HIGH COURT OF CaiHATriSGARH.BILASPOR Divlsion Bench:Hon'ble Shri DUlp Raosaheb Deshaaukli 88 Hon'ble Shri Raieshwar Lal Jhaawar, JJ. Criminal Appeal No. 853/1991 APPELLANT State of Madhya Pradesh (now Stete of Chhatdsgarh) Versus RE8PONDBNTS Mohaa Singh and others Judement for consItlCTaUon Sd/- R.L. Jhanwar Judge Hon'ble Shri DIUpRaosahebJQexhmnfrh. .1- Sd/- DiUp Raosaheb Deshmukh Judge Post for pronounceiacnt ofjudginent on W .2.2009 S,d/- JITOGB _Li/?/2009 HIGH COURT OF CHHATTISGARH.BILASPUR Division Bench: Hon'ble Shri Dilip Raosaheb Deshniukh & Hon'ble Shri Raieshwar Lal Jhanwar, JJ. Criminal Aooeal No. 853/1991 Annellant State of Madhya Pradesh (now Chhattisgarh) Respondents 1. 2. 3. 4. Versus Mohan Singh, aged 35 years, S/o Gendi Singh Gond, Occupation- Service, R/o Rampur, P.S.: Jainagar, Presently residing at: Katharpara Podi Himrnat Singh, aged 35 years, S/o Khadag Singh Nepali, Occupation - Agriculture Shiva @ Shivnarayan, aged 24 years , S/o Bhabit Ram Rajwode Khumbhkaran, aged 22 years, S/o Nohar Sai Rajwade respondents No. 3 8s 4 both" are R/o Ganeshpur, P.8.- Lakhanpur, Presently residing at- Katharpara Podi. Sawango (wrongly mentioned as Sankago), aged 32 years, W/o Mohan Singh Gond Smt. Koushlya, aged 25 years, W/o Devsharan Gond Smt. Devkuwanr, aged 25 years, W/o Devsharan Gond Respondents No. 5 6 7 are House Wives. Devsharan, aged 29 years, S/o Lakshman Singh Gond, Occupation- Service Dhiran @ Dhishu, aged 24 years, S/o Sukhram Gond, Occu.-Agriculture, All R/o- Village Katharpara, Chitajhor, Podi, P.S.-Chirmiri, Tah. Manendragarh, District Koria Presence- Shri N. Naha Roy, Panel Lawyer for the State/appellant. Shri N.P. Koshta, Advocate appears on behalf of Shri Vishnu Koshta, Advocate for the respondents. 5. 6. 7. 8. 9. v<'/ ^s^" ".•"•<- f'^S^ "-s, g ^.'•i &< ^s&ss^ i^ / i ^/ JUDGMENT (Delivered on 'fo /8/2009) Per Ra.ieshwar Lal Jhanwar, J. 1. This crirainal appeal is directed against the order of acquittal dated 23rd May 1989, passed in S.T. No. 171/86, whereby the leamed Additional Sessions Judge, Manendragarh has acquitted the respondents under Sections 302 8s 148 read with ^Section 149 ofthe IPC. 2. Case of the prosecution, in brief is that on 26.3.1986 villagers were celebrating Holy festival. At around 2:00 pm. deceased Chandrabhan Singh was sitting in the house of Durga, his neighbour, where family inembers of Durga were also present. He heard some filthy noise coming from the house of respondent-Mohan Singh. Hearing the same he went there and asked persons present there not to use filthy language. Respondent Dhiran Singh, who was present there annoyed and said him "who are you to interfere". Thereafter, a quarrel erupted. All respondents present there started beadng Chandrabhan with stick 85 club. Sonkunwar, mother of Chandrabhan came there and attempted to save her son, but all respondents did not stop beating him, on the other hand they also beat Sonkunwar. Both Chandrabhan 8s Sonkunwar sustained injuries and succumbed to death. Rambai (P.W.3), Pooran Singh (P.W.4), Nanhi (P.W.5), Shankar Singh (P.W.6), Durga (P.W.ll) & Rajaram (P.W.12) witnessed the incident. / g '^ s / Rambai (P.W.3) reported the matter to the police. Dehati nalisi 0/86 was recorded and on the basis of dehati nalisi, the FIR bearing Crime No. 122/86 (Ex.P-7) was registered at Police Station-Chirmiri. The dead bodies of Chandrabhan & Sonkunwar were sent for autopsy. Matter was investigated. Statements of witnesses under Section 161 of Cr.P.C. were recorded by the police SE formal seizures were also made by them. 3. After corapleting the investigation, charge sheet was filed before ••the Court of Judicial Magistrate Pirst Class, Manendragarh, who, in turn, committed the case to the Court of Sessions, Sarguja. The learned Sessions Judge, Sarguja made over the case to learned Additional Sessions Judge, Manendragarh for trial. Charge under Sections 148 & 302 read with Section 149 of the IPC was framed against them, they abjured the guilt and their defence was that they have been falsely implicated. 4. The learned trial Court disbelieved the evidence of eyewitness and was of the opinion that the incident was a result of free- fight and the death of Chandrabhan SE Sonkunwar was not the result of respondents' assault. Further, held that prosecution failed to prove charges against the respondents beyond doubt, therefore, passed order of acquittal in favour of the respondents. r-^\ p/ 5. We have heard learned counsel for both the parties and perused the record of the trial Court. 6. Dr. R. R. Gajbhiye (P.W.10) in his evidence has stated that he conducted postmortem of deceased Sonkunwar 85 Chandrabhan and found injuries as given below- •^ Deceased-Sonkunwar 1. Incised injuiy in the right side of temporal bone- size 2 x '/4 x V4 inch 2. Lacerated injuiy on the right side of solder- size- 2 x l/a x 14 inch 3. Lacerated injury on the upper side of right eye size 1 x Y4 x 1/4 inch 4. Swelling on the left side of head size- 2x2 inch with ecohyniosis and found fracture in bone. 5. Fracture of 4th & 5th rib of right side of chest. He opined that the cause of death was hemorrhage and shock and the death is homicidal in nature. Deceased-Chandrabhan 1. Incised injury on the skull- size 5 x 34 x 3/4 inch and also fracture 2. Practure of right side of Mandible Bone and swelling on it. 3. Fracture on the right index finger. Dr. R.R.Gajbhiye (PW-10) in his statement has deposed that the nature of death of Chandrabhan was horaicidal in nature. 7. He also examined respondents Mohan Singh SE Himmat ~^ Singh and found injuries as given below- Iniured- Mohan Singh (Respondent) 1. One lacerated wound - size 1 x 1A x V* on the middle part of his forzhead. 2. Pain and swelling on left side of thigh. /• .KS'-'-S3^ "s% ''a, @1 j •a s ff K^sy ''''39"1!te~3-'^^i 3. Pain on left hand. 4. Pain on right leg. Injured- Hiinniat Sineh (Respondent) One lacerated wound- size 1 x. Va xVs on the back side of his head with pain on neck 8s shoulder. Contusion on left leg. 8. Froxn his evidence it is clear that incised injuries inflicted on Chandrabhan & Sonkunwar were caused by sharp weapon and not by stone, genda & lathi seized and produced before the ^Court. 9. It is clear from the evidence of Rambai (P.W.3) Pooran Singh (P.W.4), Nanhi (P.W.5), Shankar (P.W.6), Durga (P.W.ll) that the respondents were not armed with any sharp weapon. No sharp weapon has been seized from the respondents. From the statement of Dr. R.R. Gajbhiye (P.W.10) it is clear that one incised wound on the right side of head of Sonkunwar and one incised wound on the upper side of skull having fracture was found on the body of Chandrabhan. There is no evidence to show that how incised injuries were received by Chandrabhan and Sonkunwar. 10. According to Rambai (PW-3) 66 Shankar (P.W.6), respondents have assaulted Chandrabhan with lathi. According to P.W-5 Nanhi, respondents assaulted Chandrabhan with hands & fists. Durga Singh (P.W.ll) in his examination-in-chief stated that '•all respondents assaulted Chandrabhan by lathi, but in his -—•^^^ ^•^^, ~ flt%fe 1^1 cross examination he totally denied this fact and stated that he did not witness the incident. From the above, it is clear that these witnesses said to be eyewitnesses produced by the prosecution have deposed contradictory statements. 11. Rambai (P.W.-3) 65 Nanhi (P.W.5) have stated that they did not see as to how Sonkunwar sustained injuries. Pooran Singh (P.W.4) 8s Shankar Singh (P.W.6) have deposed that Sawango Bai (P.W.5) assaulted Sonkunwar Bai with heayy stone, but they oniitted to state the said fact in their statements under Section 161 of Cr.P.C. recorded by the police. Oinission being on material point, so their statements cannot be accepted to be true. 12. Manmohan Singh (PW.l) in his statement has deposed that Kumbhkaran, Dhiran, Devsharnan 85 Mohan were not present on the spot. According to Rambai (P.W.-3) all respondents were present on the spot and all of them were beating Chandrabhan with lathi & danda. Pooran Singh (P.W.4) stated that all accused persons were beating his brother Chandrabhan, but 'again he stated that only Mohan Devshasrn, Himraat and Shivnarayan were beating his brother. He did not say that respondents Sawango Bai, Koushlya SE Devkunwar also took part in the assault or in any way assaulted the deceased persons. 13. In cases where witatesses are not fully reliable, it is the duty of the prosecudon to satisfy how the accused persons received injuries in the incident. 14. As per the statement of Dr. R.R. Gajbhiye (P.W-10) cause of death of Chandrabhan was incised wound found on his head and cause of death of Sonkunwar was shock and hemorrhage as a result of all the injures including incised wound found on her head, but there is no evidence to suggest how both the deceased persons received incised injuries on their head caused by sharp weapon. Even there is no evidence that any of the respondents was armed with any sharp weapon or any of them inflicted injures on both the deceased person with any sharp weapon. So far as eyewitaiesses produced by the prosecution are concerned they did not implicate lady respondents i.e. Sawango -'Bai, Koushlya Bai SE Devkunwar. Their statements are contradictoiy to each other and even stateraents of some of the witness are contradictoiy to statements recorded by the police under Section 161 of Cr.P.C. As discussed above, evidence adduced by the prosecution is discrepant in nature and from that evidence it cannot be inferred beyond doubt that respondent or any of them caused death of Chandrabhan and his mother. So far as argument relating to free fight and self defence of person and property is concerned there is no material to substantiate the same. ^ 's&,.- 'fe... ^ <p ~y~\ ^ . 15. We are of the considered view that neither the eyewitnesses produced by the prosecution are reliable nor there is any substantial material on which the respondents could have been convicted. 16. From the law laid down by Hon'ble Apex Court rendering judgment in 2003 AIR SCW 5713 fState ofHaruana and another Vs. Suba Sinahl 2005 AIR SCW 975 lAwdhva Smgh Vs^State^ of Bihar and others). AIR 1974 SC 1936 {Hallu and others Vs. State of Madhva Pradesh, & AIR_1983_SC^08 [Babu_and others Vs. State of Uttar Pradesh), Hon'ble the Apex Court has settled that if two views are reasonable possible on the basis of evidence and the finding recorded by trial Court is not unreasonable or finding of the trial Court is not perverse, the view in favour of the accused should be accepted and High Court should not interfere with the order of acquittal . 17. In criminal jurisprudence presumption of innocence is always in favour of the accused until a Competent Court after due scrutiny of the evidence find the accused guilty for commission of the offence. When a Competent Court after due appreciation of the evidence acquitted the accused, in such case innocence in favour of the accused received a confirmation of innocence from a Competent Court, therefore, in such circumstance unless view taken by the lower Court is peryerse x' ;^f^ ^s- Sinha or not possible, Appellate Court lacks jurisdiction to interfere in the order of acquittal passed by a Competent Court. 18. From the above discussions and going through the coinplete material available on record, we are of the considered view that trial Court has passed the order of acquittal after giving appropriate reasons and those reasons are not perverse. Eyewitnesses produced by the prosecution are not credible and on their contradictory unreliable statements no conviction could have been passed. View taken by the trial Court is neither unreasonable nor perverse. Therefore, the view taken by the trial Court deserves to be accepted and no interference is called for. 19. Thus we are of the considered view that the learned Additional Sessions Judge on appreciation of evidence has rightly held that prosecudon has failed to establish the guilt under Sections 302 8s Section 148 read with Section 149 of the IPC against the respondents beyond reasonable doubt. 20. In the result, the appeal is without merit. It is liable to be and is accordingly dismissed. ——- --- ~ --- Sd/- R.L. Jhanwar Judge Per Dilip Raosaheb Deshmukh, J.: Concurring with the view taken by my esteemed brother Judge in paragraphs 19 and 20, I think it appropriate to put on !\ ^. s i-, ^" 10 record the effect of the inability of the prosecution to explain the injuries sustained by respondent No.l Mohan Singh and respondent No.2 Himinat Singh and the possibility expressed by the learned trial Judge that the respondents were acting in self- defence. Respondent No.l Mohan Singh was exaniined by Dr. R.R.Gajbhiye P.W.-10 on 28-3-1986. Injuries found on respondent No.l Mohan Singh find place in paragraph 7 supra. In paragraph 12, Dr. R.R.Gajbhiye P.W.-10 testified that the duration of the injury was within 24 hours. The incident had occurred on 26-3- 1986. Thus, by no sta-eteh of imagination could it be inferred that respondent No.l Mohan Singh had sustained injury in the occurrence. (2) The injury sustained by respondent No.2 Himmat Singh is also mentioned in paragraph 7 supra. Duration of this injury as narrated by Dr. R.R.Gajbhiye P.W.-10 was within 36 to 48 hours from time of exaraination on 28-3-1986. This injury was simple in nature and would in no manner be sufficient to draw an inference that the respondents were acting in self-defence while causing the death of Chandrabhan and Sonkunwar. In Chandrappa & Ors. vs. State of Karnataka, AIR 2008 SC 2323, the Supreme Court heldthat: "11. It is also well settled that the prosecution is not called upon to explain each and every injury on the person of an accused and in fhis view of the inatter the l~x ^ /f ff 11 non-explanation of an insignificant injury on the person of only one does not dislodge the prosecution story." Th~Us, the inability of the prosecution to explain the injury sustained by respondent No.l Mohan Singh and respondent No.2 Himn-iat Singh is of no avail to the defence. As regards the question whether the respondents were acting in self-defence, merely because there was a quarrel and one of the respondents sustained a simple injury, that does not confer a right of private defence extending to the causing of death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the respondents were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. Thus, the possibility expressed by the leamed trial Judge that the respondents were acting in self-defence is not correct. (3) The injuries sustained by Sonkunwar have been mentioned in paragraph 6 supra. Manmohan Singh P.W.-l, Rambai P.W.-3 and Nanhi P.W.-5 did not depose as to who had assaulted Sonkunwar. Pooran Singh P.W.-4 and Shankar Singh P.W.-6 brothers of deceased Chandrabhan and sons of deceased Sonkunwar deposed that respondent No.5 Sawango (wrongly mentioned as Sankago in the cause-dtle of the memo of appeal) -v\ 12 had assaulted Sonkunwar by a bolder on the head after she fell to the ground. However, Dr. R.R.Gajbhiye P.W.-10 has categorically stated in paragraph 15 that the incised injuiy on the right side of temporal bone of Sonkunwar could not have been caused by a bolder or even by the Geda produced in Court. The testimony of Rambai P.W.-3 shows that till Chandrabhan fell after assault by the respondents, Sonkunwar had not arrived at the spot. She has categorically stated that the respondents did not assault Sonkunwar in her presence. In this view of the matter, the omission in the statement recorded under Section 161 ofthe Code of Criminal Procedure of witnesses Pooran Singh P.W.-4 and Shankar Singh P.W.-6 regarding assault by respondent No.5 Sawango by a bolder on Sonkunwar after she fell assumes importance and their testimony is rendered highly doubtful. There is thus no credible evidence regarding the participation of respondent No.5 Sawango, respondent No.6 Smt. Kaushilya and respondent No.7 Smt. Devkunwar in the crime. (4) It is not disputed that all the respondents were present at the house of respondent No. 1 Mohan Singh and were celebrating the festival of Holi. Thus, their assembly was not unlawful at its inoeption. In view of the fact that there is absolutely no evidence on record to show that any of the respondents had assaulted Chandrabhan or Sonkunwar by a Tangiya and no sharp weapon was seized from any of the respondents, it also becomes highly vm9^ f, ^ff f ll), "^-^ '• ^-fc.ci^' 13 doubtful as to who caused the fatal injury on Chandrabhan and Sopkunwar. Deceased Chandrabhan and Sonkunwar and witnesses Manmohan Singh P.W.-l, Rambai P.W.-3, Nanhi P.W.-5 and Shankar Singh P.W.-6 had gone to the house of respondent No. 1 Mohan Singh while they were celebrating the festival of Holi. The fact that no sharp weapon of offence was seized from any of the respondents during investigation and there being no evidence on record to show as to who caused the fatal incised injury on Chandrabhan and Sonkunwar, it can be said that the genesis of th§occurrence has been suppressed by the prosecution. From the evidence adduced by the prosecution it is also difficult to ascertain that as to at what precise moment the lawful assembly of the respondents in the house of respondent No. 1 Mohan Singh had becorae unlawful. Appreciation of evidence in such a case is no doubt a difficult task and the learned trial Judge has, after sifting the evidence carefully rightly held that the prosecution has failed to prove the guilt of the respondents beyond reasonable doubt. The possibility that some of the respondents neither shared the common intention nor participated in the crime cannot be ruled out. Between "may be true" and "must be true" there is inevitably a long distance to traverse and the prosecution must traverse this distance by legal, reliable and unimpeachable evidence, failing which, the respondents were rightly given benefit of doubt. •" l;Tte1;.:1 14 (5) The criminal appeal, therefore, deserves to be and is accordingly dismissed. —------—----_ -———-______ Sd/- 1 Dilip Raosaheb Deshmukh Judge Gopal