HIGH COURT OF CHHATTjSGARH AT BILASPUR ^' .^ Sinale Bench: Hon'ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.1066 of 1996 k State of Madhya Pradesh (now State of Chhattisgarh) versus Gokul alias Kallu ^Nl JUDGMENT Postfor \4 -12-2011 Sd/- R.S. Sharma Judge .,..^<'.;3^,, ^1 'f% ] .k.J/ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1066 of 1996 Appellant Respondent versus State of Madhya Pradesh (now State of Chhattisgarh) Gokul alias Kallu, S/o Nandram Mahobia, aged 26 years, R/o Thethawar Para, Dongargarh, District Rajnandgaon (Chhattisgarh) Present: Shri Ravindra Agrawal, Panel Lawyer for the State/appellant. Shri A.D.Vaishnav, counsel for the respondent. Criminal Appeal under Section 378(1 ) of the Code of Criminal Procedure JUDGMENT (Delivered on IH December, 2011) The instant appeal preferred by the State/appellant is directed againstjudgment dated 5-12-1995 passed by the Judicial Magistrate First Class, Dongargarh in Criminal Case No.93/89, whereby the learned Judicial Magistrate First Class has acquitted accused/respondent Gokul alias Kallu of charge framed against him under Section 326 ofthe Indian Penal Code. 2. Case of the prosecution, in brief, is as under: House and shop of complainant Dwarka Prasad (PW-2) was situated at Jai Stambh Chowk, Dongargarh, near which, a hotel of Rajjan, brother of the respondent, was situated. Garbage of the hotel was oftenly thrown in front of the house of the complainant. Even on being raising objection by the complainant thereto, Rajjan '-X ^A' :^?^' H ":€:^- %^^" ^' %^^'!"^ ^-'y '^^feiS^^-"' did not stop. On the date of incident also, i.e., 22-1-1989, in the morning hours, waste-water and garbage of the hotel was thrown in front of the house of the complainant. A bitch had discharged her stool on the dumped garbage. Therefore, the complainant had asked the respondent to get the garbage removed from there and cleaned the place. The request of thecomplainant was unheard by the respondent. Ganesh Kumar Naredi (PW-3), son of the complainant also added stress to the request of the complainant and asked the respondent to get the place cleaned. On this, the respondent threw the oil boiling in a pan (Kadahi} in the hotel over Ganesh Kumar Naredi (PW-3), on account of which, right portion of the body of Ganesh Kumar Naredi (PW-3), i.e., hand, leg and abdomen etc., burnt. At that time, the complainant was also present there. Kumari Shweta Naredi (PW-1), daughter of the complainant and Durga Prasad Agrawal (PW-4) also witnessed the incident. After throwing the oil, the respondent fled from there. The complainant lodged First Information Report (Ex. P-1) in Police Station Dongargarh. The pan (Kadahi) was seized from the respondent vide Ex.P-2. Ganesh Kumar Naredi (PW-3) was sent for medical examination. Dr. Sachidanand Tiwari (PW-7) examined him and gave report vide Ex. P-3. Learned trial Court framed charge against the respondent under Section 326 IPC. After appreciation of the evidence available on record, the learned trial Court acquitted the respondent of the charge framed against him. ^ 3. Shri Ravindra Agrawal, learned Panel Lawyer appearing on behalf of the State/appellant argued that the prosecution has proved its case beyond reasonable doubt, but the learned trial Court has failed to appreciate the evidence adduced by the prosecution. Kumari Shweta Naredi (PW-1), Dwarka Prasad (PW-2), Ganesh Kumar Naredi (PW-3) and Durga Prasad Agrawal (PW-4) specifically deposed that the respondent had thrown boiling oil on Ganesh Kumar Naredi (PW-3). The learned trial Court has wrongly disbelieved the evidence of prosecution and the prosecution has proved its case by the evidence of the above witnesses. The testimonies of prosecution witnesses are wholly reliable. Looking to the circumstances of the case, the finding of the trial Court deserves to be set aside. 4. Shri A.D.Vaishnav, learned counsel appearing for the accused/respondent, supporting the impugned judgment, argued that the prosecution has failed to prove the incident of throwing of boiling oil over Ganesh Kumar Naredi (PW-3) by cogent and reliable evidence. The prosecution has utterly failed to prove its case beyond reasonable doubt, therefore, the impugned judgment does not call for any interference by this Court. 5. I have heard learned counsel for the parties at length and perused the material available on record. 6. The learned trial Court observed in paragraph 12 of the impugned judgment that it is settled legal proposition that in criminal trial it is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt. In the instant case, the learned trial Court further held that the prosecution has utterly failed to prove that the respondent threw boiling oil over Ganesh Kumar Naredi (PW-3). Looking to the circumstances of the case, it is possible that during the quarrel, the pan (Kadahi), in which the oil was boiling, would have turned over the body of Ganesh Kumar Naredi (PW-3). Therefore, it cannot be presumed that the respondent threw the boiling oil over Ganesh Kumar Naredi (PW-3) voluntarily. 7. It is settled legal proposition that in exceptional circumstances the appellate Court under compelling circumstances should reverse the judgment of acquittal of the Court below if the findings so recorded by the Court below are found to be perverse, i.e., the conclusions of the Court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage ofjustice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate Court must bear in mind the presumption of innocence of the accused and further that acquittal by the Court below bolsters the presumption of his innocence. 8. The law dealing with the judgments of acquittal is now settled. There can be no two opinions that merely because the acquittal is found to be wrong and another view can be taken, the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibility while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where the appellate Court comes to the conclusion that conviction is a must, the judgment of acquittal cannot be upset. 9. Ganesh Kumar Naredi (PW-3) deposed that the incident took place on 22-1-1989. The time was getting 8 A.M. He was present at his house. Having heard the voice of his father, he came out of the house. He heard his father saying the respondent to clean the stool and vomit discharged by a bitch in front of their shop. He also asked the respondent to clean the garbage because it was the time of opening the shop and coming of customers. The respondent refused to get the garbage cleaned and began to shout. He said the respondent that he was doing wrong and still threatening. On this, the respondent, took a big pan (Kadahi) up, which was kept in his hotel and in which oil was boiling, and threw the boiling oil over him. Right portion of his body was burnt completely due to the boiling oil. His father had reported the incident in police station. The police had taken him to the hospital. He was got admitted in the hospital and was medically examined there. He had sustained burn injuries over his right hand and right leg. He remained admitted in the hospital for 27 days. Kumari Shweta Naredi (PW-1), Dwarka Prasad (PW-2) and Durga Prasad Agrawal (PW-4) also deposed in similar fashion. 10. Kumari Shweta Naredi (PW-1), Dwarka Prasad (PW-2) and Ganesh Kumar Naredi (PW-3) deposed that Bhatti of the hotel was situated inside the hotel. Kumari Shweta Naredi (PW-1) deposed that the respondent had gone in the hotel and sprinkled boiling oil on Ganesh Kumar Naredi (PW-3). Ganesh Kumar Naredi (PW-3) deposed that the respondent went inside the hotel and took out a pan (Kadahi), in which oil was boiling, and threw the boiling oil over him. From perusal ofthe evidence of Ganesh Kumar Naredi (PW-3), it appears that the respondent had turned boiling oil over him. Had boiling oil been turned over Ganesh Kumar Naredi (PW-3), other parts of his body would also have burnt. 11. Dr.Sachidanand Tiwari (PW-7) deposed that he had examined Ganesh Kumar Naredi (PW-3) on 22-1-1989 and found that his right hand and right leg were burnt, which was a second degree burn. 12. The learned trial Court has given reason for disbelieving the prosecution witnesses in paragraph 10 of the impugned judgment. The learned trial Court reached the conclusion after due appreciation of the evidence led by the prosecution. Therefore, the conclusion given by the learned trial Court is reasonable and does not call for any interference by this Court. 13. The prosecution has utterly failed to prove the case against the accused/respondent from cogent and reliable evidence. The law dealing with the judgment of acquittal is now settled. Therefore, the acquittal recorded by the learned trial Court cannot be upset. 14. Therefore, the learned trial Court did not commit any illegality or perversity in passing the impugned judgment and acquitting the accused/respondent of the charge framed against him under Section 326 ofthe Indian Penal Code. 15. Consequently, the appeal has no force and is accordingly dismissed. The impugned judgment of acquittal is hereby affirmed. Bail bonds of the respondent are cancelled and sureties stand discharged. Gopal Sd/- R.S. Sharma Judge ^ ^-