Chattisgarh High Court
State vs Ajay Swipar on 16 December, 2021
1NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No.376 of 2010
State of Chhattisgarh through G.R.P O.P Rajnandgaon
---- Appellant
Versus
Ajay Swipar S/o Bodhan Swipar, aged about 36 years, 16 Kholi Ward No.11
Station Para, Rajanndgaon -----Respondent
For Appellant/State: Shri BP Banjare, Dy. G.A
For Respondent: Shri Shreyankar Nandey, Advocate on
behalf of Shri Anup Majumdar, Advocate.
Single Bench:Hon'ble Shri Deepak Kumar Tiwari J
Order On Board
16.12.2021
1. This Appeal has been preferred under Section 378(1) Cr.P.C against
the judgment of acquittal dated 02.03.2005 passed by the Judicial
Magistrate, First Class, Rajnandgaon (CG) in Criminal Case No.621/2004,
whereby the Respondent has been acquitted from the offence punishable
under Section 392 IPC.
2. Case of the prosecution in brief is that on 08.08.2004, at 7.00 p.m,
the accused/Respondent along with the absconded accused Sanjay, looted
a purse having an amount of Rs.100/- and a railway pass from Ganga
Singh (PW-3) near the railway signal yard, Rajnandgaon for which, the
accused/Respondent was charged for offence punishable under Section
392 IPC.
3. After completing the investigation, the police has filed the charge
sheet and framed charges against the accused/Respondent and other
absconding accused Sanjay under Section 299 Cr.P.C.
4. The accused/Respondent denied the charges levelled against him
and stated in his statement that he has been falsely implicated in the case
and produced no evidence in his defence.
5. In order to prove its case, the prosecution has examined as many as
5 witnesses and after completing the trial, by way of the impugned
judgment of acquittal, the accused/Respondent has been acquitted from
the charge alleged.
6. I have heard learned Counsel for the parties and perused the entire
record minutely.
7. In this case, Ganga Singh (PW-3) has made a written complaint
(Ex.P-6) to G.R.P and on such basis, FIR (Ex.P-5) was recorded. In the
FIR (Ex.P-5), the time of information received at the police station was
entered in a different ink and except such entry, all other particulars were
entered in blue ink. But the information received at the police station was
entered in black ink and the prosecution has not been able to explain as to
why different ink was used for such entry.
8. Sanjay Agrawal, who conducted the test identification parade vide
Ex.P-2 was not examined by the prosecution and Ganga Singh (PW-1) did
not state that he identified the accused person in the test identification
parade. In para-5 of the cross-examination, he admitted that the police has
shown a person, therefore, he identified him. Suresh Chandra (PW-4) has
not stated clearly that he has identified accused/Respondent Ajay in the
test identification. He only says that from two unknown persons, he has
identified one person in the test identification parade. As the person who
conducted the test identification parade was not examined in the case and
from the evidence, it is also clear that the accused persons were not known
to the complainant, therefore, without conducting proper identification and
without establishing the identity of the person, it would not be possible for
the Court to convict the accused.
9. Ganga Singh (PW-3) also did not depose that on the memorandum
of the accused (Ex.P-3), any amount has been seized, though Dr. Singh
(PW-6), Sub-Inspector has seized Rs.50/- on the memorandum of the
accused Ajay.
10. Suresh Chandra (PW-4), has stated in his statement that on the
memorandum of the accused, police has seized Rs.50/-, a screw driver and
a purse. Dr. Singh (PW-5) has not seized any purse as stated by Suresh
Chandra (PW-4) and Ganga Singh (PW-1). The complainant has stated
that no amount or purse has been seized from the accused. So, there are
infirmities in the statements of the prosecution witnesses as also material
contradictions in the seizure and the memorandum of the accused.
11. The trial Court, after discussing the evidence on length, has reached
to the conclusion that the police has failed to prove the memorandum
seizure and identification, which is fatal to the prosecution and on such
basis, acquitted the accused.
12. Therefore, on the aforesaid appreciation, this Court, while hearing the
acquittal Appeal, does not want to disturb the finding recorded by the Court
below as the incident is of the year 2004 and the view taken by the trial Court
is possible view, therefore, the acquittal is affirmed and accordingly, the Appeal
is dismissed.
Sd/-
(Deepak Kumar Tiwari)
JUDGE
Priya
