1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 836 of 2016 1. Dinesh Mittal S/o Bajranglal Mittal, Aged About 37 Years, Occupation Advocacy, 2. Yogesh Mittal S/o Bajranglal Mittal, Aged About 34 Years, Occupation Dance Teacher, 3. Ganesh Mittal S/o Bajranglal Mittal, Aged About 40 Years, Occupation Business, All are R/o Sadar Bazar Hatri Chowk Raigarh, District Raigarh, Chhattisgarh, ... Applicants versus • State of Chhattisgarh Through Station House Officer, Police Station Kotwali Raigarh, District Raigarh, Chhattisgarh, ... Respondent For Applicants : Mr. Amit Singh Chauhan, Advocate, For State/Respondent : Ms. Smita Jha, Panel Lawyer Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board 24/04/2025 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 29.06.2016 passed in Criminal Appeal No.80/2016 by the Third Additional Sessions Judge, Raigarh, District Raigarh (C.G.), wherein the learned Appellate Court has affirmed the conviction under Sections 323/34 of the India Penal Code, 1860 (in short ‘the IPC’) and sentence PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.04.25 14:31:20 +0530 2 of imposing fine of Rs.1,000/- each, in default of payment of fine amount, additional S.I. for 1 month. 2. Case of the prosecution, in brief is that, on 18.10.2003 at about 11:20 AM when the complainant/victim Nandlal Chhabda (PW-01) was doing his work in his shop, at that time he saw that the applicants/accused persons were constructing wall over the roof of the shop and when he opposed the same, scuffle took place between the complainant and the applicants. It is alleged that the applicants have committed marpeet with the complainant with the help of hand, fists, brick and iron rod due to which the complainant suffered grievous injuries over his body. On the basis of the above background, the complainant lodged FIR (Ex.P-4) against the applicants. 3. During investigation, spot map was prepared vide Ex.P-5 and the statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet has been filed against the present applicants under Section 325/34 of the IPC before the Chief Judicial Magistrate, Raigarh, Chhattisgarh. The accused/applicants abjured the guilt and prayed for trial. 4. After appreciation of oral and documentary evidence available on record, the Court of learned Judicial Magistrate First Class, District – Raigarh, in Criminal Case No.1575 of 2004 vide judgment dated 28.04.2016, in place of charges under Section 325/34 of the IPC, as a lesser offence, convicted the applicants under Sections 323/34 of the IPC and imposed fine of Rs.1,000/- each, in default of payment of fine amount, additional S.I. for 1 month. Against the said judgment, the applicants preferred an appeal before the learned Appellate Court 3 wherein the said Court affirmed the judgment passed by the learned Trial Court. Hence, this revision. 5. Learned Counsel for the applicants submits that the learned Court of JMFC as well as Appellate Court, without properly appreciating the evidence available on record, were not justified in convicting and sentencing the applicants for the aforesaid offence. He further submits that no seizure of any weapon or other articles has been made by the prosecution. He further submits that there are material contradictions and omissions in the statement of the complainant and investigating officer. Further, the prosecution has failed to prove its case beyond reasonable doubt. On these premises, it is prayed by counsel for the applicants that applicants be acquitted of the charges leveled against them. 6. On the contrary, learned State Counsel, while supporting the impugned judgment, submits that the Court of JMFC as well as the Appellate Court have rightly convicted and sentenced the applicants and there is no illegality or infirmity in the same warranting interference by this Court. 7. I have heard learned counsel appearing on behalf of the parties and perused the record. 8. The complainant/victim Nandlal Chhabda (PW-01) has stated in his examination-in-chief that on 18.10.2003 at about 11:00 – 11:15 AM, when he came to his shop, he saw some masons were demolishing (tod-fod) the upper side of his shop and when he opposed the same, then the applicants came and committed marpeet with him. Applicant Dinesh has brought iron rod and tried to assault him on his head which 4 he stopped with his hands due to which he suffered injuries on his fingers. He further stated that the other applicants/accused persons have caught hold of him and threw him down. However, this witness in his Court statement, admitted in his cross-examination that he had not stated anything regarding the demolition done by the masons in his police statement (Ex.D-1), further admitted that he had stated in his police statement that applicant Yogesh and Ganesh had caught hold of him but he did not know the reason as to why the said fact is not mentioned in his police statement (Ex.D-1). He further admitted that he was attacked on his head and used his both hands to avoid injuries over his head. However, in paragraph 7 of his cross-examination, it has been admitted that as per the certified copy of the Rajnamcha Sanha i.e. Ex.D-2, there is no mention of any injury caused on the fingers of the complainant. On the contrary, it is pertinent to mention here that as per the statement recorded by the police (Ex.D-1) under Section 161 of the Cr.P.C., he has stated that on the date of incident i.e. 18.10.2003 at about 11:20 AM, when he was in his shop, at that time he saw that the present applicants/accused persons were constructing a wall over the roof of the shop and when he opposed the same, the applicants abused him and Dinesh Mittal (applicant No.1) assaulted him with iron rod, Yogesh Mittal (applicant No.2) assaulted him with hands and fists whereas Ganesh Mittal (applicant No.3) assaulted him with brick due to which he (complainant) suffered injuries on his hands fingers and legs. This apart, he further stated in his Court statement that his son, namely, Ramesh Kumar Ramani has seen the incident and, after seeing the incident, he went to the police station, thereafter, the police came and took him (complainant) and the applicants to the police 5 station. However, his son Ramesh Kumar Ramani has not been examined by the prosecution for the reason best known to it. This witness further admitted that house of the applicants is situated just behind the wall of his shop and, a cloth shop of the applicants is also situated adjacent to his shop. This witness in paragraph 14 of cross- examination, has admitted that he did not lodge any report in police station with regard to the demolition done by the masons. Therefore, it appears that the alleged demolition was not done by the present applicants/accused persons. He further admitted that the applicants have filed a complaint case against him and he has been released on bail in the said case. Moreover, the iron rod and piece of brick have not been seized by the police. Thus, from perusal of the police statement (Ex.D-1) and admissions made in the Court statement by the complainant, there appears major contradictions and omissions in the said evidence. Thus, the statement of the complainant Nandlal (PW-01) is not duly corroborated with his statement (Ex.D-1) recorded by the police. 9. Jaipal (PW-02) in his Court statement has stated that he knew the applicants and the complainant Nandlal as his shop is situated adjacent to the shop of the complainant. He further stated that on the date of incident, a quarrel took place between the applicants and the complainant on the issue of shop and house. He heard filthy language coming out from the place of incident and saw the applicant Dinesh bringing crowbar from his house, but he has specifically stated that he did not know about the actual incident as he was sitting inside his shop. In his cross-examination, this witness has admitted that at the time of incident, blood was oozing out from the head of the applicant/accused 6 Dinesh and he has not stated in his police statement regarding the injury sustained to the complainant on his hands. Moreover, this witness has further admitted that at the time of incident, he was inside his shop so he could not see what was happening in the shop of the complainant Nandlal. On hearing the commotion, when he came out of his shop, he saw that Nandlal was standing on the roof and further, admitted that Nandlal himself had brought ladder and climbed on the roof. This apart, he admitted that he could not say about the incident which took place between the applicants and the complainant and regarding the injuries. However, this witness has been declared hostile. 10.Dr. V.K. Mehta (PW-03) who has examined the victim Nandlal, has stated in his statement that on 18.10.2003, the victim was brought to him for medical examination. Upon examination, he found injuries over finger of the left hand and a scratch in left leg of the victim and he gave his MLC report i.e. Ex.P-1. He further opined that the injuries sustained to the victim are prior to three hours of his examination and are of simple nature. 11.The investigating Officer, namely, Bhagwat Yadav (PW-05), A.S.I., in his cross-examination has admitted that on the place of incident, there were many shops situated near the shop of the complainant but, he has not recorded the statements of the other shopkeepers. He further admitted that he has not made any investigation regarding the injuries sustained to the applicants Dinesh and Ganesh. Thus, he has not fairly investigated the matter. 7 12.On minute examination of the evidence available on record and on perusal of the statements of the witnesses, it reflects that there are major contradictions and omissions present in the police statement (Ex.D-1) and statement of the complainant Nandlal (PW-01), further, Jaipal (PW-02), who is said to be the eye-witness to the incident, has not supported the case of the prosecution and he has been declared hostile. This apart, there is a complaint case registered against the complainant Nandlal and in the said case, he has been released on bail. Moreover, no seizure of any articles/weapons have been made nor the statements of the nearby witnesses have been recorded. This apart, it has not been specifically stated by the complainant himself about the injuries sustained to him on his fingers, further, Bhagwat Yadav (PW- 05), A.S.I. has admitted in cross-examination that he has not inquired about the injury sustained to the applicants/accused Dinesh and Ganesh, thus, the prosecution case appears to be doubtful. It is pertinent to mention here that it is the bounden duty of the prosecution to prove its case beyond reasonable doubt, but in the present case, the prosecution has not been able to discharge its duty by adducing cogent and clinching evidence to show the complicity of the applicants in the crime in question. 13.For the foregoing discussion, I am of the considered opinion that the applicants are entitled for acquittal as the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned Trial Court as well as Appellate Court were totally unjustified in convicting and sentencing the applicants for the aforesaid offences. 8 14.Accordingly, the impugned judgments of conviction passed by the Court of JMFC dated 28.04.2016 and that of Appellate Court dated 29.06.2016 are liable to be and are hereby set-aside and the applicants are acquitted of the charges levelled against them. 15.In the result, the criminal revision is allowed. 16.Since the applicants are reported to be on bail, therefore, their bail bonds shall remain in force for a period of six months from today in view of provision of Section 437-A of Cr.P.C. Sd/- (Radhakishan Agrawal) Judge Prakash