Chattisgarh High Court
Rajesh Pathak Alias Pramod Pathak vs State Of Chhattisgarh on 18 January, 2011
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 41 of 2000
Rajesh Pathak alias Pramod Pathak
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Shri BD Guru counsel for the appellant
^ Smt Smitha Ghai PL for the respondent State
CORAM: Honble Mr Justice Pritinker Diwaker
Dated: 18/01/2011
: Judgement
J U D G M E N T
18012011 CRIMINAL APPEAL UNDER SECTION 374 2 OF THE CODE OF CRIMINAL PROCEDURE This appeal is directed against the judgment and order dated 20.11.2000 passed by the Additional Sessions Judge, Ambikapur (Sarguja) in Sessions Trial No. 61/1998 convicting the appellant under Section 25 (1-B) (a) of the Arms Act and sentencing him to undergo rigorous imprisonment for two years and pay fine of Rs. 200, in default of payment of fine to further undergo rigorous imprisonment for three months.
2. Case of the prosecution in brief is that on 17.3.1991 Dehati Nalisi Ex. P-12 was recorded by the police at the instance of Om Prakash Shrivastava (not examined) in which it was alleged that on that day accused/appellant herein and two other persons came there on a motorcycle and some altercation took place between them and the victim Shailendra Singh. Thereafter, it is alleged that an attempt was made by the accused/appellant to assault said Shailendra Singh with the help of country made pistol. On that very day FIR Ex. P-9 was registered against the accused persons under sections 307/34 IPC and 25/27 of the Arms Act. After investigation challan was filed on 31.12.1991 for the said offences.
3. So as to hold the accused persons guilty, prosecution has examined as many as 11 witnesses in support of its case. Statements of the accused persons 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.
4. After hearing the parties the trial Court acquitted accused Neeraj alias Gudda of all the charges levelled against him. Accused/appellant herein has also been acquitted of the charge under section 307 IPC but he has been convicted and sentenced as mentioned above.
5. Heard counsel for the parties and perused the material available on record including the judgment impugned.
6. Counsel for the accused/appellant submits that injured witnesses Shailendra Singh and Virendra Singh (PW-4 and PW-3 respectively) themselves have not supported the case of the prosecution and have been declared hostile. He submits that out of two seizure witnesses to country made pistol vide Ex. P-6, one namely Om Prakash Shrivastava has not been examined by the prosecution whereas the other one namely Suresh (PW-
7) has not supported the case of the prosecution and has been declared hostile. He submits that in the absence of any evidence against the accused/appellant regarding his involvement in the crime in question, he cannot be convicted for the same. In addition to this, counsel for the accused/appellant submits that no report of the ballistic expert showing the nature of the weapon seized has been brought on record and therefore also the accused/appellant herein deserves to be acquitted. In support of his argument, counsel for the accused/appellant placed reliance on the decisions of the Supreme Court in the matter of Sunder v. State (NCT of Delhi) 2002 (6) SCC 593 and in the matter of Sumersinbh Umedsinh Rajput alias Sumersinh v. State of Gujrat 2007 (13) SCC 83.
7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that as the Investigating Officer has duly supported the case of the prosecution, the findings recorded by the Court below convicting and sentencing the accused/appellant are just and proper and need no interference from this Court.
8. Shailendra Singh (PW-4) and Virendra Singh (PW-3) who were allegedly assaulted by the accused persons have not supported the case of the prosecution and have been declared hostile. Sukhiram (PW-2) is the witness to seizure of motorcycle made under Ex. P-2. Buddhiman (PW-5) - the witness to seizure of motorcycle made under Ex. P-2 has not supported the case of the prosecution and has been declared hostile. M.P. Yadav (PW-6) is the witness to grant of sanction for prosecuting the accused/appellant. Suresh (PW-
7) is the witness to seizure of country made pistol made under Ex. P-6 has not supported the case of the prosecution and has been declared hostile. Assistant Sub Inspector Chaman Ram (PW-8) is the witness who had examined the weapon seized and given his report Ex. P-8. S.S. Sharma (PW-9) who at the relevant time was Assistant Sub Inspector and had done part of the investigation. Head Constable Pancham Prasad Pandey (PW-10) is the witness who had also done part of the investigation in the case. Sub Inspector Kripa Shankar Dwivedi (PW-11) is the investigating officer and he has supported the case of the prosecution.
9. Minute examination of the material available on record thus goes to show that almost all the prosecution witnesses except the investigating officer have not supported the case of the prosecution and they have been declared hostile. Moreover, out of two witnesses to the seizure of weapon allegedly used in the commission of the offence, one Om Prakash Shrivastava has been given up by the prosecution and the other one namely Suresh (PW-7) though has been examined, has not supported the case of the prosecution and has been declared hostile. This apart, no ballistic report has been obtained by the prosecution showing whether the weapon so seized was in a working condition or not. The prosecution has thus utterly failed to establish its case beyond all reasonable doubts and that being so the appellant has to have the benefit of doubt.
10. In view of what has been discussed above and also keeping in mind the aforesaid legal position, this Court is of the considered opinion that while passing the judgment impugned the trial Court has committed a grave error in over- looking the aforesaid lacunae on the part of the prosecution which certainly needs dislodgement in this appeal. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Appellant stands acquitted of the charge leveled against him. He is already on bail and that being so his bail bonds stand discharged.
Judge