State of Chhattisgarh Vs Firan Nayak

Heard on IA No. 01/2024, an application for condonation of delay occurred in filing in the instant appeal. Delay is hereby condoned. Accordingly, IA No. 01/2024 is hereby allowed and is disposed of.

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This petition has been preferred by the petitioner by being aggrieved by the judgment of acquittal dated 20.04.2023 passed in Criminal Case no. 245/2019 by the Learned Judicial Magistrate First Class, Bagicha District- Jashpur (C.G.)

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whereby acquitting the accused respondent from the charges punishable under Sections 294,506 B and 323/34 of IPC in connection with Crime no. 104/2019 registered at Police Station kansabel, District Jashpur (C.G.).

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Brief facts of the case are that:-

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On 12.08.2019 at about 9:30 PM, Chabil Nayak, Firan Nayak and Niranjan Nayak were disputing over some land property disagreement and when the complainant came to stop them with the intention of calming the situation down Firan nayak hit him on the head using the bamboo stick which Firan was holding on to, which caused the complainant a bleeding wound in his head, after that Niranjan Nayak started using abusive language towards the complainant then started punching the complainant saying “I will kill you”.

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On this basis a report was lodged by the complainant at the Police Station Kansabaik, District Jashpur C.G. bearing crime no. 104/2019 punishable under sections 294,506B and 323/34 of IPC.

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During medical examination it was found that the complainant had sustained a wound in his head of size 5x1.5x1 cm. The stick used for hitting was also examined and the doctor admitted that the injury sustained by the complainant could be caused by the Bamboo stick which was examined.

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In order to prove the case of the prosecution, the prosecution

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examined as many as 5 witnesses.

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After appreciating the evidence on record learned trial court did not believed the evidence placed on record proving the guilt of the respondent and therefore, acquitted him from the offence charged under Sections 294,506B and 323/34 of IPC.

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Learned counsel for the State contended that the order/judgment taken by the Trial Court suffers from illegality and infirmity. That the learned Trial court has erred by acquitting the respondent from the offences charged and the learned trial court is not justified by discarding the evidence of the prosecution without there being any strong reason to discard the evidences of the prosecution.

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I have heard learned counsel for the State and perused the record with utmost circumspection.

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Looking to the facts and circumstances of the case and after perusing the record it is found that the Trial Court has given ample of opportunity to the prosecution to produce the witnesses before the Trial Court. Even after giving ample of opportunities to the prosecution, prosecution has failed to produce any witness and on not producing the witness Trial Court has acquitted the accused person under Section 294, 323 read with section 34, 506 Part II of the Indian Penal Code, 1860.

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Section 242(1) ,(2) and (3) provides as under:Evidence for prosectuion- (1) If the accused refuses to plead

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or does not plead, or claims to be tried or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses: [provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.]

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(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

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(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.

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Provided that the Magistrate may permit the crossexamination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

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Prosecution is duty bound to produce the witness before the Court during trial. In the instant case, prosecution has miserably failed to produce the witnesses before the court after giving ample of opportunities. Therefore, this court is of the considered opinion that the judgment/order passed in Criminal Case no. 245/19 on 20.04.2023 by the learned Judicial Magistrate First Class, Bagicha district- Jashpur (C.G.) to acquit the accused person on the ground of non production of witness by the prosecution is appropriate and

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suffers no illegality or infirmity.

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14. Hence, this criminal miscellaneous petition is liable to be and is hereby dismissed.

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