HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON‘BLE SHRI RAJEEV GUPTA, C.J. & HON’BLE SHRI RANGNATH CHANDRAKAR, J. Cr.NI.P. No. 456 of 2008 Appiicant/ State of Chhattisgarh thrqugh the Appeliant District Magistrate, District Biiaspur (C.G.) VERSUS Non-applicants 1. Govind S/o Ramkumar Kaushik, Respondents aged about 28 years.’ 2. Omprakash @ Minchu S/o Satruhandas Vaishnav aged about 22 years. 3. Chovaram @ Minchu, S/o Harishchand Kaushik aged about 21 years. 4. Chandrashekhar @ Kaiicharan s/o Ramkumar Kaukshik aged about 27 years. 5. Sachin Kumar, S/o Ramkumar Kaushik aged about 35 years. 6. Ajay Kumar, S/o Puru Singh Verma aged about 34 years. 7. Rameshwar Singh, S/o Ramkumar Thakur aged about 24 years. .‘ Biharisingh, S/o Bharose Singh aged about 23 years. Lalitkumar @ Baiju S/o. Laxmiprasad Mishra aged abeut 32 years. Non-appticants no. 1 to 5 are residents of Village Bavaii, P.S. Pathariya, district Biiaspur (C.G.) Non-appiicants no. 6 to 8 are residents of Viuage Hathkera, P.S. Pathariya, district Bilaspur (C.G.) Non-applicant no.9 are residents of ViHage Sirgitti, P.S. Tarbahar, district Biiaspur (C.G.) A nlication for rant ofleave toa ealU/S 378 3 and memo 0f aggeal u/s 378 (11 of Code of Criminal Procedure 1973 Present: Shri Akhi! Mishra, learned Deputy Government Advocate, for the State/petitioner. ORDER (13“‘Jury, 2010) The following order of the Court Was passed by Rajeev Gupta, C.J. By allowing l.A. No. 02/2008, the documents filed along with this application are taken on record. 2) Shri Akhil Mishra, learned Deputy Government Advocate, is heard on LA. Nam/2008, an application for condonation of the deiay in filing the petition under Section 378(8) of Cr.P.C. 3) On due consideration of the submissions of learned Deputy Government Advocate and the grounds taken in the application, we are satisfied that the petitioner/ State has succeeded in showing sufficient cause for the delay in filing the petition under Section 378(3) of Cr.P.C. 4) l.A. No.01 of 2008, therefore, is allowed and the delay of 26 days in filing the petition under Section 378(3) of Cr.P.C. is hereby condoned. 5) Shri Akhil Mishra, Iearned Deputy Government Advocate is heard on the question of grant of teave to appeal against the acquittat ofthe respondents/ accused persons. 6) Police Pathariya, District Bilaspur, after completion of the investigation of the case registered on the report of Motilal, son of deceased Bajraha Ram charge-sheeted as many as nine accused persons, nameiy, Govind, Omprakash @ Minchu, Chovaram @ Minchu, Chandrashekhar @ Kalicharan, Sachin Kumar, Ajay Kumar, Rameshwar Singh, Biharisingh, Laiitkumar @ Baiju, for the alleged commission of the offences punishable under Sections 147/148, 302/1 49, 201, 120-B, 427, 436 and 212 of the lndian Penal Code, on the accusation of their having committed murder of deceased Bajraha Ram and setting his body and motorcycle on tire in the night of 04.03.2005. 7) The respondents/ accused persons abjured their guilt and pleaded false implication to the charges framed by the trial Court under Sections 147/1 48, 302/1 49, 201, 120-B, 427, 436 and 212 of the lndian Penal Code. \ 8) At the trial, the above charges against the respondents/ accused persons were sought to be proved on the evidence of ’ PW1 Aghania Bai, PW2 Ahilya Bai, PW3 Motilal, PW4 Devcharan, PW5 Mohitram PW6 Vijay Kaushik, PW? Salikram, PW8 Rajendra Giri, PWQ Rahu Lal Sahu, PW10 Kamlesh Sahu, PW11 Vishram Kaushik, PW12 Niranjan Kumar Sahu, PW13 Krishna Kumar, PW14 G.R. Yadav, PW15 Tejram Gandhrav, PW16 Malik Ram, PW17 Dr. A.P. Ram, PW18 Jai Prakash, PW19 Bhagwat Prasad Jangde, PW2O S.P. Bhagat and PW21 lshaque Khalko. 9) The trial Court on a close scrutiny of the entire evidence of the above—named prosecution witnesses found that the evidence of the prosecution witnesses suffered from serious infirmities. The trial Court, therefore, found it quite unsafe to act upon the evidence of the prosecution witnesses and as such, acquitted the respondents/ accused persons vide impugned judgment dated 30-04—2007. 10) Shri Akhil Mishra, learned Deputy Government Advocate vehemently argued that the trial Court has erred in discarding the evidence of PW-7 Salikram and PW-1O Kamiesh Sahu, who have categorically deposed that the accused persons committed murder of deceased Bajraha Ram. 11) First informant Motilal, son of deceased Bajraha Ram though in his First Information Report has directed suspicion against four persons, namely, Chandrashekhar, Rameshwar \7 Singh, Govind and Chovaram, in his earlier report, registered as t i Merg intimation, neither anyone was named as the assailants of his father Bajraha Ram nor any suspicion was directed against anyone, much less the four named in the First Information Report or nine respondents! accused persons. ln fact, in this Merg intimation it is categorically mentioned that some’unknown i persons have committed murder of his father Bajraha Ram. The # #in of PW? Saiikram and PW—10 Kamlesh Sahu. in the First information Report todged by Motilal, son of deceased Bajraha Ram, it is categorically mentioned that PW—10 Kamlesh Sahu accompanied Motilal to the police station for lodging the First lnformation Report. Even then, surprisingly those names which are mentioned by Kamlesh Sahu in his evidence as the assailants of deceased Bajraha Ram were not mentioned in the First information Report. There is one more reason which . creates doubt about'Kamlesh Sahu being an eyewitness is that inspite of his availability at the police station, at the time of lodging of First information Report on 05.Q3.2005, his diary statement was recorded by the Police only on 07.03.2005 ife. after three days of the alleged incident. Similarly, the evidence of other witness PW—7 Salikram also suffers from infirmity of late disclosure as he also for the first time disclosed about his being an eyewitness of the incident of murder of deceased Bajraha Ram for the first time when his diary statement was recorded by the Police after three days on 07.03.2005. 12) On due consideration of the submissions of learned Deputy Government Advocate; the findings recorded by the trial’Court leading to acquittal of the respondents/ accused persons; the evidence led by the prosecution at the trial in general and that of PW—7 Salikram and PW-10 Kamlesh Sahu in particular; and the above mentioned broad features of the case, we are satisfied that at, N the findings recorded by the trial Court leading to acquittal of the respondents! accused persons, do not suffer from any infirmity whatsoever. 13) Mere possibility of another view on the prosecution evidence will not by itself be a sufficient ground to warrant interference in an appeal against acquittal. 14) We, therefore, do not find any good ground for grant of leave to appeal against the acquittal of the respondents/ accused persons. 15) The petition filed by‘ the petitioner/ State under Section 378 (3) or or.P.c., therefore, rails and is hereby ‘ Judge t t dismissed. % it 5d}: l l Chief l R’N'Chan