HIGH COURT OFCHHATnSGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, Cffi & Hon'ble Shn^Ainil Kumar SinhaTJ. Criminal Appeal No. 29 bf 1998 . StateofM.P. (Now State of Chhattisgarh) Vs. Dhanesh Ram JUDGMENT For consideration Sd/- Suni! KumarSinha Judge .c- HQN'BLE SHRI JUSTICERAJEEV GUPTA _9 €s^^r^-e—_ Sd/- ChiefJustice K Post for Judgment^A_ffl3/2QiQ. '<ef Sd/- "Judgr /^-/03/2010 1 .'I / ' ^sstt 'l Irt^^l if' ^- .^' /;:^>\ /i HIGH COURT OFCHHATTISGARH. BILASPUR CORAM: Hon'bleShri Raieev Gupta.C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal ARpeal No. 29 of 1998 StateofM.P. (Now State of Chhattisgarh)- Through Police Station Kurud Versus Dhanesh Ram S/o Kisun Ram, aged27 years; R/o Village Borjhara, Police Station Kurud, Tahsil Kurud, District Raipur, M.P. (NowC.G.) (Criminal Apbeal under Sectioh378(1) ofTheGode ofCriminal Procedure) Appearance: Mr.Akhil Mishra, Dy. Govt. Advocate for the appellant/State. Noneforthe respondent. JUDGMENT {/<> .03.2010) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) Being aggrievedwith thejydgmentofacquittaldated 15 ofJuly, 1997 passed in Sessions Trial No. 59/97 by the Additional Sessions Judge, Dhamtari, the State has filed this appeal. * (2) The facts, brieflystated, areas under:- Deceased- Dharmin Bai was married to respondent in the yesir 1994. She died onll.11.96 out of burn injuries to theextent 0^.95%. Theincident occurred in the house of the respondeht. The matter was reported to the concerned police chowki byTetkuram (PW-8), on which, a merg intimation (Ex.-P/6) was reeorded. TKe Investigating Officer reached to the scene of occurrehee tin 11.11.96, gave notice CEx-P/1) to the Panchas and priRai'|<^ -. inquest (Ex.-P/2) bn the body of the deceased. Tl^e deay? -;;£li •"'•ffs- 1.-^" lllll-. ^fl^ lisux^s aiir' •i^l.'^l :]l -Bft; iSKSiil ;a-i •ffils ^. Criminal Appeal No. 29 of 1998 the deceased was sent for post-mortem to Government 1-tospital, Dhamtari under Ex.-P/3, where the post-mortem examination was conducted by a team of two Doctors namely- Dr. A. Kadir (PW-7) and Dr.(Smt.) Asha Tripathi, who gave their report Ex.-P/5. They opined that the cause of death was syncope and shock due to burns. Accordihg to the prosecution, the statements of various witnesses including ttie parents of the deceased were recorded on 11.11.96 in merg case diary. They did not giveadversestatements at that point of time. However on 16.11.96 their subsequent statements were again re'corded, in which, Sukhdeo(PW-1 -father of the deceased) and Dhanbai (PW-2 - mother of the deceased) made allegations against the respondent that he used to treat the deceased with cruelty and he was also demanding money for opening a shop and purchasing a bullock-cart. Resporident was charged u/s 304-Bin alternative 306 IPC. The sfatements recorded during the course ofinvestigation of merg, were not produced before the Sessions Courtalong with the charge-sheet. The learned Sessions Court acquitted the respondent holding that the prosecution could not establish that it was a case of dowry death or the deceased committed suicide on account of abetment by the respondent. (3) Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the appellanVState, argued that the Sessions Court erred in law in disbelieving the testimonies of Sukhdeo (PW-1) and Dhanbai (PW-2), fherefore, the.judgment of acquittal vitiates. (4).; We have heard the learned counsel for the appellant/State at length and have'also perused the records ofthe sessions case. ..--'"'"" ;t: fc.«.'l -^ Criminal ADcealNo. 29 of 1998 IM t. (5) The Sessions Court has recorded a finding vide Para-9 of the judgnnent that the death of the deceased was not accidental and thereafter it has appreciated the evidence of the prosecution witnesses and has held that the prosecution could not prove the above charges against the respondent. (6) The Sessions Court djd not believe the testimonies of Sukhdeo (PW-1) and Dhanbai (PW-2) on the ground that they did not make any allegation againstthe respondent on 11.11.96 when their first statements were recorded by the police during the course of investigation of merg. We find that Sukhdeo (PW-1)was a party to the inquest proceedings. According to Dhanbai (PW-2), she was also present at the time of inquest andthey had metwith the police. (7) Sub-lnspector, D.P. Sharma (PW-10) is the Investigating Officer. He conducted the investigation of merg. He deposed that after receiving information from Tetkuram (PW-8), he had recordedthe merg intimation (Ex.-P/6) in Chowki Bhakhara and thereafter proceeded t6 the scene of ocGurrenceand has conducted the proceedings of inquest. Though, he deposed in his examination-in-chief that he had recorded the statements of Ku. Gayatri (PW-6), Dashrath and Tetkuram (PW-8) on 11.11.96 and had recorded the statements ofVishnuram on 12.11.96 and statements of Sukhdeo (PW-1), Dhanbai (PW-2), Bhuneshwari (PW-4), Devehdra Kumar and Asruram (PW-3) were recorded on 16.11.96, hut in the cross- examination, vide Para-6, he clearly admitted that onll.11.96, he had^ reeorded the statements of Sukhdeo (PW-1), Dhanbai (PW-2);arf^ Asruram (PW-3). He further admitted in Para-7 that the statement&W -,./1' a; ^%Misa^a^8S®U(U11'inir' ^ Crimmal Aupeal No. 29 of 1998 these witnesses, recorded by him on 11.11.96, have not been filedalong with the charge-sheet and those statements must be lying in the diary of merg. (8) On the above evidence, in appreciation, the Sessions Court held that the matter was given a different turn by the parents of the deceased oh 16.11.96 when their second statements were recorded by the police. Sukhdeo (PW-1) further admitted in the cross-examination vide Para-10 that a typed report was given by him to the Station House Officer of Police StationKurud on 13.11.96. But,we do not find any suchreport in the documents produced by the prosecution. (9) It is in these circumstances, the Sessions Court did not believe the testimonies ofthese witnesses and has acquitted the respondent. (10) In Budh Sinahand others -Vs.- StateofU.P. (2006)9SCC731, the Apex Court held vide para 9, that in a matter of appeal against acquittal, the High Courtdoes notordinarily set aside a judgment of aequittal in a case where twoviews ai;e possible, although theview ofthe Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views ofthe trial Courtwere perverse or otherwise unsustainable. It is also entitled to consider as to whether jn arriving at a finding offact, the trial Court has failed to taKe into consideration admissible evidence and has taken into consideration evidence broyght^on record contrary to law. Similarly, wrong placing of burden of proof mayalso be a subject matter oftlTescrutiriypftl'ie. Appellate Court. ••^' . - . II ..-[" A Criminal Aooeal No. 29 of 1998 (11} In V.N. Ratheesh-Vs.- State of Kerala.AIR2006SC 2667 the Apex Court held that there is no embargo onthe Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order ofacquittal shall not be interfered with because the presumption of innocencfiof the accused is further strehgthened by acquittal. The Apex Courtsaid that the golden thread which runs through the web of administration of ju^tice in criminal cases is that if two views are possible on theevidence adduced in the case.one pointihg to the guilt of the accused and other to his innocence, the view which is favourable to the accusedshould be adopted. The Apex Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage ofjustice which may arise from aGquittal of the guilt is no less than from the cohviction of an innocent. In a Gase where admissible, evidence is ignored, a duty is cast upon the Appellate Courtto re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertainihg as to whetheT ahy of the accused really committed any offehce or not. The Apex Court referred to the decision rendered in the matter of BhafiWan Sinah and others -Vs.- State of Madhva Pradesh f2002 (2) Suijreme 567). It was further held that the principle to be followed by Appellate Court considering the appealagainst the judgment of aGquittal is to interfere only when there arecompelling andsubstantial reasons for doingso. Ifthe impugnedjudgmentis cleariy unreasonable and relevant and convincing materials have been unjustifiably eliminated in th^ process, it is a compelling reason for interference. ^ B; Y^- • • .. ""& :t -; ... S.A '-•':.^.'•^!("''w '<-&»'' vatli Criminal Aoueal No. 29 of 1998 (12) In Ramesh Babulal Doshi -Vs- State of Guiarat (1996} 9 SCC 225, the Apex Courtsaid that "Whilesitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appeUate court ahswers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order ofacquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evjdence to arrive at its own conclusions". (13) We have gone through the entire evidence on record with a view to find out as fo whether the views of the Sessions Courtwere perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal. Its not a case in which thejudgment may be said to be unreasonableora case in which relevant and convincing materials have been eliminated in fhe process of appreciatiort. (14) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed bythe State, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Chief Justice Sd/- Sunii Kuniar Sinha Judge ":ii:^ :-;1"-'-SH •'i Hl