1 2025:CGHC:20298 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 494 of 2016 1 - Raj Gil @ Sunny And Anr. S/o Late Gopal Singh Gil Aged About 21 Years R/o M.I.G. 77, Kabir Nagar, Vijay Complex, B-1 Amlidih, Police Station Rajendra Nagar, District - Raipur Chhattisgarh., Chhattisgarh 2 - Rocky @ Rakesh S/o Mansukh Boblani Aged About 21 Years R/o Gali No. 7, Shaktidham, Dabripara, Police Station Telibandha, District Raipur Chhattisgarh. , District : Raipur, Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Arakshi Kendra Amanaka, Police Station Aamanaka, District Raipur Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Laxmin Tondey, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 02/05/2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant. I, therefore, requested for assistance from a counsel of the High Court legal aid services committee, Ms. Laxmin Tondey, Advocate has been nominated to assist the Court. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate 2 through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesi), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as her interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 2. This criminal appeal has been filed under Section 374 (2) of Cr.P.C. by the appellant against the judgment of conviction and order of sentence dated 16.03.2016 passed by 9th Additional Sessions Judge, Raipur, District-Raipur (C.G.), in Session Trial No. 175/2015, whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 307 of IPC R.I., for 5 years and fine of Rs. 500/-, in default of fine, additional R.I. for 3 months U/s 353 of IPC R.I. for 1 year and fine of Rs. 500/-, in default of fine, additional R.I. for 3 months. 3. Case of the prosecution in brief is that the injured Janak Prasad informed to Arakshi Kendra that he is posted as Techman in railway department. On 04.05.2015, the injured was on duty under Amanaka over bridge and at about 4 p.m. due to red signal, he has closed the crossing. At the same time one boy on Hero Honda motorcycle along with a girl tried to cross the railway track and when the injured stopped the boy to cross the railway track, he 3 argued with the injured and went away. At about 11:45 pm, two persons of which one fair and tall boy with maroon check shirt and another short heighted black boy with white shirt entered the cabin and said the injured how did you stop to cross the railway track and abused and the black boy with blade assaulted on his face and deter the public servant. 4. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 8 witnesses. Statement of the accused/appellants under Section 313 Cr.PC was also recorded in which he pleaded his innocence and false implication in the case. Defence however has examined 1 witnesse in support of its case. 5. After hearing the parties and going through the material available on record including the evidence of the witnesses, learned 9th Additional Sessions Judge, Raipur has convicted and sentenced the accused/appellants as described in paragraph No. 2 of this judgment. Hence this appeal. 6. Learned counsel for the appellant contended that the learned trial court has wrongly relied on the evidence of Manoj Kumar (PW-2) who was projected as an eye witness by the prosecution, has deposed that his statement under Section 161 of Cr.P.C. was recorded after 1 month from the date of incident. He further contended that learned trial court has completely overlooked the evidence of Bir Singh Prajapati (PW-4) who has denied to know the appellants. 4 7. On the other hand, counsel appearing for the State supports the judgment impugned and submits that taking into consideration the statements of the injured/victim and doctor which gets corroboration from the testimony of other independent witnesses, the findings recorded by the 9th Additional Sessions Judge, Raipur holding the accused/appellant guilty under Section 307 and 353 of IPC being based on proper appreciation of the evidence on record are fully justified and do not call for any interference in this appeal. 8. Heard counsel for the parties at length and went through the evidence on record with utmost care and caution. 9. PW-1/ injured has deposed in his statement that he knows the accused present in the Court who has wore blue shirt whose name is Sunny @ Rajgil and other co-accused who has wore lining shirt whose name he did not know. On being asked, the boy wearing lining shirt told his name to be rocky. 10. PW-2/ Manoj Kumar has deposed in his statement that he did not know the accused persons present in the Court. He know PW-1. He is also working in Railway department. 11. PW-3/ Dr. Sunil Kumar Agrawal who medically examined the injured/ PW-1 gave his report (Ex. P-4) wherein he has stated that linear abrasion over right cheek of size 6.5 cm x 0.1 cm, incised wound over left side of face size 6 cm x 0.2 cm x 0.3 cm, lacerated wound over left hand- base of thumb size 3 cm x 0.2 cm x 0.2 cm, incised wound over left hip of size 2.5 cm x 0.2 cm x 0.3 cm. The 5 doctor gave the opinion that all the injuries are simple in nature caused by hard and blunt object. 12. PW-6/ Sandeep Chandrakar, Investigating Officer has deposed that the injured PW-1 has lodged the complaint against 3 unknown accused persons. In para 4 of his cross-examination he admitted that in FIR the complainant/injured has mentioned the description of the accused persons as one fair coloured and one black coloured boy. He again admitted that the name of the accused persons is not mentioned in the statement under Section 161 of Cr.P.C. of injured and K. Manoj Kumar. He again admitted that he has not done the identification parade of the accused persons in the present case. He himself admitted that since the photograph of the accused Sunny Rajgir was affixed on the Nigrani Register on seeing which the injured identified the accused. He also admitted that he did not took a permission for perusal of Nigrani Register of Kabir Nagar. He admitted that he did not gave any notice to the complainant/injured to see the photograph affixed in the Register. 13. Close scrutiny of evidence led by the prosecution reveals that the Investigating Officer (PW-6) has committed lacuna in investigation and has not conducted the face identification parade under Section 9 of the Indian Evidence Act, 1872. 14. No doubt, the face identification parade under Section 9 of the Indian Evidence Act, 1872 is a corroborative piece of evidence and doc evidence that is witness examined before the court is a substantial piece of evidence but it is necessary that after incident 6 face identification shall be conducted. The time of incident is 11:45 pm therefore, it is very much necessary to conduct the face identification parade. 15. Taking into consideration the statements of witnesses, the documents available on record, medical report given by the doctor, facts and circumstances of the case, this Court is of the considered opinion that the findings recorded by the Trial Court suffers from perversity and needs to be set-aside. 16. Accordingly, the present Criminal Appeal is allowed. The judgment of conviction and order of sentence dated 16.03.2016 passed by 9th Additional Sessions Judge, Raipur (C. G.) in Sessions Trial No. 175/2015 is hereby set-aside. Appellants stands acquitted of all the charges levelled against him. 17. It is reported that the appellants are on bail. Their bail bonds are not discharged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C. 18. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE Madhurima