HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. SB Hon9ble Shri Sunil Kuniar Sinha, J. ^ Criminal Appeal No. 707 of 2005 State of M.P. (Now Chhattisgarh) Vs. Gudda @ Rajesh & others JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J Sd/- Chief Justice Post for Judgment :^6/03/2010 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon^ble Sbri Sunil Kumar Sinha, J. Criminal Aooeal No. 707 of 2005 M APPELLANT RESPONDENTS ^ State of M.P. (Now Chhattisgarh) through Police Station Purani Basti, Raipur Versus 1. Gudda @ Rajesh s/o Gajadhar Singh, aged about 28 years, R/o Khokhopara, Raipur 2. Gudda @ Supant s/o Gajadhar Singh, aged about 27 years, R/o Khokhopara, Raipur, Purani Basti, 3. Upendra Singh, s/o Gajadhar Singh Thakur, aged 32 years, r/o Khokhopara, Purani Basti, Raipur 4. Laxmikant Tiwari, s/o Basant Tiwari, aged about 33 years, R/o Lakhe Nagar, Raipur 5. Nandu @ Akash Dubey, s/o Ashwani Kumar, aged 20 years, r/o Sunder Nagar, Raipur 6. Omkar Singh, s/o Chandrawali Singh, aged about 43 years, r/o Mahamai Para, Raipur 7. Radheshyam, s/o Gajadhar Singh, aged about 48 years, r/o village Tulsi Nagar, Patten Distt. Durg (C.G). 8, Amresh Shukla, son of late Bharatlal Shukla, aged about 45 years, R/o Tatyapara, P.S. Azad Chowk, Raipur. 9. Akhil Diwan, s/o Narayan Diwan, aged about 30 years, R/o Ramenpara, Raipur 10. Ramesh Singh s/o Gajadhar Singh, aged 35 years, r/o Khokhopara, Purani Basti, Raipur (C.G). Cr.A.No.707/2005 11. Shailendra Diwan, s/o Parameshwar Diwan, aged about 30 years, R/o Ramsagar Para, Dhamdheri, Distt. RaipUr Note : Respondents 2 & 7 reported to have died during the pendency of the appeal. (Criminal Appeal under Section 378 (i) of the Code of Criininal Procedure) '.•^ Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate for the appellant/ State. Ms. Morisha Chhatri, Advocate for the respondents (except respondents 2 & 7) JUDGMENT (Z4.03.2010) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J, (1) Being aggrieved with the judgment of acquittal dated 13.01.1999 passed in Sessions Trial No.227/1992 by IVth Addl. Sessions Judge, Raipur (C.G), the State has filed this appeal. (2) The facts, briefly stated, are as under: The respondents were charged u/ss 147, 148 and 302/149 IPC, alternatively 302 IPC for the commission of murder of deceased Anirudh Singh Thakur on 21.01.1991. The case ofthe prosecution is that on 21.1.1991 at about 5 p.m., the deceased was coming on his Scooter along-with Sukhnandan Sahu (P.W.6). The deceased was driving the scooter and Sukhnandan Sahu was the pillion rider. When they reached near Shastri chowk, they were stopped by two persons who came there on a motorcycle. Thereafter, the deceased was assaulted. fa Cr.A.No.707/2005 Sukhnandan Sahu (P.W.6) had witnessed the assault. The deceased was taken to the Hospital where he met with Radhe Hari Singh Thakur (P.W.ll), to whom, the deceased made oral dying declaration. He died in the hospital on 22.09.1991 at about 3.30 a.m. during the course of his treatment. A Dehati Nalishi was recorded under Ex.P.44-A. The First Information Report was registered under Ex.P.45. The inquest on the body of deceased was prepared under Ex.P. 13. The dead body of the deceased was sent for postmortem and the postmortem examination was conducted by Dr. D.C. Jain (P.W.21), who prepared his report Ex.P.41. He noticed many external injuries on the body of the deceased and on internal examination, he found that certain portions of intestines were cut at various places and the liver was also ruptured. During the course of investigation, the Station House Officer had issued a memo on 21.09.1991 (Ex.P.46) making a query as to whether the deceased was in a position to give the dying declaration, but, the Doctor gave a report that the deceased was not in a condition of giving statement. Therefore, the dying declaration ofthe deceased could not be recorded. The case of the prosecution was mainly based upon the eye-witness account of Sukhnandan Sahu (P.W. 6) and the oral dying declaration before Radhe Hari Singh Thakur (P.W. 11, brother of the deceased). The learned Sessions Judge disbelieved the testimonies of these two witnesses and acquitted all the respondents of the charges framed against them. (3) Mr. Sudhir Bajpai, learned Deputy Government Advocate, appearing on behalf of the appellant/State argued that the Sessions Court erred in law in disbelieving the testimonies of the above two witnesses namely Sukhnandan Singh (P.W.6) and Cr.A.No.707/2005 Radhe Hari Singh Thakur (P.W.ll), therefore, the judgment of acquittal vitiates. (4) On the other hand, Ms. Morisha Chattri, learned counsel appearing on behalf of the respondents (except respondents 2 & 7) opposed these arguments and supported the judgment of acquittal passed by the Sessions Court. (5) We have heard learned counsel for the parties at length and have also perused the records ofthe Sessions Case. (6) Sukhnandan Sahu (P.W.6) is the sole eye-witness of the incident. He deposed that on the fateful day he was coming alongwith the deceased on his Scooter. The deceased was driving the Scooter and he was sitting as pillion rider. When they reached near Shastri chowk, two persons came on the motorcycle from back side and they stopped their scooter. The person who was sitting as a pillion rider on the motorcycle took out something from his waist and he attacked over the deceased. Thereafter he ran away from the said place. The Sessions Court observed that this witness is talking about only two persons whereas the case of the prosecution was that the deceased was attacked by as many as 10-11 persons. (7) We also find that the charges were franied u/ss 147, 148 and 302/149 IPC, alternatively 302 IPC, therefore, the testimony of Sukhnandan Sahu (P.W.6) appears to be doubtful. P.W.6 has also been confronted with his police case diary statements and he could not explain the contradictions therein. c^ Cr.A.No.707/2005 The Sessions Court has also observed one important feature of his evidence in which, he says that when he reached to the Hospital, he saw that the deceased was crying "water" "water?\ he asked him as to who have assaulted him ? If he was an eye- witness, then in normal circumstances he would not have asked such question to the deceased. It is on these accounts, the testimony of this witness has been disbelieved. (8) Radhe Hari Singh Thakur (P.W.ll) is brother of the deceased. He deposed that he met the deceased in the Hospital and the deceased told him t^iat he has been assaulted by the accused persons, The deceased very specifically told him that he was assaulted by knife by Gudda Thakur, Deepak and Radhe Shyam. The testimony of this witness has been disbelieved by the Sessions Court on account of contents of Ex.P-46, which is an application sent by the Station House Officer to the concerned Doctor asking about the condition of the deceased for recording dying declaration, on which, the doctor made an endorsement that the deceased was not in a position to record the dying declaration. We further note from the evidence of Dr. D.C. Jain (P.W.21) that the deceased had received multiple incised wounds, which were stitched and in the internal examination, he found that certain portions of intestines were cut and were repaired and the liver was ruptured. Therefore, there was every possibility that after receiving such injuries, the deceased may not be in a position to give the dying declaration. \ Cr.A.No.707/2005 (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 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 othenvise 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 to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. (10) In V.N. Ratheesh -Vs.- State of Kerala, AIR 2006 SC 2667, the Apex Court held 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 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 ^ Cr.A.No.707/2005 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 acquittal ofthe 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 coramitted any offence or not. The Apex Court referred to the decision rendered in the matter of Bhagwan Sinah and others -Vs.- State of Madh»a Pradesh (2002 (2) Supreme 567). 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 conipelling 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) In Ramesh Babulal Doshi -Vs- State of Gujarat (1996) 9 SCC 225, the Apex Court said that "While sitting 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 appellate court answers 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 of acquittal cannot at all be W] Cr.A.No.707/2005 sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions9?. (12) We have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Court were perverse or othenvise 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 relevant and convincing niaterials have been eliminated in the process of appreciation. (13) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge Rao