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.