HIGHCOUR^OFCHHATTISGARH.BILASPUR CORAJVI: Hon'ble Shri Raieev Gupta.C.J. & Hon'bje Shri SunilKumar Sinha, J. Acauittal Appeal No. 173 of 2010 TheStateofM.P. (NowState of Chhattisgarh) Vs. Babulal Dhobi JUDGMENT For consideration Sd/- Sunil KumarSinha Judge R /"I C! f& HON'BLE SHRI JUSTICE RAJEEV GUPTA 6 i Sd/- ChiefJustice ChiefJustice ^ /g/2010 ;/2( Post for Judgment ;J /^/2010 Sd/- i Sunil Kumar Sinha Judge -t.,7- fc : iB wl ^-7i^T^5^-l/^'£KS^ ^!gj;Sg^ES:e535EB!^!nmu~-" as^^3Ea HIGH COURT OFCHHATTISGARH.BILASPUR CORAM: Hon'bje Shri Raieey Gypta, C.J. & Hon'ble ShriSunit Kumar Sinha. J, APPELLANT RESPONDENT Acauittal Appeal No. 173 of 2010 The State of M.P. (Now State of Chhattisgarh) Through the District Magistrate Sarguja Versus Babutal Dhobi S/o Goretat Dhobi, aged 40 years, R/o Moharpura, Manendragarh, District Sarguja (Acauittal ARpeal under Section 378 (1)of The Code of Criminal Procedure.1973) /'fcs- •^./- A^Reararice: Mr. Akhil Agrawal, Panel Lawyer for the appellant/State. Mr. Sanjay Agrawal, Advocate for the respondent. JUDGMENT (5.08.2010) Fotlowing judgment of the Court was detivered by Sunit Kumar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 13 of January, 1995 passed in Sessions Triat No. 133/94 by the Additional Sessions Judge, Manendragarh, the State has fited this appeal. (2) The facts, briefly stated, are as under:- Respondent- Babulal was a gate-man in railway. The allegations are that on 2.10.93 at about 2.30 a.m., he assaulted Khabiu @ Rajkumar who received some injuries and succumbed to those injuries. On 2.10.93 at about 11-11,30 a.m. Bhanu Ghosh i^ -^^gssss-s-s-^r' ^. <4- Acquittal AppealNo. 173 of 2010 (PW-4) lodged the merg intimation (Ex.-P/3). Panchnama (Ex.-P/2) Was prepared and the dead body was sent for post-mortem examination. The post-mortem report (Ex.-P/1) reveals that the deceased received the following extemal injuries:- (i) 5 abrasions of1 x 1, 2x 1, 3x2, 2x 1 &2x2crrt. on head; (ii) abrasion of 4x 3 cm. on right cheek; (iii) bruise of 3 x 2 cm. on right ear-pinna; (iv) abrasion of4x3 cm. on right shoulder; (v) abrasion of 3 x 2 cm. on right side of chest; (vi) bruise of 8 x 1 cm. on the right side of neck; (vii) bruise of 6 x 1 cm. on teft portion of neck; (viii) 2 abrasions of 2 x 1 cm. on elbow; (ix) bruise of 4 x 2 cm. on upper left portion of chest & (x) bruise of 4 x 1 cm. on the upper inner portion of forearm. The Autopsy Surgeon opined that all the injuries were simple, ante-mortem and the cause of death was syncope due to multiple injuries. The case of the prosecution was based on eye-witnesses account of Krishna Prasad (PW-2), Uday Raj (PW-3), Mohan (PW- 6) and Munna (PW-7). None of these witness deposed that they saw the respondent assaulting the deceased. The outcome of their evidence was that they had seen that the deceased was caught by the respondent. The respondent stated them that the deceased was trying to commit theft of raiiway tine, therefore, he was caught by therespondent. The respondent raised his plea in his 313 Cr.P.C. statement that he was on duty on the railway-gate and he caught the deceased red-handed, while he was committing theft of railway property. The deceased received injuries when he fell down while running away, when he was trying to catch him. He has telephoned to the station-master in the night itself, who said that he is informing AcquittaIAppeaI No. 173 of2010 .': R.P.F. He detained the deceased in the railway gate cabin, who later on died. . Thelearned Sessions Judge held that there was no evidence to show that the deceased, in fact, was assaulted by the respondent. The deceased was caught by the respondent because he was trying to commit theft of railway property and nothing more was established against the respondent. (3) Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the appellant/State, argued that Doctor opined that the injuries sustained by the deceased cannot be caused on account of fall on the railway track, therefore, the Sessions Judge ought to have held that the injuries sustained by the deceased must have been caused by the respondent, because, the deceased was found in his custody as he had detained the deceased in the night. He submitted that the plea taken by the respondent appears to be false. (4) On the other hand, Mr. Sanjay Agrawal, learned counsel appearing on behalfofthe respondent, opposed these arguments and supported the judgment 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, there was no evidence on record to show that the respondent had assaulted the deceased in the night. According to the post-mortem report (Ex.-P/1), the injuries sustained by the deceased were small abrasions. The Sessions Judge observed that there were no corresponding internal injuries to the deceased and none of his vital ^^.:-:.:. ^^•^^:J^^^^'^^^^^ i^BB^iRaf5"' ,ri.^&!S'i3^-m?5TaStS ^ »; ^'^ ACquittal:Appeal No. 173 of 2010 organs were found damaged.The Doctor also admitted that alt the injuries were simple injuries. On all these grounds, the Sessions Judge held that the opinion of the Doctor, that the deceased died on aecount of above injuries, was not correct. The Sessions Judge held that the evidence of expert has to be scrutinized like anyother evidence and the opinion of the expert was never binding onthe Court. The Sessions Judge recorded a clear finding that there was noevidence to show that the respondent had assaulted the deceased and further that the injuries sustained by the deceased were simple injuries, therefore, it cannot be held that the death of the deceased was caused on account of the above injuries. (7) We have gone through the entire evidence available on record and we find that none of the witness deposed that they saw the respondent assaulting the deceased. According to the evidence available on record it was only proved that they saw that the respondent had detained the deceased on the chabutra of railway-gate cabin. Even the witnesses who met the deceased in the riight did not depose that they saw the injuries on the body of the deceased. Even if the deceased had sustained the above ante-mortem injuries and he died on account of those injuries while detention by the respondent near railway cabin^while he was on duty, in absence of any positive evidence in regard to assault given by the respondent to the deceased, the respondent cannot be held tiable for punishment u/s 302 IPC. (8) In Budh Sinah and others -Vs.- State of U.P. (2006) 9 SCC 731, the Supreme Court held vide para 9, that in a matter of appeat against acquittal, the High Court does not ordinarity set aside a judgment of ^ vi' K:sK iigii i f'S 1-/.:<3 Q K Kji IBK l£ai ;<' Acauittal Aticeal No. 173 of 2010 ^) 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 ofacquittal, 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 to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. (9) In V.N. Ratheesh -Vs.- State of Kerala. AIR 2006 SC 2667, the Supreme 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 Supreme Court said that the golden thread which runs through the web of administration ofjustice 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 Supreme 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 Coyrt to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to A». RE w, BRB AcquittalAppeaI No. 173 of2010 ^,, whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhaawan Sinsih and others -Vs.- State of Madhvapradesh^2g02 (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 interfereonly when there arecompelling 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. (10) In Ramesh Babulal Doshi -Vs- State of Gujarat (1996) 9 SCC 225, the Supreme 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 sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". (11) 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 otherwise unsustainable. After going through the entire evidence avaitable 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 ~3-- vatti v'- r'tew"""d c°""ncl"«m'"""^ been .,,^, ,„ ^ appreciation. proeess of !<2>. "he '°"9°'"°""°"s'w do "«"nd a"»»*.-.in ,.e ^^"vw tw the st"e' •h6nfore' "ute u-— and is hereby dismissed. Sd/- ChiefJustice _Sd/- — suailKumarSin^ Judge