''t. 'twsSh ? "• 1S»^j v.-snf' -^^^^^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAWI: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENTS Criminal Appeal No. 100 of 1991 State of M.P. (Now Chhattisgarh) Versus 1. Beni Ram S/o Firturam Sahu, Aged 40 years 2. Rewaram S/o Firturam Sahu, Aged 25 years 3. Kejaram S/o Firturam Sahu, Aged 45 years 4. Firturam S/o Dandiram Sahu, Aged 65 years All R/o of Village Jauratarai, P.S. Lalbagh, Rajnandgaon, Tehsil & District Rajnandgaon (M.P.) (Now C.G.) (Criminal Appeal underSection 378 (1) ofThe CodeofCriminal Procedure) Appearance: Mr. Alok Bakshi. Govt. Advocate for the appellanVState. Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashi Bhushan, Advocate for respondents 1 & 2. JUDGMENT (Z.7-.01.2010) Following judgment of the Court was delivered by Sunil KumarSinha, J. (1) Being aggrieved with the judgment dated 8 February, 1990 passed in Sessions Trial No. 98/89 by the Second Additional Sessions Judge, Rajnandgaon, the Stat6*tias filed this appeal. (2) By the said judgment, respondent No.l-Beniram has been convicted u7s 304 Part-1 IPC and sentenced to undergo R.l. for 7 years, wtiereas the other 3 respondents have been acquitted. S^ ! •-.y^ Criminal Appeal No. 100 of 1991 (3) The leave was granted to file appeal against respondents 1 & 2 only. (4) The facts, briefly stated, are as under:- Respondents 1 & 2 were charged u/s 302/34 IPC, whereas, respondents 3& 4 were charged u/s 302 read with Section 120-B IPC. The allegations are that on 23.7.89 at about 3.00 p.m. respondents 1 & 2 committed murder of deceased Narad Ram Sahu. It is further alleged that it was a planned murder for which a criminal conspiracy took place one day prior to the incident in the house of the respondents in which respondents 3 & 4 were parties. The case of the prosecution was that a long lead civil litigation was decreed in favour of Fagni Bai from the Distrit Court, Rajnandgaon on 21.7.89 in which respondent No.4 was the opposite party. Fagni Bai had executed a will-deed in favour of deceased Narad Ram Sahu. Respondent No. 4 had filed an appeal against the said judgment in the High Court. Fagni Bai was residing with the deceased. On this account respondent No.4 and his 3 sons (respondents 1 to 3) were keeping grudge against deceased Narad Ram Sahu. For all this deceased had lodged a report on 1.6.89 which was taken on Rojnamchasahana No. 10 of the said date. The allegations are that on account of the said inimical relations, respondents/accused persons entered into criminal conspiracy to commit murder of the deceased. On 23.7.89 the deceased and his grand son Khuman Singh (a minor aged about 5- 6 years) had -gone for defecation in a dabra (water resource) near their 'hcfuse. At that time respondents 1 & 2 came there and assaulted the deceased by axe and lathi. According to the prosecution, respondent No.1 wasihplding the axe and respondent No.2 was holding the lathi. When|respondents 1 & 2 attacked the deceased, Khuman Singh rushed to his house and called her mother Madhu Bai (PW-2). Madhu Bai witnessed the incident. ~ Another lady namely Kulwantin Bai (PW-3) also witnessed the ^ ''^, :'^yt^::^^h'. i " KP. !S--®) B U - .f S "!E a3» a'K^^S^SW Criminal Appeal No. 100 of 1991 incident. Respondents 1 & 2, after assaulting the deceased before these witnesses, ran away from the place of occurrence. The deceased died while he was being taken to the hospital. The First Information Report (Ex.-P/1) was lodged by Sudama (PW-1 son of the deceased). Dr. K.K. Tamrakar (PW-12) conducted the post- mortem examination and found 2 incised wounds of 1% inch on the back of the deceased. He also noticed 4 lacerated wounds on the skull and opined in the post-mortem report (Ex.-P/11) that the injuries were ante-mortem in nature. According to the Autopsy Surgeon, the cause of death was injuries to the head which caused extra-dural haemorrhage and shock. The case of the prosecution was based on 3 eye-witnesses namely Madhu Bai (PW-2), Kulwantin Bai (PW-3) and Khuman Singh (a child witness). Khuman Singh was not examined by the prosecution. The learned Sessions Court.on a close scrutiny of evidence of Kulwantin Bai (PW-3), held that she did not witness the occurrence and her testimony was discarded. It further held that there was no reliable evidence to hold that respondent No.2 also participated in marpit 01 even he was present at the scene of occurrence. The Sessions Court held that, in fact, participation of Beniram-respondent No.1 was fully established, therefore, he alone was liable for punishment for his acts. About the criminal conspiracy it held that there was absolutely no evidence on record to hold that any criminal conspiracy took place prior to the inddent. Therefore, respondents 2 to 4 were acquitted of the charges framed against them. However, respondent No.1 was convicted and sentenced as aforementioned. ^ / (5) Mr. Alok Bakshi, learnecTGovt. Adypcate appearing on behalf of the appellant/State, argued that in the facts and circumstances of the case, respondents 1 & 2 ought to have been convicted u/s 302/34 IPC. He took us to the eviderrce of Madhu Bai (PW-2) and Kulwantin Bai (PW-3). '"'<•" m. 'l iB-SSi 8 •^^ •i^^^^sSSt ^-<*s^>^'- Criminal Appeal No. 100 of 1991 (6) On the other hand, Mr. P.K.C. Tiwari, learned Senior Advocate appearing on behalf of respondents 1 & 2,opposed these arguments. (7) It is stated at bar that respondent No.1 has not challenged his conviction u/s 304 Part-1 IPC. He was arrested on 24.7.89 and he has already undergone the sentence imposed against him. (8) We have heard the learned counsel for the parties at length and have perused the records of the sessions case. (9) So far as acquittal of respondent No.2-Rewaram is concerned, we find that the same is based on cogent reasons. Kulwantin Bai (PW-3) deposed in Para-6 of her evidence that she did not tell the police about the presence and assault made by respondent No.2 because she had forgotten it. Her police case diary statement was recorded on the very next day of the incident. The Session Court while appreciating her evidence held vide Para-13 of the impugned judgment that the said conduct of this witness appears to be quite unnatural. If she had seen the entire incident, and respondent No.2 was also present at the time of the incident and had participated in assaulting the deceased, she should have mentioned his name in her case diary statement which was recorded on the very next day of the incident. It is for this reason her testimony ha^ been disbelieved and the presence of respondent No.2 at the scene ofoccurrence has toeen held to be suspicious. She has further been disbelieved because according to (his witness, respondent No.2 had used a lathi which was of one hand (1 Vz feet) but the lathi, which has been seized at th~e instance of respondent No.2 vide Ex.-P/S & P/9 is of •i.'ii"^!, iyfy Criminal Appeal No. 100 of 1991 ^k\ ^•^^.%^;':r^g8 the length of 4 Vi feet (artide-D). Madhu Bai (PW-2) deposed that she saw that her father-in-law was assaulted by respondent No.2 by a lathi. It is on these reasons, the Sessions Court disbelieved the testimony of this witness and held that the pj'esence of respondent No.2, at the scene of occurrence, was doubtful. (10) So far as respondent No.l-Beniram is concerned, Madhu Bai (PW- 2) deposed that he was holding a tangia and he gave 2-3 teng/'a blows on the head of the deceased and 2-3 blows on the back of the deceased. Dr. K.K. Tamrakar (PW-12) has deposed that he noticed 4 lacerated wounds on the skull of the deceased. The first was on the right eye-bro; the second was on the left frontal bone; the third was on the right occipital bone and the fourth was on the temporal region. Besides the above, he noticed 2 incised wounds on the back of the deceased. They were of 1 % inch - 1 % inch length. He did not measure the deepness or breadth of these injuries. He deposed that the incised wounds were caused by sharp edged weapon and other wounds, which were lacerated, were caused by hard and blunt object. He noticed extra-dural haemorrhage. The learned Sessions Court held that the Autopsy Surgeon did not mention in his report about the nature of injuries sustained by the deceased. Even breadth and deepness of the injuries have not been mentioned. He did not mention a&to whether the injuries were simple or grievous and that .. / they.were sufficient to cause death in ordinary course of nature. It is for these reasons, the Sessions Courti held that in the facts and circumstances ofthe case, an offence u/s 304 Part-1 IPC would be made out. ;;3S :"":?:iaa y,' Crimmal Appeal No. 100 of 1991 ^ (11) We find that consistent version of the prosecution was that respondent No.l-Beniram was armed with a tangia. Though it comes in the evidence 6f Madhu Bai (PW-2) that Beniram assaulted the deceased by the tangia on his head aad back but no incised wound was found on the head of the deceased, In fact, the deceased sustained lacerated wounds on his skull as deposed by Dr. K.K. Tamrakar (PW-12) vide Para- 5 of his evidence. Madhu Bai (PW-2) did not depose that Beniram used blunt side of tangia while assaulting over the skull of the deceased and he used sharp side of tangia while assaulting his back. The version of Madhu Bai (PW-2) regardingassault to the head of the deceased is falsified by the evidence of Kulwantin Bai (PW-3) who is an independent witness as she deposed that the assault on the skull was given by respondent No.2-Rewaram. Since there is no appeal filed by respondent No.l-Beniram, therefore, we are not giving much importance to these facts. But if we co-relate the death of the deceased with the medical evidence, we find that it was on account of the head injuries sustained by the deceased. Present is not a case in which the common intention has been proved, though the prosecution based its case on common intention. Therefore, in the facts and circumstances of the case, respondent No.l-Beniram would be responsible for the acts attributed to him. (12) The first Part of S. 304 is intended to include those cases in which the act of the accused would be culpable homicide amounting to murder but for the fact that it was committed in circumstances which render one or the other of the exceptions to S. 300 applicable. Section 304 Part-1 IPC applies where the accused causes bodily injury with intention to cause '% .-' SSSk. B :.i;:. p-^ij fc :^ SK^HSSSSf '•' ie*;£" WV^y':^^:' Criminal Aoueal No. 100 of 1991 death. There is yet an other class of cases to which Part-1 of S. 304 applies and in which no question of application of Exceptions to S. 300 arises. If the injury, which the accused intended to cause, was likely to kill, his case would fall undei: Part-1 of S. 304 because in such a situation the offence may amount tp culpable homicide, but not murder, even though none of the Exceptions, mentioned in S. 300, are applicable to the case. This is with reference to Part-1 of S. 299 IPC which relates to the intention of causing the bodily injury likely to cause death classifying the offence punishable u/s 304 Part-1. (13) In the present case, it appears that respondent No.l-Beniram did the act with intention of causing bodily injury to the deceased which was likely to cause his death. However, the Doctor did not depose that the injury inflicted by respondent No.1 was sufficient in the ordinary course of nature to cause death of the deceased. Therefore, theact of respondent No.1 would not amount to murder but shall remain culpable homicide not amounting to murder which is punishable under the first Part of Section 304. (14) 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 C3'se where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment 6f acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whetherithe views of the trial Court were perverse or otherwise unsustainable. It Es also entitled to consider as to <;> Criminal Apoeal No.l00_of 1991 whether in arriving ata 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. (15) 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 of justice 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 ignore.d, 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 Bhasjwan Singh and others -Vs.- Stefe of Madhya Pradesh (2002 (2) Supreme 567). 11 was furtherlheld that the principle to be followed byAppellate Court considering the appeal against thejudgment itSs, iti';.;3f 't> »„ <a ~ie;:'alK1&fe Criminal Appeal No. 100 of 1991_ '^ 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. (16) 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 available on record, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal of respondents 1 & 2 u/s 302/34 IPC. We also do not find the judgment of conviction of respondent No.1 u/s 304 Part-l IPC to be unreasonable so as to interfere in this appeal. (17) For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liabte to be dismissed and is hereby dismissed. Sd/- CliiefJustice Sd/- Sunil Kumar Sinha Judge ;-tti