HIGH COURT OF CHHATTISGARH BILASPUR N Criminal Misc. Petition No. 17 of 2008 APPELLANT Sheshdev Dubey, s/o Dubhrajdhar Dubey, aged about 52 years, Occupation Teacher, Resident of Bajkunthpur, Police Station Raigarh, Tahsil 85 District Raigarh (CG) Versus Ashok Tiwari, S/o Padman Tiwari, aged about 34 years, occupation Service Vipin Tiwari, s/o Padman Tiwari, aged about 4O years, Occupation Service. Respondents No.1 85 2 are residents of Bavali, behind Kuva Chuna Bhatti, Kotra Road, Police station, Tahsil 85 District Raigarh (CG). 3. Fakhir Dubey @ Ravishankar Dubey, s/o Mohanlal Dubey, aged about 29 years, Mohanlal Dubey, s/o Dharnidhar Dubey, aged about 70 years RESPONDENT 5. Uma Dubey, s/o Mohanlal Dubey, aged about 24 years Respondents no.3 to 5 are residents of Baikunthpur, Police station Raigarh, Tahsil 8r, District Raigarh (C.G). PETITION FOR SPECIAL LEAVE TO APPEAL U S 378 4 OF M THE CODE OF CRIMINAL PROCEDURE Appearance: Shri S.R.J. Jaiswal, counsel for the petitioner. ORAL ORDER (11.01.2008) Sunil Kumar Sinha, Jl Heard on admission. 7 I M.P No. 17‘0f 2008 ' (1) Being aggrieved with the judgment and order of acquittal dated 28th of November, 2007, passed by the Judicial Magistrate First Class, Raigarh, in Criminal Case No.457/2006, the petitioner/complainant has filed this petition u/s 378(4) of the Code of Criminal Procedure seeking leave to file an appeal against the said order of acquittal. (2) The brief facts are that on a criminal complaint, filed by the petitioner, a case u/s 147, 341/ 149 85 323/ 149 of I.P.C. was registered against the respondents. The allegations are that on 26. 10.2001 When the petitioner was returning back to his house from Ramleela Maidan, on the way, in front f house of Vijendra Dubey, the accused respondents stoped him and assaulted him with hands, fits and Danda. On the said assault, the petitioner received injuries on his teeth and lip. On intervention by one Ravi Shankar, respondents/accused persons left the petitioner. Thereafter the petitioner went to aigarh Police statio where the report was lodged and he was sent for medical examination, but on 17.12.2001 his report was filed u/s 155 Cr.P.C and he was advised to file a complaint before the competent court. It is after this the aforesaid complaint was field and registered, as a consequence of which, the accused persons were put to trial. (3) In the trial Court the petitioner/complainant Sheshdev Dubey examined himself as P.W.1 and he also examined Nrayan Prasad Dewangan as P.W.2. Ravi Shankar Dubey was examined as P.W.3 and Praveen Tiwari was examined as P.W.5. (4) The trial Court while appreciating the evidence of P.W.1 took this View in para 9 of the impugned judgment that though the complainant has stated that he was assaulted by Ashok, Vipin, Fakhir, Mohanlal and Umadevi by hands and fits as also with Danda, such kind of statement has also been given by Narayan Prasad Dewangan (P.W.2) & Ravi Shankar (P.W.3) and he has also said that he was examined by the Doctor, but this is an omnibus statement given by them and the complainant as o p R n a \_ 3 Cr.M.P No. 17 of2008 also the Witnesses have not been able to tell that in fact the complainant was assaulted by which of the accused, by which weapon, and he has also not been able to produce the injury report. The trial Court has also observed that even the Doctor who is said to have examined the complainant has not been examined in this case. The trial Court has taken this view that if a man is assaulted by a particular person, he must know that who has assaulted him but in this case, no specific allegations have been made and an omnibus statement regarding assault made by the accused persons has been given by the complainant and the witnesses. It has also been observed by the trial Court in Para-10 that Praveen Tiwari (P.W.5) has deposed that when he saw the incident, he went to the house and narrated the story to Ravi Shankar (P.W.3), on which, Ravishankar rushed to the spot. The trial court has taken this View that a reasonable time must have been consumed by Praveen Kumar (P.W.5) in going to the house and then telling the matter to Ravishankar (P.W.3) and then Ravi Shankar must have taken some time to reach the place of occurrence and it r does not appear on the basis of the evidence of complainant that the occurrence had prolonged for such a long time that Ravi Shankar (P.W.3) would have seen the occurrence. Discussing the evidence of these witnesses and also other circumstances of K the case, the trial Court has taken this View that in fact the complainant Could not prove his case and the accused persons were entitled for acquittal and they were acquitted of the r aforesaid charges. (5) In the matter of Ashok Kumar -vs- State of Rajasthan (1 991) 1 SCC 166 the Apex Court held that while caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is 7w. > L Cr.M.P No. 17 ofzoo ‘ s imperative otherwise existence of power shall be rendered meaningless. (6) In the matter of Budh Singh and others -Vs- State of U.P. (2006) 9 SCC 731, vide para 9 the Apex court held 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 of the 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 consideration admissible evidence and has taken into consideration evidence brought on record contrary t0 law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. Similar view has been taken by the Apex Court in many cases while dealing with the matters of appeal against the judgment of acquittal. (7) In the present case, after going through the judgment of the trial Court and the evidence of witnesses, produced alongwith with the judgment, it appears that the judgment is not vitiated by perversity or misreading of evidence. The trial Court has taken a View which was one of the possible views which could have been taken by a court of law. (8) I do not find any reason to interfere with the judgment of acquittal passed by the trial Court. The special leave petition filed for grant of leave to appeal fails. The same is dismissed at the motion stage itself. ~ Sdl- Sunil Kumar Sinha Judge /Rao/