;^ ^z HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon>ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1736 of 2000 .^: The State of Madhya Pradesh (Now Chhattisgarh) Vs. Emil & Others JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEEV GUPTA 3 <^?L^r<2^- Sd7- Chief Justice Post for Judgment : 4. /03/2010 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. SB Hpn^ble Shri Sunil Kumar Sinha, J. APPELLANT Criminal Appeal No. 1736 of 2000 The State of Madhya Pradesh (Now Chhattisgarh) RESPONDENTS Versus 1. Emil, aged about 50 years (wrongly mentioned as Egal in memo of appeal) 2. Philmon, aged about 35 years Both are son of Shri Pandara Tirki, Agriculturiest, r/o Village Lodhamba, Police Station Kansabel 3. Antonis S/o Munna Tirki, aged about 35 years 4. Samuwel son of Shri Sula Tirki, aged about 35 years, 5. Hilarayus son of Shri Paulush Kujur, aged about 30 years, 6. Tarsiyaus S/o Shri Julayus Khakha, aged about 25 years (Dead- Name deleted & appeal against him stands abated as per Court order dated 7.11.2009) 7. Ilajiyus, S/o Shri Mangana Tirki, aged about 50 years 8. Gyanprakash S/o Shri Karlus Tirki, aged about 30 years 9. Egnesh S/o Shri Julus Tirki, aged about 45 years 10. Domeenik, S/o Shri Somara Tirki, aged about 40 years 11. Javeer S/o Shri Stanisalas Khalkho, aged about 42 years 12. Sushil S/o Shri Marsel Tirki, aged about 20 years 13. Marsel son of Shr Kandaru Tirki, aged about 40 years ^^^•^ r •% V., ^^"^-^^h U. % ^iy"i i Criminal Appeal No. 1736 of2000 All are caste Uranva, Occupation: Agriculturiest, r/o Muhalla Bhuihartoli, village Goriya, Police Station Narayanpur, Tahsil: Kunkuri, District: Jashpur Nagar (M.P.) (Now Chhattisgarh) (Appeal under Section 378 (1) ofThe Code ofCriniinal Procedure) Appearance: Mr. Akhil Mishra, Dy. appellant/ State. None for the respondents. Govt. Advocate for the JUDGMENT ( 4-.03.2010) Following judgment of the Court was delivered by Sunil Kum.ar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 5th of August, 1999 passed in Sessions Trial No. 58/98 by the Additional Sessions Judge, Jashpurnagar, the State has filed this appeal with the leave of the Court. (2) The facts, briefly stated, are as under:- The case of the prosecution is that on 20.12.98 at about 4.00 p.m., the respondents formed an unlawful assembly; participated in rioting with deadly weapons; and in prosecution of the common object of that assembly committed murder of deceased Dholuram by causing injuries by lathi, danda & tabbai Deceased Dholuram was uncle ofAlvis Tirki (PW-4). Respondent Emil is the real uncle of Alvis Tirki (PW-4). Alvis had a land dispute with respondent Em.il. On the fateful day, on account of fishing in the disputed pond, firstly a quarrel took place between Alvis (PW-4) and Emil etc. The allegations are that on this account, the respondents chased Alvis and deceased ,^.. ^ y€^.^:A vs^—^s. •^s^ '^ ^ \^^y/ ^^ws^s"' Criminal Appeal No. 1736 of 2000 Dholuram. When they reached in front of house of Dholuram, Alvis was injured by Antonis. Alvis entered in the house of Dholuram, but Dholuram was beaten by the respondents. He sustained many injuries and succumbed to those injuries. The incident was witnessed by Alvis Tirki (PW-4) and Labadri Bai Chouhan (PW-3 - wife of the deceased). Sukanti @ Gudiya (PW-2 - daughter of the deceased) went to the house of Matiram (PW-1 - elder brother of the deceased). Matiram lodged the merg intimation (Ex.-P/17) and the First Information Report (Ex.- P/16). In these documents, he mentioned the names of 5 respondents only. The F.I.R. and merg intimation were lodged on the next day. In these documents, the time of incident has been mentioned as 19.00 hours. Respondents/accused persons were charged u/ss 147, 148, & 302/1490flPc. On trial, Matiram (PW-1), Sukanti @ Gudiya, (PW-2) and Labadri Bai (PW-3) turned hostile. They did not support the case of prosecution. The Sessions Court disbelieved the testimony of Alvis Tirki (PW-4). Therefore, the respondents were acquitted ofthe charges framed against them. (3) Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State/appellant, argued that the Sessions Court erred in law in disbelieving the testimony of Alvis Tirki (PW-4), therefore, the judgment of acquittal vitiates. (4) We have heard the learned counsel for the State at length and have also perused the records ofthe sessions case. (5) In Budh Sincih 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 Criminal Appeal No. 1736 of2000 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 ajudgment 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 othenvise 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. (6) In V.N. Ratheesh -Vs.- State of Kerala, AIR 2006 SC 2667, the Apex 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 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 ofjustice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than Criminal Appeal No. 1736 of2000 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 Bhafjwan Singh and others -Vs.- State ofMadhua Pradesh (2002 f2) 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. (7) In Ramesh Babulal Doshi -Vs- State of Gufarat (1996) 9 SCC 225, the Apex Court said that "While sitting injudgment 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 deraonstrably 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". ,^'stst^. ^}^^-. Criminal Appeal No. 1736 of2000 (8) Now we shall examine the case on hand on the above principles laid down by the Apex Court. (9) Admittedly, out of 2 eye-witnesses namely Labadri Bai Chouhan (PW-3) and Alvis Tirki (PW-4), Labadri Bai (PW-3) has turned hostile. Labadri Bai is the wife of the deceased. The incident is said to have taken place in front of her house. Even the daughter of the deceased namely Sukanti @ Gudiya (PW-2) has also turned hostile. The brother of the deceased namely Matiram (PW-1), who had lodged the F.I.R. and the merg intimation has also turned hostile. Alvis Tirki (PW-4) has been disbelieved by the Sessions Court on many grounds which are mentioned in Paras- 8 & 9 of the judgment. The Sessions Court held that there was a land dispute between the two branches and this witness has an inimical background with the respondents. He has improved the story to implicate as many as 13 persons. There were contradictions in his police case diary statement and the court evidence. In the case diary statement, he stated that he saw that Emil Tirki, Philmon, Hilarayus, Samuwel and Antonis etc. were fishing in the disputed pond, whereas, in his court evidence, he deposed that Mandu, Shital and brother of Tolo were fishing in the pond. The Sessions Court further obser^ed that according to his version, he was assaulted by Antonis by an axe on the left side of waist, left knee, left shoulder so he would have received incised wounds but no such wounds were found. According to the prosecution, he went inside the house of Dholuram. He claims ^,;^^:^ ^" ^^^. Criminal Appeal No. 1736 of 2000 that he saw the incident from the house of Dholuram through a window. Labadri Bai (PW-3) deposed that she could not identify the persons who assaulted her husband because there was darkness. When Labadri Bai, who was outside the house and much nearer to the place of incident, could not identify the assailants on account of darkness, it does not appear to be reasonable that a person inside the house at more far distance would be able to identify the assailants. We note that according to the F.I.R. and merg intimation, the incident took place at about 7.00 p.m. in the month of December. Therefore, in the above facts and circumstances, the claim made by Alvis Tirki (PW-4) appears to be unreasonable. (10) We further note that in the F.I.R., lodged by the real brother of the deceased, who was duly briefed by daughter of the deceased, only 5 respondents have been named. If, in fact, 13 accused persons participated in the incident, why their names would have been omitted in the F.I.R. lodged by the brother ofthe deceased. Though it does not com.e in the F.I.R. that he was briefed by the wife of the deceased but it cannot be believed that when he had taken the deceased inside his house and has given first-aid etc., he would not have a talk with the eye-witnesses particularly wife of the deceased. Therefore, the omissions of the names of other respondents in the F.I.R. was fatal to the prosecution and was suggestive of the fact that Alvis had tried to falsely implicate as many as 13 persons in the incident. It is in Criminal Appeal No. 1736 of 2000 these circumstances, he has been disbelieved by the Sessions Court. (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 othenvise 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 judgm-ent m-ay be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. (12) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti