Allowed

Ashok @ Mirchi Tiwari v. State of Chhattisgarh

Chhattisgarh HC5 Dec 2014CRR/330/2004

Case brief

AI extract

What is this about?

In criminal revision challenging conviction and sentence for theft, the High Court examined discrepancies in witness depositions, hostile independent witnesses, and contradictory recovery stories, holding the prosecution failed to prove the case beyond reasonable doubt and acquitted the applicant.

What did the court decide?

Impugned judgment dated 08.06.2004 set aside; applicant acquitted of the charge; bail bonds continued.

Ashok @ Mirchi Tiwari Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2014)

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IN THE HIGH COURT OF JUDICATURE CHHATTISGARH

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AT BILASPUR

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Criminal Revision 3% / 2004

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APPLICANT Ashok @ Mirchi Tiwari, S/o. Accused / Madan Lal Tiwari, aged about ^^ 23 years, R/o. Kududand, ^.^•::::-.. Near Shiv Chowk, House fi\ed on. <•-••" bYSb"--^-1''" ,,.......-'^dvocate of Ramchandel, P.S. Civil Line ••.—• District Bilaspur (C.G.) ^toO.R.^ gb^ VERSUS RESPONDENT The State of Chhattisgarh Through P.S. Civil Line, District Bilaspur (C.G.) CONVICTION SENTENCE U/s. 379 of I.P.C. 6 Months R.I. and fine of Rs. 100/-

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CRIMINAL REVISION UNDER SECTION RE AD WITH

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SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Single Bench : Hon'ble Shri Justice P. Sam Koshy

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CriminaLRevision No. 330 of 2004

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Applicant

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Ashok @ Mirchi Tiwari

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VERSUS

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State of Chhattisgarh

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Resoondent

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Post for pronouncement of the order on 05.12.2014.

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Sd/P. Sam Koshy Judge

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^G"5^

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HIGH COURT OF CHHAmSGARH AT BILASPUR

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Single Bench : Hon'ble Shri Justice P. Sam Koshy

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Criminal Revision No. 330 of 2004

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ADolicant

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Ashok @ Mirchi Tiwari

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VERSUS

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Respondent State of Chhattisgarh

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Shri Dheerendra Pandey, counsel for the applicant. Ms. Farah Minhaj , P.L. for the State.

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O R D ER

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(05.12.2014)

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By way of the instant criminal revision the applicant has challenged the judgment of conviction and order of sentence dated 08.06.2004 passed by the Additional Sessions Judge (FTC),^{BilaspurinCriminal Appeal No.118/2003.}

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Facts leading to the instant revision in brief are that as per the prosecution, a complaint was lodged by the complainant Pravesh Dwivedi alleging that on 28.11.2000 he had gone for tuition on his bicycle and after completion of tuition when he came out of his class, the bicycle was found missing. On realizing that the bicycle had been stolen, he on the next day lodged a report to the Police Station, Civil Line, Bilaspur. On the very same day i.e. 29.11.2000, the Police found the applicant in possession of the bicycle and upon being questioned, the applicant could not give satisfactory explanation nor any documents to show that the bicycle in fact belonged to him. On the contrary, the complainant Pravesh Dwivedi identified his

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bicycle and submitted that it was the same bicycle which had been stolen on the previous day. On account of the fact that the cycle was seized from the possession of the present applicant and that the applicant was not having sufficient documentary proof in respect of the ownership of the bicycle, the Police Authorities filed a charge-sheet against the applicant for the offence under section 379 of IPC and the matter was put to trial before the Court of Judicial Magistrate First Class, Bilaspur in Criminal Case No.516/02.

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After conclusion of the evidence, the trial Court vide its judgment dated 30.06.2003 found the applicant to be guilty of having committed the offence punishable under Section 379 of IPC and accordingly convicted the applicant for the said offence and imposed a sentence of one year rigorous imprisonment with fine ofRs.100, in default 20 days simple imprisonment.

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The said judgment of the JMFC was put to challenge by way 6f a criminal appeal registered as Criminal Appeal No. 118/03 before the Additional Session Judge (FTC), Bilaspur. The appellate Court also after considering the facts and circumstances of the case and also taking into consideration of the contentions of the appellant vide its impugned judgment dated 08.06.2004 confirmed the conviction of the appellant i.e. the present applicant for the offence u/s 379 ofIPC. However, taking a lenient view on the sentence part, the appellate Court reduced the sentence to six months RI from that of one year. 5. It is this judgment which is under challenge by way of the instant criminal revision.

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Counsel for the applicant submits that the date ofincident in the instant case is 28.11.2000 and by now almost 15 years time has elapsed and that the applicant has already undergone jail sentence for a period of 20 days, therefore taking a lenient view the sentence imposed upon the applicant may be reduced to the period already undergone by him.

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He submits that even on the merits of the case, if we peruse the evidence which has been adduced before the Court below it would reveal that Sandeep Bhonsle (PW-3) and Yogesh Shriwas (PW-5) the independent witnesses to the seizure have not supported the case of the prosecution in any manner and have tumed hostile. Thus, there is a great element of doubt in the prosecution story in the absence of an independent witness on behalf of the prosecution and therefore granting the benefit of doubt to the applicant and he may be acquitted of the charge levelled against him. Counsel for the applicant submits that from the evidence of another seizure witness namely Aswani Pandey (PW-2), it also reflects that there is a categorical statement made by the applicant during the course of the seizure that the bicycle which was in the possession of the applicant was in fact his own bicycle and this fact has not been rebutted by any of the prosecution witnesses by leading cogent and substantive evidence to disprove the same. He further submits that a plain reading of the deposition of PW-2 and PW-4, the Investigating Officer it would further show a great amount of contradiction in the deposition of PW-2 when compared to that of PW-4. For all these reasons, according to the counsel for the applicant, the

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applicant has been falsely implicated in this case and therefore he may be acquitted of the charge levelled against him. 8. State counsel opposing the prayer made by the counsel for the applicant submits that though PW-3 & PW-4 have not supported the case of the prosecution and that there are some minor contradictions and discrepancies in the statement of the prosecution witnesses, it cannot be said that the charges levelled against the applicant is not proved.

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On perusal of the evidence of the prosecution witnesses it would be clear that PW-2 in his deposition states that on the very next day of the incident i.e. on 29.11.2000 the complainant had told him that in the nearby locality, he found a bicycle similar to his stolen bicycle kept in the house and thereafter they had gone to the Police Authorities and after lodging a report, the Police accoinpanied them and the said bicycle was seized from the house of the applicant. On the conti-ary, fhe deposition of PW-4 shows that on 29.11.2000, while the Police Authorities were patrolling, they received certain information from the secret informer and on the basis of the said information they could lay hand on the applicant and recover the stolen bicycle from him. This discrepancy in the statement of these two witnesses itself brings great element of doubt in the mind of the Court to believe the case of the prosecution. From the statement of PW-2 it also reflects that the applicant as well as the bicycle was seized and recovered at the instance of PW-2. Further PW-2 says that the cycle which was recovered was not parked inside the house of the present applicant but the same was parked outside the

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house and that both complainant as well as PW-2 have made a categorical statement that they have not seen the applicant committing the theft of the bicycle.

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Considering the said deposition of the complainant and PW-2 it cannot be said that only because the bicycle was parked outside the house of the applicant, it means that the applicant had stolen the cycle. It could also be a case that somebody else might have parked the cycle in front of the house of the applicant and the applicant might have got falsely implicated in the case. This fact also creates a great element of doubt in favour of the applicant accused.

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11, Taking into consideration the rival contentions put forth by the counsel appearing for either side and on perusal of the records and also considering the discrepancies in the deposition of the prosecution witnesses it can be safely held that the prosecution has not been able to establish its case beyond all reasonable doubt for convicting the applicant for the offence punishable under Section 379 of IPC. The prosecution has failed to lead any evidence to show that it was the applicant himself who has committed the offence of theft of the bicycle. From the prosecution story it appears that the applicant has been made an accused only on account of the fact that the cycle was parked and recovered from front of the house of the applicant which by itself cannot lead us for drawing a conclusion that the applicant might have committed a theft. Further, there is also discrepancies in respect of the recovery, as the statement of PW2 as well as PW-4 depicts an entirely different picture of recovery

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of bicycle and arrest of the applicant. In addition, the two other independent witnesses i.e. PW-3 and PW-5 have also not supported the prosecution case and have turned hostile. 12. For the foregoing reasons, this Court is of the opinion that in the light of the aforesaid discrepancies and the shortcomings in the prosecution story, the applicant is entitled to be given the benefit of doubt.

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13, Consequently, the instant criminal revision is allowed. Impugned judgment dated 08.06.2004 is hereby set aside and the applicant is acquitted of the charge levelled against him. The applicant is on bail, his bail bonds shall continue for a period of SIK months from today in view of Section 437-A of Cr.P.C.

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Sd/P. Sam Koshy Judge

Ashok @ Mirchi Tiwari v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ashok @ Mirchi Tiwari v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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