NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved for Order on : 23.02.2024 Order Passed on : 24/05/2024 CRR No. 373 of 2016

1- Bittu @ Yogesh Das S/o Anantdas Aged About 23 Years

2- Chhotu @ Prakash S/o Anantdas Aged About 21 Years Both are R/o Ward No. 4, Near Radha Krishna Temple, Lormi, P.S. And Tahsi. Lormi, Distt. Mungeli Chhattisgarh.

3- Chhotelal S/o Mathura Yadav, Aged About 36 Years, R/o Ward No.1, Near Mahamaya Temple, Lormi, P.S. and Tahsil - Lormi, Distt. Mungeli Chhattisgarh.

---- Applicants Versus

1- State Of Chhattisgarh, through : District Magistrate Mungeli, Distt.

Mungeli Chhattisgarh.

-----Respondent For Applicants : Mr. Shubham Tripathi, Advocate For Respondent/State : Ms. Nand Kumari Kashyap, P.L.

Hon'ble Shri Justice Parth Prateem Sahu

C A V ORDER

1. Applicants have filed this revision petition challenging the legality, propriety and correctness of the impugned judgment dated 23.04.2016, passed in Criminal Appeal No.02/2012, whereby the learned Additional Sessions Judge, Mungeli, District Mungeli (C.G.) has maintained the judgment of conviction and order of sentence dated 23.12.2011, passed in Criminal Case No.38/2010, by the Court of Judicial Magistrate First Class, Lormi U/s. 323/34 and 435/34 of the I.P.C. and sentenced him to undergo R.I. for 6 month, R.I. for 9 months and fine of Rs.500/- -

Rs.1000/- respectively plus default stipulation.

2. Case of the prosecution in brief is that a written complaint was made by complainant Moolchand Banjare alleging that on 20.12.2009, in the night he visited Yuvraj restaurant in Lormi for dinner along with his friends Basant Markandey and Santosh Tiwari. After finishing their meal, they proceeded to the counter to settle the bill, where the accused presented a bill of Rs. 280/-. Complainant paid Rs.200/- and requested that he will pay rest of the amount after sometime due to which the applicants got enraged and on immediate demand of money, applicants abused the complainant and started assaulting him by hands and fists. Complainant in order to save himself, tried to ran from the spot, he saw that applicants pulled petrol pipe of his motor cycle and set it ablaze. Thereafter, applicants again caught hold of complainant and committed Marpit with him due to which he became unconscious. Based on the written report (Ex.P-2), FIR (Ex.P-3) was lodged. Victim was medically examined vide Ex.P- 5. Spot map was prepared vide Ex.P-4. Panchnama of burnt motor cycle was prepared vide Ex.P-1. Burnt motor cycle was seized from the spot vide Ex.P-6. After completion of investigation, charge-sheet was filed against applicants for commission of offence under Section 294, 323, 435, 34 of the Indian Penal Code.

3. Applicants were charged with the offence under Section 435/34, 323/34, 294 of the Indian Penal Code. They denied the charges and prayed for trial. The prosecution examined as many as 8 witnesses, to prove the charge, namely Sajid Khan (P.W.-1), Moolchand Banjare (P.W.-2), Basant Markenday (P.W.-3), SantoshTiwari (P.W.-4), Dr. R.S. Ayam (P.W.-5), Arjun Dhimar (P.W.-6), S.S. Dubey (P.W.-7), and Ganesh Kashyap (P.W.-8). Statement of applicants were recorded under Section 313 of Cr.P.C. in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. No witness was examined in defence.

4. After conclusion of trial, learned trial Court upon appreciation of documentary and oral evidence brought on record by the prosecution, convicted applicants for offence under Section 323/34 and 435/34 of the Indian Penal Code and sentenced them as mentioned above. The appeal preferred by applicants have been dismissed by the impugned judgment, affirming the conviction and sentence of the applicants.

5. It is submitted by learned counsel for the applicants that the conviction against the applicants is erroneous and without there being any cogent and clinching evidence. The prosecution has failed to prove the offence against applicants beyond all reasonable dou