Full Judgment
M.Cr.C.No.392/2012.
31.7.13 As per B.D.Rathi,J Shri Yogesh Dhande, Government Advocate for the applicant-State.
This application for grant of leave to file appeal has been preferred under Section 378(3) of the Code of Criminal Procedure (hereinafter referred to as “the Code”.) being aggrieved with the judgment dated 24/09/11 passed by I Additional Sessions Judge, Tikamgarh, in Sessions Trial No.275/2010, whereby respondents have been acquitted of the offence punishable under Section 394 & 397 of the Indian Penal Code (“IPC”.
for short) and under Section 25 (1-B)(a) of the Arms Act.
Prosecution case, in brief, is that on 20/06/2009 at about 4.45 pm, complainant Bhagwandas Kushwaha, Ramesh Yadav and Ramsevak were returning on their Motor cycle not MP-36-MA-4274 to their Village Nuna after withdrawing Rs.10,000/- from Lodhoura, Post Office.
At that time, four unknown persons, riding on two Motorcycles, armed with Katta came there and intercepted the Motorcycle of the complainant.
One of them fired resulting into injury to complainant, whose Motorcycle also fell down.
The second miscreant also fired and caused gunshot injury to complainant’s associate Ramesh Yadav.
Thereafter, the miscreants after robbing the complainant of his licensed gun, mobile phone, bullet box etc., fled from the spot.
FiRs.Information Report (Ex.P/32, for short “the FIR”.) was lodged by Bhagwandas Kushwaha (PW10).in Police Station Lidhoura Tikamgarh, on which Crime No.98/2009 was registered and after investigation charge-sheet was filed.
Learned Government Advocate, while making reference to the evidence on record, submitted that the trial Court has erred in appreciating the evidence and the judgment of acquittal deserves to be interfered with.
Having regard to the arguments advanced by the learned Government Advocate, we have gone through the impugned judgment.
Learned trial Court, after appreciation of evidence on record, has held that Puran Singh (PW1) , Pramod Yadav (PW2).Jaiprakash Yadav (PW3) and Santosh Yadav (PW4) have deposed that the names of respondents were not disclosed by the complainant and his companions to them.
Ramsevak Namdeo (PW5).who was the victim, has also not disclosed the names of the respondents in his evidence.
In para 5 of his evidence, it was deposed that FiRs.Information Report was lodged by Puran Dau, though in fact, the report has been lodged by Bhagwandas.
In para 7, it was stated that during the identification parade he had not identified any of the respondents.
Complainant Bhagwandas has testified in para 4 of his evidence that he had not identified respondent No.2 Chandrapal and respondent No.4 Harendra Singh during identification parade.
With regard to remaining two respondents viz.
Vijay and Omram @ Ramu, trial Court found the evidence of Bhagwands to be untrustworthy because firstly, the FIR was lodged against unknown persons, secondly the names of the assailants were not disclosed by him to other witnesses and finally the identification parade was conducted by Naib Tehsildar Gulab Singh Baghel, PW.11 and according to him all the respondents were identified by Bhagwandas whereas Bhagwandas himself denied and deposed that respondents Harendra Singh and Chandrapal were not identified by him.
Witnesses of memorandum and seizure memo Rajendra Tiwari (PW7) and Ramkumar (PW9) have not supported prosecution story.
Evidence of investigating officer O.D.Tahdeya (PW16) was also found doubtful.
Sanction under Section 39 of the Arms Act has also not been produced by the prosecution.
On the aforesaid premises, the impugned judgment of acquittal was passed by the trial court.
We agree with the findings recorded by the trial Court that prosecution has failed to prove its case beyond reasonable doubt.
It is well settled that the judgment of acquittal should not be disturbed unless the conclusions drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perveRs.or palpably unsustainable.
Taking into consideration the reasons assigned on the face of evidence on record establishing the aforesaid facts and circumstances, the view taken by the learned trial Court was apparently a possible view.
As such, no interference is called for with the order of acquittal in question.
The application, being devoid of merit and substance, stands dismissed.
(AJIT SINGH) (B.D.RATHI) JUDGE JUDGE (and)