Avon @ Avont Kumar Chouhan Vs State Of Chhattisgarh

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(Cr. A. No. 595 of 2017)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 595 OF 2017

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Avon @ Avont Kumar Chouhan, S/o Mordhwaj Chouhan, aged about 26 years, R/o Jobakala, Police Station Pithoura, District Mahasamund (C.G.). Present R/o Nayapara, Mahasamund, Police Station & District Mahasamund (C.G.)

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Pintu Chouhan, S/o Jagat Chouhan, aged about 26 years, R/o Near Bhau Provisional Stores, Nayapara, Mahasamund, Police Station & District Mahasamund (C.G.)

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Vikas Soni, S/o Vishwanath Soni, aged about 21 years, R/o Railway Colony, Near Mall Dhakka, Police Station & District Mahasamund (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Mahasamund, District Mahasamund (C.G.)

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... Respondent(s)

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For Appellants No.1 & 2 :- Ms. Smita Jha, Advocate. :- For Appellant No.3 Mr. Manoj Paranjpe, Advocate. :- For Respondent/State Mr. Arvind Dubey, Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (02.02.2024)

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(Cr. A. No. 595 of 2017)

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Sanjay K. Agrawal, J.

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The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ('CrPC') has been preferred by the three appellants herein against the judgment and order dated 21.3.2017 passed by Additional Sessions Judge, Fast Track Court, Mahasamund in Sessions Case No.22/2016, by which A-1 Avon and A-3 Vikas have been convicted under Sections 363, 364A & 120B of the Indian Penal Code, 1860 ('IPC') and A-2 Pintu has been convicted under Sections 363, 364A/34 & 120B of IPC and each of them has been sentenced in the following manner:-

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Conviction	Sentence
1.u/S. 363 of IPC	R.I. for 3 years and fine of Rs.500/- and in default of payment of fine, to undergo additional R.I. for 1 month.
2.A-1 Avon & A-3 Vikas u/S. 364A of IPC and A-2 Pintu u/S.364A/34 of IPC.	Life Imprisonment and fine of Rs.1000/- and in default of payment of fine, to undergo additional R.I. for 2 months.
3.u/S. 120B of IPC	R.I. for 5 years and fine of Rs.1000/- and in default of payment of fine, to undergo additional R.I. for 2 months.

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(Cr. A. No. 595 of 2017)

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Prosecution case, in brief:-

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On 2.2.2016 at about 12:25 p.m., A-1 Avon and A-2 Pintu Chouhan kidnapped the minor victim (PW-17), aged about 3½ years, from her school. Thereafter, A-1 Avon from Mobile No.7389248306 called PW-3 Vikas Nirmalkar, father of the Victim, on his Mobile No.9229664156 and demanded from him Rs.10 Lakh as ransom, failing which he would have to face dire consequences. PW-3 Vikas Nirmalkar called twice on the said Mobile No.7389248306 but it was switched off. Thereafter, F.I.R. (Exhibit P-13) was lodged by PW-3 Vikas Nirmalkar at Police Station Mahasamund. Subsequently, at about 8:00 p.m., the Victim was recovered by PW-3 Vikas Nirmalkar near his house. Her recovery panchanama was made vide Exhibit P-2. On a searched launched by the police authorities, the three appellants were apprehended on 3.2.2016 and their memorandum statements were recorded vide Exhibits P-3, P-5 & P-7 respectively.

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Pursuant to the memorandum statement of A-1 Avon, one Hero Deluxe Motorcycle bearing Registration No.CG06P-1054, one mobile of Intex company and

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(Cr. A. No. 595 of 2017)

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one SIM No.7389248306 were recovered vide Exhibit P-4. Pursuant to the memorandum statement of A-2 Pintu, one two-SIM mobile phone of Intex Company bearing IMEI No.911483000681540 and IMEI No.911483000681557 and one black-blue shirt were recovered vide Exhibit P-6. Similarly, pursuant to the memorandum statement of A-3 Vikas, one mobile handset of Maxx company bearing two SIM Nos. 9907087985 & 7879844039 and one Splendor Motorcycle bearing No.CG04DX2083 were recovered vide Exhibit P-8. Vide Exhibits P-18 & P-19, Test Identification Parade (‘TIP’) was conducted by PW-14 Rajendra Prasad Tiwari, Tahsildar, Mahasamund and proved by PW-12 Mohan Lal Dhruv, Jail Superintendent, Mahasamund, in which A-1 Avon and A-2 Pintu were identified by the Victim (PW-17). After completion of the investigation, the appellants were charge-sheeted for the aforesaid offences and the matter was put to trial before the Court below in which the appellants abjured their guilt, took a plea of false implication and entreated for trial.

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(Cr. A. No. 595 of 2017)

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During the course of the trial, in order to bring home the offence, the prosecution has examined as many as 25 witnesses and exhibited 43 documents. Articles A/1C, A/2C, A/2C, A/3C & A/4C are the copies of relevant pages of attendance register, birth certificate of the Victim, customer application form and Identity Card of Parmeshwar Nishad and the call details respectively. Statements of the accused/appellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in their defence, neither any witness has been examined nor any document has been exhibited by them.

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After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 21.3.2017, on appreciation of the oral and documentary evidence available on record, has convicted and sentenced the appellants in the manner as mentioned at the table shown in the opening paragraph of this judgment, which led to the filing of the present criminal appeal by the three appellants herein.

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(Cr. A. No. 595 of 2017)

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:Submissions of learned Counsels for parties

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Ms. Smita Jha, learned counsel appearing for A-1 Avon and A-2 Pintu, would submit that demand of ransom is one of the essential ingredient of Section 364A of IPC and which has not been satisfied in the instant case. The SIM No.7389248306 from which the ransom call is said to have been made to PW-3 Vikas Nirmalkar, as per the statement of PW-21 Krishna Sharma, Nodal Officer of Airtel Communication Company, Raipur, the said SIM was registered in the name of one Parmeshwar Nishad, as is apparent from Articles A/2C & A/3C which are customer application form and Identity Card of Parmeshwar Nishad who has not been examined by the prosecution. Therefore, demand of ransom by A-1 Avon has not been proved. Similarly, as regards A-2 Pintu Chouhan from whose memorandum statement, a two-SIM mobile phone of Intex Company bearing IMEI No.911483000681540 and IMEI No.911483000681557 is said to have been seized, no calls have been made using the said IMEI numbers also. As such, both the appellants are entitled for acquittal from the offences in question.

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(Cr. A. No. 595 of 2017)

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Mr. Manoj Paranjpe, learned counsel appearing for A-3 Vikas, would submit that the Victim has not identified A-3 Vikas in the TIP conducted and also before the Court below during recording of her statement and even from the mobile handset of Maxx company bearing IMEI No.911330656361689 and two SIM Nos. 9907087985 & 7879844039 which is said to have been recovered from the memorandum statement of A-3 Vikas, no calls have been made using the said IMEI No.911330656361689 or SIM No.7879844039 as per the statement of PW-18 Arun Kumar, Assistant Nodal Officer of Reliance Mobiles Co. Ltd., nor SIM No.9907087985 was used in the commission of the offence. As such, A-3 Vikas is also entitled acquitted from the offences charged.

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Mr. Arvind Dubey, learned Government Advocate, per contra, would submit that the prosecution has been able to prove its case beyond reasonable doubt. A-1 Avon and A-2 Pintu had kidnapped the Victim from her school and thereafter the appellants had demanded Rs.10 Lakh from her father, PW-3 Vikas Nirmalkar. As such, the appellants do not deserve for acquittal and their appeal is liable to be dismissed.

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(Cr. A. No. 595 of 2017)

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We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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All the three appellants herein, i.e., A-1 Avon, A-2 Pintu and A-3 Vikas, have been convicted for the offences punishable under Sections 363, 364A, 34 & 120B of IPC.

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For convenience sake, we would first consider and decide the appeal of A-1 Avon & A-2 Pintu and then we shall consider and decide the appeal of A-3 Vikas. :-

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Appeal of A-1 Avon and A-2 Pintu

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As regards the conviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 363 of IPC, from the court statement of the Victim (PW-17), it would reveal that she has clearly identified A-1 Avon and A-2 Pintu, who were present in the Court. According to the Victim, they had kidnapped her from the school. She has also identified them in the TIP (Exhibits P-17 & P-18) conducted by the Tahsildar (PW-14) and proved by the Jail Superintendent (PW-12). As such, A-1 Avon and A-2 Pintu have clearly been identified by the Victim (PW-17) to have

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(Cr. A. No. 595 of 2017)

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kidnapped her from her lawful guardianship and thereafter they dropped her in the evening at about 8:00 pm near her house where she was recovered by her father (PW-3). Thus, the coviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 363 of IPC is well merited and does not warrant interference. Accordingly, we hereby affirm the conviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 363 of IPC.

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Now, so far as the conviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 364A of IPC is concerned, it would be appropriate at this juncture to notice Section 364A of IPC which states as under:-

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“364A. Kidnapping for ransom, etc.─ Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or - international inter governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. ”

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(Cr. A. No. 595 of 2017)

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The Supreme Court in the matter of Neeraj Sharma v. State of Chhattisgargh with Ashwani Kumar Yadav v. State of Chhattisgarh 1 has considered the conditions which must to be met for invoking Section 364A of IPC and held in paragraphs 34 to 37 as under:-

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“34. This court in the case of Shaik Ahmed v. State of Telangana, (2021) 9 SCC 59 has held that in order to make out an offence under Section 364 A, three conditions must be met:

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A) There should be a kidnapping or abduction of a person or a person is to be kept in detention after such kidnapping or abduction;

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B) There is a threat to cause death or hurt to such a person or the accused by their conduct give rise to a reasonable apprehension that such person may be put to death or hurt

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C) Or cause death or hurt to such a person in order to compel the Government or any foreign state or intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom.

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The necessary ingredients which the prosecution must prove, beyond a reasonable doubt, before the Court are not only an act of kidnapping or abduction but thereafter the demand of ransom, coupled with the threat to life of a person who has been kidnapped or abducted, must be there. It was reiterated by this Court in the case of Ravi Dhingra v. State of Haryana, (2023) 6 SCC 76.

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1 (2024) SCC OnLine SC 13

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(Cr. A. No. 595 of 2017)

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In the present case, what the prosecution has miserably failed to establish is the demand of ransom. As per the prosecution, the complainant’s father i.e., Praneet Sharma (PW-5) received a phone call from which a demand of ransom was made. The phone call was allegedly traced as being of one Ravi Kumar Dwivedi but no evidence was placed on record to establish the demand of ransom before the Court which was absolutely necessary in view of the law laid done by this Court in Rajesh v. State of Madhya Pradesh, 2023 SCC OnLine SC 1202.

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For making out a case under Section 364-A, the first condition i.e., kidnapping or abduction must be coupled with either the second or the third condition as held by this Court in Shaik Ahmed (supra). Under the said provision, the accused is liable to be punished either by death or imprisonment for life and is also liable to be fined considering the gravity of the offence. In the present case, even if it is presumed for the sake of argument that an offence under Section 364 is made out, we do not find that the offence would come under the ambit of Section 364A. ”

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Reverting to the facts of the case, it is quite vivid that it is the case of the prosecution that A-1 Avon used SIM No.7389248306 to demand ransom of Rs.10 Lakh from PW-3 Vikas Nirmalkar, father of the Victim, and the said SIM was recovered from him vide Exhibit P-4. However, PW-17 Krishna Sharma, Nodal Officer, Airtel Communication Company, Raipur, in his statement has clearly stated that the said SIM

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(Cr. A. No. 595 of 2017)

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No.7389248306 was alloted to one Parmeshwar Nishad vide Customer Application Form (Article A/2C) which was submitted by Parmeshwar Nishad duly supported with his Identity Card (Article A/3C). The said Parmeshwar Nishad has not been examined to hold that the said SIM was given by him to A-1 Avon or A-1 Avon used the said SIM to make ransom call to PW-3 Vikas Nirmalkar. Merely because the SIM bearing No.7389248306 was recovered pursuant to the memorandum statement of A-1 Avon, he cannot be convicted for the offence punishable under Section 364A of IPC unless and until it is established that he has used the said SIM to make a demand of ransom.

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Furthermore, Parmeshwar Nishad, in whose name SIM No.7389248306 was allotted by the Airtel Company, has not been examined by the prosecution. v.

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The Supreme Court in the matter of Rajesh & Anr. State of Madhya Pradesh 2 , in like situation, has held that the mobile number from which ransom calls were made was in the name of one Bhuraji, S/o Deepu, and his address was available but the police did not attempt to contact Bhuraji or examine him to

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2 (2023) SCC OnLine SC 1202

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(Cr. A. No. 595 of 2017)

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find out how and why his SIM card was used for making the ransom calls. In that view of the matter, merely on the basis that the said SIM bearing No.7389248306 was recovered from the possession of A-1 Avon, it cannot be held that he used the said SIM and demanded Rs.10 Lakh as ransom from the father of the victim, PW-3 Vikas Nirmal.

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Similarly, pursuant to the memorandum statement of A-2 Pintu, a two-SIM mobile phone of Intex Company bearing IMEI No.911483000681540 and IMEI No. 911483000681557 was seized which is said to have been used in the commission of the offence. However, the prosecution could not bring any evidence on record to establish the fact that the said IMEI No. 911483000681540 and IMEI No.911483000681557 were in any manner used in making call to PW-3 Vikas Nirmalkar for a demand of Rs.10 Lakh as ransom. As such, there is no evidence that A-2 Pintu has demanded ransom of Rs.10 Lakh from PW-3 Vikas Nirmalkar and threatened him of dire consequences if the incident is reported by him to the police.

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(Cr. A. No. 595 of 2017)

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Thus, in view of the aforesaid discussion and in light of the decisions of the Supreme Court rendered in the matters of Neeraj Sharma & Ashwani Kumar Yadav (supra) and Rajesh & Anr. (supra), the conviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 364A of IPC is not based on the evidence available on record. Accordingly, the conviction of A-1 Avon and A-2 Pintu for the offences punishable under Sections 364A, 34 of IPC and consequently under Section 120B of IPC deserve to be and are hereby set-aside and they are acquitted of the said charges on the basis of benefit of doubt.

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:Appeal of A-3 Vikas

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So far as the conviction of A-3 Vikas for the offences in question is concerned, it is clear from the record that in the TIP and even before the Court below, A-3 Vikas has not been identified by the Victim (PW-17) and further there is no allegation against him of using SIM Nos. 9907087985 & 7879844039 for demanding ransom from PW-3 Vikas Nirmalkar, father of the Victim. Furthermore, as per the statement of PW-18 Arun Kumar, Assistant Nodal Officer of Reliance Mobiles Co. Ltd., made in para-15 of his statement,

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(Cr. A. No. 595 of 2017)

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no calls have been made using the said IMEI No.911330656361689 and SIM No.7879844039, and the said SIM No.7879844039 was registered in the name of one Ali Kamar Naqvi as is evident from Exhibit P-25. As such, there is no evidence of kidnapping against A-3 Vikas as also there is no evidence against him of making any ransom call to PW-3 Vikas Nirmalkar. In that view of the matter, the conviction of A-3 Vikas for the offences punishable under Sections 363, 364A, 120B of IPC deserves to be and is accordingly set-aside and he is acquitted of the said charges on the basis of benefit of doubt.

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Conclusion:-

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20 . Consequently, the conviction of A-1 Avon and A-2 Pintu for the offence punishable under Section 363 of IPC including the fine part and its default clause is affirmed. However, the conviction of A-1 Avon for the offences punishable under Sections 364A & 120B of IPC as well as the conviction of A-2 Pintu for the offences punishable under Sections 364A/34 & 120B of IPC are set-aside and they are acquitted of the said charges on the basis of benefit of doubt. Further, the conviction of A-3 Vikas for the offences punishable

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(Cr. A. No. 595 of 2017)

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under Sections 363, 364A, 120B of IPC is set-aside and he is also acquitted of the said charges on the basis of benefit of doubt.

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A-1 Avon and A-2 Pintu are reported to be in jail since 3.2.2016 thereby they have already completed 3 years of imprisonment awarded under Section 363 of IPC. We therefore direct that they be released from jail forthwith, if their detention is not required in connection with any other offence. A-3 Vikas is on bail since 13.9.2017. He need not surrender but his bailbonds shall remain in opertaion for a period of six months in view of the provisions contained in Section 437A of CrPC.

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In the result, the appeal of A-1 Avon and A-2 Pintu is partly allowed to the extent indicated herein-above and the appeal of A-3 Vikas is allowed.

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Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and also to the concerned Jail Superintendent for information and necessary action at the earliest.

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Sd/- Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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sharad*

Avon @ Avont Kumar Chouhan v. State Of Chhattisgarh

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Avon @ Avont Kumar Chouhan v. State Of Chhattisgarh

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