/"^(i ./ / j.A / HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 2251 of 2000 The State of Madhya Pradesh (Now State of Chhattisgarh) APPELLANT RESPONDENT Versus Naresh Yadav @ Bablu Yadav, Aged about 30 years, S/o Vishwanath, R/o Village Chhote Aunri, PS Bhilai-3, District Durg, MP (Now Chhattisgarh) (Appeal under Section 378 (1) ofThe Code of Criminal Procedure) Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate for the appellanVState. Mr. N.S. Dhurandhar, Advocate, for the respondent. JUDGIVIENT (/6.12.2009) Following judgment of the Court was delivered by Sunjl KumarSinha, J. (1) Being aggrieved with the judgment of acquittal dated 25.10.99 passed in Special Case No. 42/98 by the Special Judge, Durg under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the State has filed this appeat with the leave ofthe Court. (2) The facts, briefly stated, are as under:- The respondent/accused was charged with the offences punishable u/s 307 IPC and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The allegations were that he amputated the penis of victim- Lagindas Satnami, a boy aged about 4 years, by using a shaving- / Criminal Appeal No. 2251 of 2000 blade. The case of the prosecution was that on 20.3.98 at about 11-12 'O' clock in the day, the victim was playing with one Rameshwar (PW-7). The respondent, who was a servant in the house of the victim, came there, took the victim inside a room and amputated his penis by a shaving-blade. The victim was firstly taken to Bhilai Hospital. After the treatment, he was admitted in a private hospital of Dr. Sunil Kalda (PW-8), who performed micro- surgery and re-grafted the penis of the victim. The First Information Report (Ex.-P/1) was lodged on 22.3.98 at about 19.05 hours. A formal requisition for examination of the victim was sent by the police under Ex.-P/12 on 23.3.98 and a medical report of Dr. Sunil Kalda (PW-8) was also obtained on the same day. The other papers relating to treatment of the victim in the hospital (Ex.-P/11) were also seized. The prosecution came with a case that the victim had stated to his grand-father Jagatrarh (PW-1 ) and his father Kubernath (PW- 2) that it was the respondent who committed the said offence. Rameshwar (PW-7) also said that the respondent had taken the victim inside the room. It is on this information, the F.1.R. (Ex.-P/1) was lodged against the respondent. During the course of investigation, after taking the respondent into custody, a memorandum statement (Ex.-P/4) was also recorded on 23.3.98 u/s 27 of the Evidence Act,, based on which, a shaving-blade stained with blood tike substance was seized at the instance of the respondent on the same day under Ex.-P/S. The said article was sent for chemical examination to Forensic Science Laboratory, Raipur, from where, a report Ex.-P/10 was received. According to the F.S.L. report, blood was found on the blade but the stains were not sufficient to ascertain the origin and the group, therefore, such report could not be filed. The victim was not examined as a witness by the prosecution before the Sessions Court. The learned Sessions Judge, after examining the other witnesses produced by the prosecution, held that the prosecution Criminal Appeal No. 2251 of 2000 ^r\ *» could not prove the guilt of the respondent beyond all reasonable doubts, therefore, the respondent was acquitted of the charges framed against him, (3) Mr. Sudhir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the appellant/State, argued that on the basis of the evidence of Jagatram (PW-1), Kubernath (PW-2) and Rameshwar (PW-7), the involvement of the respondent was proved. Therefore, the Sessions Court erred in law in recording the acquittal of the respondent. (4) On the other hand, Mr. N.S. Dhurandhar, learned counsel appearing on behalf of the respondent, opposed these arguments and supported the judgment of acquittal passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) Admittedly, the prosecution did not produce the victim-Lagindas before the Sessions Court. It comes in the evidence of Jagatram (PW-1, grand-father of the victim) that the victim had stated to him that it was the respondent who did all this. It also comes in the evidence of Kubernath (PW-2, father of the victim) that his son Lagindas had told him that the respondent had caused the said injury to him. Ifthe evidence ofthese two witnesses are held reliable on the point that the victim stated before them that the respondent had caused injury to him,then it was proved that the victim was in a position to make statement. And in such situation, if the victim was not produced before the Court, an adverse inference has to be drawn against the prosecution. The prosecution has not explained at all Criminal Apoeal No. 2251 of2000 as to why the victim was not produced before the Court for examination when such serious allegations were made against the respondent. (7) Kubernath (PW-2) is the father of the victim. He deposed that on the fateful day, he was working in the field. The respondent came there and told him about the incident. Thereafter he came to the house and saw his son Lagindas in injured condition. His son was weeping. He saw injury on the penis of the victim. He stated that the respondent had caused the said injury to him. In the cross examination (Para-9), he categorically admitted that his son, victim-Lagindas, had never told the name of the respondent as the assailant. He also admitted that one of his brothers was a police constable, therefore, the report was lodged on his advice. On the basis of evidence of Kubernath (PW-2), it does not appear that the victim had stated before his father (PW-2) or grand-father (PW-1) that the injury was caused by the respondent. If the victim had stated all this to them, and he was in a position to give such statement, as we have already held, he would have been produced before the Court. (8) Rameshwar (PW-7) is a child witness. He deposed that the respondent came to their place and took the victim inside a room. When they heard hue and cries, they went inside the room and saw the injury sustained by the victim. In the cross examination in Para-6, he admitted that he had never stated to the police that respondent Naresh @ Bablu had taken victim with him. In Para-7, he very categorically deposed that he had never seen the respondent taking the victim with him. We also note that it was the respondent who went to the field to tell Kubernath (PW-2) that the above injury was received by the victim. Such conduct of /'K Criminal Appeal No. 2251 of2000 » the respondent is also relevant. If the respondent would have been the perpetrator ofthe crime, he wouldjn all probability have escaped from the place and he would not have gone to the field for telling about the incident to the father of the victim. It is on this evidence, the learned Sessions Judge has disbelieved the story of the prosecution and acquitted the respondent ofthe charged framed against him. (9) In Budh Sinah and others -Vs.- State of U.P. (2006) 9 SCC 731, the Apex Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view 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 of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into considerat'on admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. (10) It was further held by the Apex Court in V.N. Ratheesh -Vs.- State of Kerala, AIR 2006 SC 2667 that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Apex Court said that the golden thread which runs through / ^- Criminal Apceal No. 2251 of 2000 ^ the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should 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 of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Apex Court referred to the decision rendered in the matter of Bhaawan Sinah and others -Vs.- State of Madhva Pradesh (2002 (2) Supreme 567J. It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. (11) We have gone through the entire evidence on record with a view to find out as to whether the views of Sessions Court were pen/erse 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. It is not a case in which the judgment may be said to be unreasonable or a case in which vatti / !i / Criminal Appeal No. 2251 of 2000 relevant and convincing materials have been eliminated in the process of appreciation. (12) For the foregoing reasons, we do not find any substance in the appeal filed by the State. . (13) The appeal has no merit. The same is liable to be dismissed and is hereby dismissed. w Sd/- Rajeev Gupta ChiefJustice Sdf- „, Sunil Kumar Judge ^