'1£"L j 1 SfEi' i \^ ^'r\\^' ^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: H^n'ble^Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 675 of 1989 State of Madhya Pradesh (Now Chhattisgarh) Vs. Milan & others JUDGMENT For consideFatio_n. Sd/- Suni! Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^^T^-^ CJ ^tfEtfqa Sd/- Chief Justice ;X7/01/2010 / Post for Judgment :'2.^01/2010 Sdl- — 1 Sunil Kumar Sinha Judge ^J- /U T/^U 1 O :~^ M HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil KumarSinha, J. APPELLANT RESPONDENTS Criminal-Appeal No. 675 of 1989 State of Madhya Pradesh (Now Chhattisgarh) Versus 1. Milan son of Pusau Nai, aged 22 years (Dead- Name deleted as per C.O. dated 18.01.2010) 2. Sukhiram son of Sewaram Kurmi, aged 45 years 3. Arjun son of Manikram Lohar, aged 20 years 4. Bhagirathi son of Sukhiram Kurmi, aged 22 years 5. Dueejram son of Nanduram Kurmi, aged 35 years 6. Mitthulal son of Dayaram Sahu, aged 40 years 7. Ramswaroop son of Deolal Kurmi, aged 45 years (Dead- Name deleted as per C.O. dated 18.01.2010) 8. Sonu son Hiraram Kurmi, aged 40 years 9. Dilharan son of Parasram Sahu, aged 20 years 10. Munna alias Devikumar son of Gorelal Brahmin, aged 20 years 11. Gourishankar S/o Gorelal Brahmin, aged 29 years 12. Bhagwat S/o Bhukhan Singh Thakur alias Bedsingh, aged 55 years 13. Paltooram S/o Gayaram Kurmi aged 55 years (Dead- Name deleted as per C.O. dated 18.01.2010) 14. Ghasiram @ Ghasiya S/o Gayaram Sahu,aged 34 years ...'^ Criminal Aopeal No. 675 of 1989 15. Kashiram son of Guharam Sahu, aged 30 years 16. Shatrughan S/o Paltooram Kurmi, aged 35 years 17. Sukhdeo S/o Deolal Kurmi, aged 33 years 18. Patiram S/o Tusiram Gond, aged 34 years 19. Janaklal S/o Gajanand Brahmin, aged 34 years- (Dead- Name deleted as per C.O. dated 18.01.2010) All residents of village Teliyapuran, Police Station- Lalpur, Tahsil- Lormi, District- Bilaspur (M.P.) (Now C.G.) (Criminal Appeal under Section 378 (I) of The Code of Criminal Procedure) Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate, for the appellanfState. Mr. Ramakant Pandey, Advocate for the respondents. JUDGMENT (Z?'.01.2010) Following judgment of the Court was delivered by Sunil KumarSinha.J. (1) Being aggrieved with judgment of acquittal dated 6 January, 1989 passed in Sessions Trial No. 330/1987 by the Fourth Additional Judge to the Court of Sessions Judge, Bilaspur, the State has filed this appeal with the leave of the Court. The facts, briefly stated, are as under:- Two persons namely Sukhdayal and Baisakhu were murdered on 23.7.86 at about 9.00 a.m. They were allegedly assaulted by 70 accused persons on account of village rivalry. Baisakhu was the uncle of Sudkdayal. Out of 70, 66 accused persons faced trial before the Sessions Court, whereas, 4 accused // Criminal Appeal No. 675 of 1989 ta persons were sent to Juvenile Court. The persons facing trial before the Sessions Court were charged u/ss 147, 148, 302/149 & 323, 323 & 302/149 IPC. Apart from commission of murder of two deceased persons, they were charged for causing simple injuries to Bhagwatibai (PW-5) & Chandabai (PW-6). Out of 66 accused persons, one died during the pendency of the trial and after completion of the prosecution evidence, out of 65 accused persons, 46 accused persons were acquitted of the above charges for want of any evidence u/s 232 of the Code of Criminal Procedure vide order dated 28.11.1988. Thereafter the matter was proceeded for the remaining 19 accused persons and ultimately, they were also acquitted by the impugned judgment dated 6.1.1989 which is under challenged in this appeal. According to the prosecution a mob of above 70 persons, armed with deadly weapons, came at the scene of occurrence and attacked over the deceased persons. They had also assaulted Samundabai (PW-4), Bhagwatibai (PW-5) and Chandabai (PW-6). Bhagwatibai (PW-5) and Samundabai (PW-4) are the daughter and wife of the deceased Baisakhu, whereas Chandabai (PW-6) is the widow of deceased Sukhdayal. The incident was witnessed by Hirderam (PW-1) who is the son of deceased Baisakhu. Hirderam (PW-1) lodged the First Information Report (Ex.-P/1). He mentioned the names of few accused persons in the F.1. R. He also mentioned the names of Nagaria, Bedu, Purru and daughter of Sukhiram (Nandkumari) as the eye-witnesses. Thus, according to Hirderam (PW-1), there were 4 eye-witnesses named in the F.I.R. and apart from the above, the incident was also witnessed by Hirderam himself and 3 injured witnesses namely Samundabai (PW-4), / Bhagwatibai (PW-5) and Chandabai (PW-6). The prosecution did not examine the above ^witnesses named in the F.1. R. Another independent eye-witness namely Dhanbai (PW-2) turned hostile. Therefore, the remaining 4 eye-witnesses who were the son, daughter and widows of the deceased persons were examined. >ii.,i:r- j ""558SL^ '?^.!g: -a< •B'nas'i Criminal Appeal No. 675 of 1989 '^. The learned Sessions Court, discarded the testimonies of these witnesses on various counts. It held that they had not seen the occurrence. Therefore, respondents/accused persons were acquitted of the charges framed against them. (3) Mr. Sudhir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the State/appellant, argued that the Sessions Court erred in law in discarding the testimonies of the above witnesses. Out of the 4 eye- witnesses namely Hirderam (PW-1), Samundabai (PW-4), Bhagwatibai (PW-5) and Chandabai (PW-6), 3 were the injured eye-witnesses, therefore, the conviction could have been rest on their testimonies. (4) On the other hand, Mr. Ramakant Pandey, learned counsel appearing on behalf of the respondents, opposed these arguments and supported the judgment passed by the Sessions Court. He argued that the above 4 eye-witnesses were interested witnesses being the relatives of the deceased persons, therefore, the learned Sessions Court has rightly discarded their testimonies after due appreciation of their evidence. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) In Harbans Kaur and another -Vs- State of Haryana. 2005 AIR / SCW 2074. it was held that there is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. •,;•—!1-"-T ,^ ^;-?f/ ^ ' Criminal Appeal No. 675 of 1989 '^ (7) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Apex Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically retiable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. In Sonelal -Vs- State of M.P.. 2008 AIR SCW 7988, the Apex Court again said that merely because the eye witnesses are family members their evidence cannot be per-se discarded. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evid^npe to find outwhether it iscogent and credible. (9) Therefore, principally the testimonies of such witnesses cannot be out-rightly rejected. However, their evidence has to be scrutinized with great care and caution with a view to find out whether it is cogent and .credible. ./y' l:^l3i|k£l i«.!E Cnmmal Appeal No. 675 of 1989 (10) Hirderam (PW-1), who is the son of deceased Baisakhu, did not mention the names of all the assailants in the F.1.R. (Ex.-P/1). Even he did not mention the names of injured witnesses i.e. Samundabai (PW-4), Bhagwatibai (PW-5) anct Ch.andabai (PW-6). If, in fact, these witnesses were present at the scene of occurrence, their names should have been mentioned in the F.1.R. particularly because they allegedly sustained injures in the said incident. Hirderam (PW-1) has mentioned the names of 4 persons in the F.1.R. as eye-witnesses. If he could mention the names of those persons, why he did not mention the names of these persons. Therefore, the omission of the names of the above 3 injured eye- witnesses in the F.1.R. i.e. Samundabai,(PW-4), Bhagwatibai (PW-5) and Chandabai (PW-6) was fatal to the prosecution. (11) The prosecution did not examine the named eye-witnesses i.e. Nagaria, Bedu, Purru and daughter of Sukhiram (Nandkumari). This leads to draw adverse inference against the prosecution. These witnesses were given up by the prosecution. (12) We also note that one Dhanbai (PW-2) was examined as independent eye-witness but she has also not supported the case of the prosecution. (13) The Sessions Court has disbelieved the testimonies of Samundabai (PW-4), Bhagwatibai (PW-5) and Chandabai (PW-6) on the ground that firstly, their names were not mentioned in the F.1.R. and secondly, their 161 statements recorded on 23.7.86 appear to be concocted and they appear to be planted w/itnesses. The reason is that after'the ineident on 23.7.86, they were sent for their medical examination •y ./ Criminal Appeal No. 675 of 1989 on the same day and their statements were not recorded. They were medically examined on 24.7.86. The Sessions Court held that therefore, their statements must have been recorded after 23.7.86 and the statements shown to be recorded on 23.7.86 is highly suspicious. This is based on the evidence of .Head-Constable Madhoprasad (PW-10) who specifically stated that he has sent these witnesses for medical examination vide requisitions Ex.P/12, P/13 & P/14 and had not recorded the statements of any witness till the diary was handed over to Mr. G.R. Diwan (PW-13) at 5.15 p.m. on 23.7.86. The Sessions Couri: held that in the above facts and circumstance, it was impossible for Mr. Diwan to record the statements of these witnesses on 23.7.86 as they were not available in the village when he reached in village for investigation. Mr. Diwan has given explanation that since the injured could not be medically examined on 23.7.86, therefore, they returned to village and their statements were recorded and they were again sent to the Doctor on 24.7.86, but this explanation was not accepted by the Sessions Court as no such explanation finds place in the notings of the case diary. (14) The Sessions Court has furt:her held vide Para-13 of the impugned judgment that Dr. P. Verma (PW-11) did not find any external injury on th& person of Samundabai (PW-4) and the very few simple injuries found on per^ons of Bhagwatibai (PW-5) and Chandabai (PW-6) were -. / fresh and ofthree hours duration. These persons were examined on 24.7.86. If, in fact, injuries were inflicted at about 9.00 a.m. on 23.7.86, the Doctor would not have opined as above about their duration. Samundabai (PW-4) categorically deposed that she sustained injuries on hsr'fingers, left leg and waist and she also sustained linear contusion, Criminal Apueal No. 675 of 1989 which she had shown to the Doctor but Dr. P. Verma (PW-11) deposed that there were no external injuries on her person. (15) Apart from the above, the Sessions Court held vide Para-18 of the impugned judgment that there were many vital omissions in the evidence ofthese injured witnesses. (16) It is in these circumstances the relative witnesses have been discarded by the Sessions Court and their presence at the scene of occurrence has been doubted. The Sessions Court has held that the injuries appear to be self inflicted with a view to concoct the case. (17) Besides the above, we also notice that as many as 66 accused persons were charged before the Sessions Court and 46 of them were acquitted u/s 232 Cr.P.C. If so many persons were roped by the prosecution to face the trial on the strength of these witnesses and the prosecution could not produce any evidence against 46 ofthem, then it is difficult to hold that the story set-forth by the prosecution was true and genuine. (18) In Budh Singh 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 c^se 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 "w^ 1;'S: ,^SS5i! Criminal Appeal No. 675 of 1989 whether in arriving at a finding offact, 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. (19) It was further held by the -Apex Court in the matter of V.N. Ratheesh -Vs.- State QfJ<erala,_AlR 2006^SC 2667 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 shallnot 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 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 Apex 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 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 committed any offence or not. The Apex Court referred to the decision rendered in the matter of Bhaawan Sinah and others -Vs.-^State^LMadhya Pradesh ^2002 (2) Supreme 567). It was further held that the principle to be followed by Appellate Court considering the appeal against thejudgment ^s^ 10 Criminal Appeal No. 675 of 1989 of acquittal is to interfere only when there are compelling 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 compellijig reason for interference. (20) We have gone through the entire evidence on record with a view to find out as to whether the views ~of .Sessions Court were perverse or otherwise 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. Its not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. (21) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State against the judgment of acquittal, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Chief Justice T Sd/- Sunii Kuinar Siuha Judge :im YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.20 13:24:18 +0530