IN THE HIGH COURT dF JllDICATURE AT BILASPUR CHHATTISGARH I @W W CRIMINAL APgEAL no. OF 2004 $ate of Chhattisgarh V§R§IIS mam’gar, aged about 5o years, Sic. Panch La $hu w / Dev Ergh, aw abom 30 years, S/a mamar Sahu Both’R/o. vmage Khaprabhat, Ponds amion Gendatoua, District Rainandgam, Chhattisgarh // A L F NT OF VE A N R SECT!0H 378l3) AND ‘ MEMO OF APPEAL UNDER SgCTlON 37§11 OF THE CODE QF CRIMINEL PROCEQURE, 1973 HIGH COURT OF CHHATTISGARH: BILASPUR Acguittal AQQeal No.1 14 of 2009 State of Chhatti‘sgarh APPELLANT: Versus RESPONDENTS: Thanwar and another POST FOR JUDGMENT ON 04% NOVEMBER, 2011 Sdl- I Prashant Kumar Nhshra \ Judge / a HIGH COURT OF CHHATTISGARH AT BILASPUR Acquittal Appeal No.1 14 of 2009 Shri D.K. Gwalre, Govt. Advocate for the State/appellant. Shri Basant Dewangan, counsel for respondent No.2. J U D G M E N T (Delivered on GLW‘November, 201 1-) Prashant Kumar Mishra, J. 1. State of Chhattisgarh has filed this acquittal appeal challenging the judgment of acquittal passed by the Special Judge, Rajnandgaon, acquitting the accused persons of the charges under Sections 294/34, 323/34 and 506-B/34 of the IPC and Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. U L3 2. As recorded in the order sheet dated 24-8—2011, respondent No.1 Thanwar has died on 25—7-2011 and as such, the present appeal against the said accused stands abated and it survives only against respondent No.2. 3. Case of the prosecution, in short, is that complainant Dhanau was returning back to his house after attending the call of nature. In the mid way, the accused persons armed with club asked him as to why he is keeping a lady namely, Khemvati in his house and creating quarrel in the village. Both the accused persons used obscene language and accused Thanwar tried to assault him by club, however, he was APPELLANT: State of Chhattisgarh Versus RESPONDENTS: Thanwar and another Present: stopped by the complainant and at that time, accused Dev Singh caught hold of his hand and Thanwar inflicted assault on his right arm. The complainant raised alarm and responding to the alarm, PW-5 Pila Das came to the place of occurrence and intervened. The complainant’s son Maneshilal and wife Chamarin Bai also reached to intervene. PW—5 Pila Das was also assaulted by Thanwar. After medically examining the complainant and completion of investigation, charge sheet was filed. . The prosecution examined in all 6 witnesses to prove the charges against the accused persons in course of trial. On appreciation of evidence and mainly considering the contradictions and omissions in the evidence of PW-3 Chamarin Bai (wife of complainant Dhanau), PW-4 Dhanau (complainant), PW-5 Pila Das and PW—6 Maneshilal (son of complainant Dhanau), the trial Court acquitted the accused persons of the charges mentioned above. //’ 5. PW-3 Chamarin Bai, wife of complainant Dhanau, has stated that when she reached to the spot, her husband had already fallen on the ground .and the accused persons had caught hold of the neck of PW—5 Pila Das. She had denied the suggestion that her husband had contested or lost the election of Panch against Gendlal, who was supported by the accused persons. However, PW—6 Maneshilal, son of the complainant, admits in his cross-examination that his father had contested and lost election of Panch against Gendlal. When this witness reached to the spot, his father was lying on the ground and the accused persons were quarrelling with Pila Das. However, Pila Das \/ ;« )\ PM a aw . has not lodged any report against the accused persons. ln the lt has been settled by the Hon’ble Supreme Court in the matters of Mohammed Ankoos and others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad {(2010) 1 Supreme Coutt Cases 94} and Babu Vs. State of Kerala {(2010) 9 Supreme Court Cases 189} that the appellate Court should not ordinarily set aside a judgment of V acquittal in a case where two views are possible, though the view of evidence of PW—3 Chamarin Bai, material exaggeration/embeliishment is found inasmuch as in her Court statement she says that the accused persons were abusing by using fllthy language, however, the said filthy language does not find mention in her case diary statement Ex.-D/1. Similar is the omission in the evidence of PW—6 Maneshilal in his Court statement and case diary statement Ex.-D/4. These material witnesses are related to each other and no independent witness has been examined in spite ofthe fact that Dhanau admits in his statement that at least 20-25 houses are situated near the pond where the incident took place. He admits that the houses of Santa, Sirij, Radhe, Ram Chandra and Ganga are situated near the pond, however, none of these persons reached to the spot though alarm was raised by Dhanau and neither any of them havev been examined by the prosecution. From the above discussion regarding statements of PW-3 Chamarin Bai and PW—6 Maneshilal, it would appear that the finding recorded by the trial Court giving benefit of doubt and consequent acquittal of the accused persons is in the realm of pure appreciation of evidence and the view taken by the trial Court is plausible view in the state of evidence on record. @ the appellate Court may be the more probable one.- It has aiso been held therein that the tindings of fact recorded by a Court can be held to be perverse if the findings have been arrived at by ignoring or exciuding relevant materiai‘ or by taking into consideration irrelevant/inadmissibie evidence. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.” 8. When the evidence in the present case is examin'ed on the touchstone of the law laid down by the Hon’ble Supreme Court in the above referred matters, this Court finds that the view taken by the trial Court is a plausible view and, therefore, even if other view is possible, the judgment of acquittal need not be set aside. U 9. ln view of the above, this Court hnds no error in the judgment of acquittal passed by the learned trial Court. The appeal is bereft of any substance, the same deserves to be and is hereby dismissed. Barve