w ^ HIGH COURT OF CHHATTISGARH. BILASPUR ^- CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 1453 of 1996 The State of M.P. (Now Chhattisgarh) Vs. Jugla & others JUDGMENT HON'BCE^HRI JUSTICE RAJEEV GUPTA -5 ^r For consid^ration Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice Post for Judgment :^/10/2009^ Sd/- Sunil Kumar Sinha Judge ^ ,'\ ^^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gyfita^CJ. & Hon'ble Shri Sunil KumarSinha,J^ Criminal Appeal No. 1453 of 1996 APPELLANT The State of M.P. (Now Chhattisgarh) /'" RESPONDENTS ACCUSED Versus 1. Jugla S/o Babulal Gond, Aged 50 years 2. Ramkishun S/o Jugla Gond, Aged about 30 years 3. Devsingh S/o Jugla Gond, Aged 25 years 4. Narayan Singh S/o Jugla Gond, Aged 20 years 5. Somaru S/o Nanka Gond, Aged 45 years 6. Ramchandra S/o Amarnath Gond, Aged 22 years 7. Jansingh S/o Laldu Singh Gond, Aged 20 years 8. Hirdan S/o Amarsaya Gond, Aged 23 years All residents of Mendra Road- Pondi, District- Surguja (M.P.) (Now Chhattisgarh) (Criminal Appeal under Section 378 (1) The Code ofCriminal Procedure) Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate for the appellant/State. Smt. Usha Chandrakar, Advocate for the respondents/Accused. (&d. J?' ^ Criminal Anueal No. 1453 of 1996 JUDGMENT (2-^.10.2009) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) Being aggrieved with judgment of acquittal dated 12.1.1 996 passed in Sessions Trial No. 488/93 by the Additional Sessions Judge, Manendragarh, District Surguja (C.G.), whereby, the respondents have been acquitted of the charges framed u/ss 148, 302, 302/149 & 450 IPC, the State has preferred this appeal with the leave of this Court. (2) The case of the prosecution is that on 5.3.1993 at about 8-9.00 p.m., the respondents and another accused namely Ramkumar, who died during the pendency of the sessions trial, armed with deadly weapons, participated in rioting, formed an unlawful assembly and in prosecution of the common object ofthat assembly entered into the house of Shivcharan and assaulted him, due to which, he sustained many injuries and succumbed to those injuries after sometime. (3) According to the prosecution, the incident was witnessed by Ghuriya Bai (PW-4, mother-in-law of the deceased) and Fulkunwar (PW- 5, wife of the deceased). Further case of the prosecution was that when Sunnulal (PW-1, brother-in-law of the deceased) was informed, he reached to the house of the deceased and he had a talked with the deceased and his wife, Fulkunwar (PW-4), who told him the names of the assailants and then, he reported the matter to the police station, where the First Information Report (Ex.-P/22) and the merg intimation (Ex.-P/23) were recorded. / • y' ^l% ^ 1 ^tSlfe. i| '^%; "V S ./y ^y Criminal Appeal No. 1453 of 1996 (4) The learned Sessions Judge disbelieved the testimonies of Ghuriya Bai (PW-4) and Fulkunwar (PW-5) on various grounds and acquitted the accused/respondents ofthe charges framed against them. (5) Mr. Sudhir Bajpai, tearned Dy. Govt. Advocate appearing on behalf of the appellant/State, argued that the Sessions Court erred in law in discarding the testimonies of two eye witnesses who have categoricalty proved the involvement ofthe respondents in crime in question. (6) On the other hand, Smt. Usha Chandrakar, learned counsel appearing on behalf of the accused/respondents, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Ghuriya Bai (PW-4) deposed that the respondents, armed with lathis & dandas, came to the house of the deceased and assaulted him. When they were assaulting the deceased, she ran away towards the village and started hue and cry. She admitted in the cross examination that her eye sight was weak. In night she can see things of a distance of 5 to 10 hands. She also admitted that there were no lights in their house and their mohalla. She further admitted that her son-in-law was residing separately in a portion of the house and she was residing in a different portion. At the time of incident, they were in their respective portions of the house. She further admitted in the cross examination that she can identify the accused persons in Court when she will go to them. She cannot identify them from this place (witness-box). The learned Sessions Judge observed that the witness-box is a distance of about 20 feet from 31 Criminal Appeal No. 1453 of 1996 the place of accused persons. Taking guidelines from the judgment of the Apex Court rendered in the matter of Vithal and others -Vs- State of Maharashtra. AIR 1995 SC, 2337, the learned Sessions Judge held that when the witness was unable to identify the accused persons in broad day light in the Court room from a distance of about 20 feet, then how she could identify them in the dark night in such fashion. It is for this reason, the Sessions Judge disbelieved the testimony of this witness. (9) So far as testimony of Fulkunwar (PW-5) is concerned, the learned Sessions Judge held that according to this witness, accused Jugla had forcibty possessed their land and has constructed a house on it. There was a dispute between Jugla and her family. According to the evidence of Ghuriya Bai (PW-4) many persons like Chandrabhan and Manohar were residing near their house and they have also seen the occurrence but none of them were examined by the prosecution. An explanation was called in the cross examination from Investigating Officer, C.S. Sharma (PW-9), he deposed that he did not think it proper to examine those witnesses. Apart from the above, we also find that Fulkunwar (PW-5) deposed in Para-19 of her cross examination that just after the incident Dhaniram, Pratap, Somar Sai and son of Sarpanch namely Rampyare reached to the place of occurrence. She had told the names of the accused persons to them saying that they had assaulted her husband. She also admitted in Para-21 of her cross examination that her brother-in- law, Sunnulal (PW-1), also reached to her house at about 3-4.00 a.m. At that time, her husband was alive. Her husband had told the names of the assailants to Sunnulal. She had also told the names of the assailants to Sunnulal. Sunnulal had lodged the F.1.R. (Ex.-P/22) and the merg --—^_ '<? Criminal Appeal No. 1453 of 1996 intimation (Ex.-P/23) but he did not mention the names of the assailants in the F.1.R. and in merg intimation where he only mentioned the name of Jugla accused /respondent No.1. In his Court evidence, he very clearly deposed that he was told the name of accused Jugla only. When the F.1.R. was lodged by a person, duly briefed by an eye witness, who claims to have totd the names of the accused persons to the maker of the F.I.R., the names ofthe accused persons should have been mentioned in the F.I.R. If there is omission about the names of the accused persons in the F.1.R. then either the testimony of maker of the F.1.R. becomes doubtful that he deliberately did not mention the names of the accused persons or the testimony of that eye witness is not trustworthy who claimed to have seen the occurrence and told the names of the accused persons to the maker of the F.1.R., who was none else but the brother of the deceased. This creates serious doubt on the testimony of Fulkunwar (PW-5). (10) Apex Court has said time and again 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 situation, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent andcredible. In the present case, the two eye witnesses were mother-in- law and wife of the deceased. TheSessions Judge has adopted a careful approach and has analysed the evidence of PW-5 in proper manner and has rightly disbelieved her evidence. 3' Criminal Appeal No. 1453 of 1996 (11) 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 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. (12) It was further held by the Apex Court in the matter of V.N. Ratheesh -Vs.- State of Kerala, AIR 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 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 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 considerationof 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 .f:--4." ''\ ./?'mi '' (^, ? ^'t- p' (^ •\*->. •i^-':- ^^8^^^" Criminal Appeal No. 1453 of 1996 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 accuse^ really committed any offence or not. The Apex Court referred to the decision rendered in the matter of Bhaawan Sinah and others -Vs.- State of Madhva 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 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 compelling reason for interference. (13) 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 compelting 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. (14) We do not find any force in the State appeal. The appeal is liable to be dismissed and is hereby dismissed. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge vattl