation, charge sheet was filed before the concerned Magistrate from where the case, being triable by the Sessions Court, was committed to the trial Court where the charges were framed against the appellants under Sections 394 read with Section 397 as also under Section 307 of the IPC. The charges were read over and explained to the appellants, who abjured their guilt, took a plea of false implication and entreated for trial. However, the appellants have been convicted under Section 394 of the IPC and instead of section 307 of the IPC, they have been held guilty for lessor offence under Section 324 of the IPC. 5. In order to bring home the charges, the prosecution has examined as many as 11 witnesses and exhibited 19 documents. Statements of the appellants were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution evidence and pleaded innocence and false implication. However, in defence, neither any 6 witness has been examined nor any document has been relied upon. 6. After conclusion of trial, the trial Court by the impugned judgment, on appreciation of evidence available on record convicted and sentenced the appellants as mentioned in para-1 of this judgment, which led to filing of present Appeal by the appellants. 7. Shri Manoj Jaiswal, learned counsel for the appellants would submit that the trial Court has wrongly convicted the appellants, as when the victim/injured (PW-1) was brought to the hospital after the incident, his dying declaration was recorded vide Ex.-P/1 wherein he has not named the present appellants. He has only stated that some unknown person has assaulted him. However, during investigation, he has made certain improvement in his diary statement recorded under Section 161 of the CrPC and made allegations against the present appellants and a concocted story of loot and causing injury to him has been created. He further submits that only one motorcycle has allegedly been recovered in pursuance of memorandum statement of appellant Sohan Lal vide 7 Ex.-P/10, but there is no evidence to show that the aforesaid motorcycle belongs to the victim/injured. He further submits that the witnesses to the memorandum and seizure have turned hostile and not supported the case of the prosecution. In spite of the aforesaid infirmities, contradictions and omissions, the trial Court has wrongly convicted the appellants. In the aforesaid backdrop, the appellants are entitled for acquittal by extending them benefit of doubt and the Appeals deserve to be allowed accordingly. 8. Per contra, learned State Counsel would support the impugned judgment & order and submit that the prosecution has been able to bring home the charges beyond reasonable doubt and the trial Court has rightly convicted the appellants for the offences in question on the basis of evidence available on record. The contentions raised by learned counsel for the appellants as such deserve to be rejected and the appellants are not entitled for acquittal on the basis of benefit of doubt and their Appeals are liable to be dismissed outrightly. 8 9. We have heard learned counsel for parties, considered their rival submissions made herein- above and also gone through the records with utmost circumspection. 10. (PW-1) Vidyadhar has stated that on the date of the incident i.e. 9th March, 2015, appellant Rishipal had called him over telephone that his brother i.e. another appellant Sohan Lal has come, and invited him for consuming liquor. Thereafter he went to his house in his motorcycle to the colony near the Bank. All the three sat near the pipeline and consumed liquor. He would further depose that after consuming liquor, he was not feeling well and he felt some giddiness and sensation like vomitting. At that time, appellant Rishipal caught hold of his head and assaulted on his neck by using pen like knife, and brother of appellant Rishipal namely, Sohan Lal looted his purse and two mobiles. He has also caused injury by a sharp weapon near his neck. Thereafter he became unconscious. He was admitted to OP Jindal Hospital, Raigarh where his dying declaration was recorded vide Ex.-P/1. This witness in his cross-examination has categorically admitted that while recording 9 dying declaration (Ex.-P/1), he has not named the appellants or the author of the crime or they have caused any injury to him. Perusal of dying declaration (Ex.-P/1) would show that (PW- 1) Vidyadhar has not named any person. He has clearly stated that he is not aware as to who has assaulted him and he has not seen any person. In para-7 of his cross-examination, he has admitted the fact that at the time of incident, no quarrel has taken place with the appellants. Even at the time of recording his statement, he has not named any person and he does not know as to who has caused injury to him. He has also not stated that during the incident, the appellants have looted his motorcycle. As regards the purse and two mobiles which have been allegedly looted by the appellants, no charges were framed. 11. (PW-2)Vijay Kumar, who is the brother of injured (PW-1), has lodged the FIR on 10th March, 2015, at about 18.15 hours, though the alleged incident has taken place in the intervening night of 9th/10th March, 2015 and the said FIR was registered against unknown person. (PW-2)Vijay Kumar has clearly admitted in his cross- 10 examination that at the time of recording FIR, his brother (PW-1) was talking to him commonly, but he has not stated as to the manner in which the incident has taken place. He has also not disclosed the names of the appellants that they have caused injury to him. This witness was declared hostile. When the prosecution has put leading question to him, then he has stated that PW-1 disclosed the names of the appellants that they had caused injury to him. This witness has also not stated that the motorcycle of the injured was looted by the appellants. He has only stated that the two mobiles belonging to his brother were also not available. 12. Considering the evidence of the injured (PW-1) and his brother (PW-2)Vijay Kumar and the fact that the FIR was registered against unknown person on 10th March, 2015, also considering the statement (Ex.-P/1) wherein the injured himself has not named the appellants that they have caused injury to him and also looted his motorcycle, particularly considering the statement (Ex.-P/1) in which the assailants have not been identified by the victim; during investigation, while recording diary statement, 11 certain improvements have been made by the victim, we are of the opinion that in the absence of any plausible explanation, the version of PW-1 and PW-2 can be said to be wholly not reliable, as the victim had not seen the assailants during the incident nor identified them. 13. As far as recovery of one motorcycle in pursuance of memorandum statement of appellant Sohan Lal vide Ex.-P/10, which was seized vide Ex.-P/11 is concerned, the said memorandum statement was recorded on 19th March, 2015. The witnesses to the memorandum and seizures namely, (PW-9)Rohtas and (PW-10) Rajpal have not supported the case of the prosecution and they have been declared hostile. They have categorically stated that they had put their signatures on the blank papers in the Police Station and no motorcycle was recovered in their presence from appellant Sohan Lal. Even otherwise, there is no evidence to the effect that the recovered motorcycle had in-fact belonged to the complainant/victim. Further, PW-1 has also not stated that his motorcycle was looted during the said incident. 12 14. For the foregoing, we are of the opinion that the prosecution has failed to establish the chain of circumstances which should be such as to lead to an irresistible conclusion that is incompatible with the innocence of the accused, to hold that the accused/appellants were the author of the crime in question. 15. In the result, the aforesaid Appeals are allowed. Conviction and sentence imposed upon the appellants under Sections 394 & 324 of the IPC are set-aside and they are acquitted of the said charges. The appellants are on bail. They need not surrender. The bail bonds furnished by the appellants shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with original record be transmitted forthwith to the trial Court. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve