Vinod Kumar Sen vs Smt Shanti Devi and others

This application has been preferred under Section 378(3) of the Cr.PC. for grant of leave to appeal against the order passed by the III Addl. Session Judge, Damoh vide judgement dated 12.08.2015, in Session Trial No. 54/2012, whereby the accused respondents has been acquitted from the charges under Section 394 of IPC.

Heard learned counsel for the parties. Perused the record.

Learned counsel for the applicant contended that the respondents were acquitted by the Trial Court from the offence punishable under Section 394 of Indian Penal code on the ground that there are so many lacunae in the prosecution evidence including material contradicts and omissions between prosecution witnesses. Even though, the main prosecution witnesses are related witness.

Complainant / Tularam (PW-7) stated that on 19.09.2011 at 9:00 pm while returning home with A.C.Mishra, Harikaran Upadhyay and V.K.Singh this incident happened. They were restrained by the respondents at Satpara culvert. Thereafter, respondents Dhaniram looted his jeep and Rs. 2000/- from him and inflicted him with fist and kick and by stones. In Para 7 of the cross-examination he admitted that he knew Dhaniram. He very well knew that, Dhaniram was the Sarpanch of the village Satpara, hence, the story alleged by the complainant Tularam (PW-7) seems doubtful that after restraining him he asked Dhaniram "Tum kaha ke ho". Further, he stated that he sustained many injuries over his legs, back, chest, nose, face and ribs with bleeding. He was examined by Dr. Ashok Baronia (PW-5) but he did not find any external injuries or bleeding on the complainant.

As per Dr. Ashok Baronia, the complainant was only complaining pain over his right knee, left wrist and back.

On the above ground, learned Trial Court properly convicted the appellant under Section 341 and 323 / 34 and sentenced him by imposing fine only.

With regard to conviction under Section 394 of IPC, the version of the complainant Tulsiram itself was rebutted by Bharat Patel (PW-9). In his cross-examination, he admitted that with the aforesaid Bolero vehicle, they went to Police Station. Dharmendra (PW-3) in his cross-examination has deposed that when he reached on spot he found 2-3 officers of factory with the complainant Tularam along with his Bolero jeep. Therefore, the prosecution story with regard to robbery (loot) of Bolero is not found trust-worthy. In this case, evidence of B.K.Singh (PW-2) and A.C.Mishra (PW-13) seems unnatural. At the time of the incident, they were present with the complainant but they did not help the complainant, nor reported the matter to the Police Station. They all are of officer rank. But they left the complainant alone at the

spot. Further, A.C.Mishra (PW-13) had not identified the accused / respondent. Dashrath (PW-2) and Makhanlal (PW-11) turned hostile. The FIR (Exh. P/12 ) was lodged by the complainant. In the FIR, the complainant narrated that his mobile and money fell down during the incident. This is substantial omission which created doubt on prosecution case.

As per the Investigating Officer Pramod Pandey (PW-10) and Fateh Singh (PW-14), looted property was seized from the respondents. But punch witnesses Brijesh (PW-1) and Harishankar (PW-6) contrarily deposed that memorandum and seizure memos were signed by them at Police Station and not on the spot as mentioned in (Exh. P/1) to (Exh.P/4). Further, that as per Brijesh (PW-1) punch witness Harishankar is related to him and the complainant. He is their brother-in-law. But Harishankar (PW-6) stated that he did not know the complainant. Such contradiction indicates that for some reason, he suppressed his relationship with the complainant. Therefore, the statement of Dhaniram (DW-1) seems reasonable and probable and creates suspicion on the prosecution story. That due to some dispute with the cement factory the false report might have been lodged by cement factory through the complainant. Aforesaid lacunae cannot be ignored by

us. It is not possible that the appellant tried to involve himself in such offence with known person.

This Court finds that the findings of the learned lower court are based on proper appreciation of evidence on record. No perversity or illegality has been found in the opinion of learned court below. In the case of Gemini Bala Koteshwara Rao and Ors Vs. State of Andhra Pradesh [AIR 2010 SC 589] and K.Prakashan Vs. P.K. Surendran [ (2008) 1 SCC 258] and T.

Subramanian Vs. State of Tamil Nadu [(2006) 1 SCC 401] Hon'ble Supreme Court has held that it is open to the High Court to reappraise the evidence and conclusion drawn by the trial Court, but only in case when the judgments of the trial Court is stated to be perverse. The Apex Court explained the word "perverse" to mean against weight of evidence. Even though two views are possible as an appellate court this Court should not reverse the judgment of acquittal mere because the other view was possible.

In view of the above principles laid down by the Hon'ble Supreme Court and the material evidence available on record, no case is made out to leave to the appeal. Hence, it is dismissed.