\\ ^7c^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1710 of 2000 The State of Madhya Pradesh (Now State of Chhattisgarh) Vs. Ishwar & Others JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3i A^Y<£^- Sd/- Chief Justice Post for Judgment : /3 /04/2011 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1710 of 2000 APPELLANT The State of Madhya Pradesh (Now State of Chhattisgarh) Versus RESPONDENTS 1 Ishwar, aged about 27 years, son of Shri Mangal Gabel 2 Dharam Singh @ Jodhi, son of Shri Nekiram Kanwar, aged abouf 22 years Both are residents of Village Nawapara Kala, Police Station: Sakti, District Janjgir-Champa 3 Shyamlal S/o Shri Kushlal Gabel, aged about 24 years 4 Guddu @ Chandrika S/o Shri Ghasiyaram Gabel, aged about 23 years Appellants No. 3 & 4 residents of Village Bagdewa, Police Station Kharsiya, District Raigarh, M.P. (Now Chhattisgarh) (Criminal Appeal under Section 378 (1) of The Codeof Criminal Procedure. 1973) Appearance: Mr. J.A. Lohani, Panel Lawyerforthe appellant/State. None for respondent No.1. Mr. Deepak Kumar Singh, Advocate for respondent No.2. Mr. Vikash Pradhan, Advocate for respondents 3 & 4. / ^.y.-.-^M.e^ ^ r^T^^ V&^. I ^' '%1 .^ '"^-. Griminal Appeal No. 1710 of 2000 JUDGMENT (l?> .04.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 18th of February, 2000 passed in Sessions Trial No. 489/98 by the Additional Sessions Judge, Sakti, whereby the respondents have been acquitted of the charges framed u/s 395 IPC, the State has filed this appeal. (2) The facts, briefly stated, are as under:- In the intervening night of 10.7.98 & 11.7.98 at about 2.00 a.m., 5 accused persons committed dacoity in the house of complainant- Chhotelal (PW-3). Lakheshwar (PW-2 - son of Chhotelal) and Laxmi Kumari (PW-4 - wife of Chhotelal) were also present in the house. The dacoits tooted golden & silver articles amounting to Rs.6,000/-. Chhotelal (PW-3) lodged the First Information Report (Ex.-P/1) on 11.7.98. He mentioned in the F.1. R. that he could not identify the dacoits as they had covered their faces by masks. Even he did not give much details about the dacoits except that 4 dacoits were of short- height. The case of the prosecution is that while recording the memorandums statement of Ishwar Prasad Gabel (R-1) and Dharam Singh @ Jodhi (R-2) in a different crime number, they also disclosed about commission of the present offence. It is on this information, on 24.7.98 Ishwar (R-1) and Dharam Singh (R-2) were taken into custody in this matter and their memorandum statements (Ex.-P/18 & P/19) were recorded u/s 27 of the Evidence Act and certain articles were seized at the their instances. Later on, on 15.8.98 Shyamlal (R-3) and ,^---^^ /".e~^ &/ ii&, y i lA'J \^:^y../ ^••^^.^ ^) Criminal Appeal No. 1710 of2000 Guddu @ Chandrika (R-4) were also taken into custody and their memorandum statements (Ex.-P/13 & P/16) were also recorded u/s 27 of the Evidence Act and some artictes were seized on the instances of these respondents. Seized articles were put for identification vide identification memos (Ex.-P/4 & P/10) and were identified by Chhotelal (PW-3) and Laxmi Kumari (PW-4). Out of 5 accused persons, only 4 accused persons (respondents herein) could be arrested. However, the 5 accused namely- Baran S/o Teekaram Patel remained absconding. Since none of the witnesses claimed that they would identify the assailants, no Test Identification Parade (T.I.P.) for identification of the accused persons was conducted. After completion of usual investigation, the charge-sheet was filed against the 4 accused persons (respondents herein) in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge, Sakti, who conducted the trial and acquitted all the respondents. (3) The Session Judge held that the respondents were not identified by the eye-witnesses at the time of incident; they were not named in the F.1.R. (Ex.-P/1); the Test Identification Parade (T.I.P.) was not conducted; and the discovery memos and the seizure of the properties were not at all established; therefore, the prosecution utterly failed to prove the case against the respondents and the respondents were entitled to acquittal. Criminal Appeal No. 1710 of2000 (4) Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the appellant/State, argued that there is evidence of dock identification; the memorandum statements were duly proved; the articles of dacoity were seized at the instances of the respondents; they were duly identified by the complainant and his wife, therefore, the learned Sessions Judge erred in law in acquitting the respondents of the charges framed against them. (5) On the other hand, Mr. Deepak Kumar Singh and Mr. Vikash Pradhan, learned counsel appearing on behalf of respective respondents, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard learned counsel for the parties at length and have also perused the records of the sessions case. (7) Chhotelal (PW-3) deposed that he was knowing the accused persons since back. He very clearly deposed in his examination-in- chief that he could not see the faces of the assailants at the time of incident. In the cross-examination, at one place (Para-21), he casually deposed that he had identified the assaitants (accused persons) 'mchimney light. (8) Laxmi Kumari (PW-4) is the wife of Chhotelal. She deposed that she wasalso knowing the accused persons. They had entered into their house and had taken her to the patav (upper storey) of her house. Criminal Appeal No. 1710 of 2000 (9) Lakheshwar (PW-2) is son of Chhotelal. He was aged about 12-13 years on the date of incident. He deposed that the assailants had covered their faces by masks. The incident took place at about 2.00 a.m. In the cross-examination, Para-5, he deposed that he knew all the accused persons because they had entered into their house to commit dacoity. Though they had covered their faces, but it was by net cloths, therefore, he could identify them. His evidence relating to identification is an omission in his case diary statement (Ex.-D/1). In last line of Para-6, he admitted that he is wrongly saying that he had identified the accused persons to be the assailants. On a court question in Para-7, he very clearly admitted that the accused persons had not entered into their house. (10) Chhotelal (PW-3) had lodged the F.I.R. (Ex.-P/1) in the next morning at about 12.30 Noon. In the F.I.R., as stated above, he did not mention the names of the assailants. On the contrary, he stated in clear words that the assailants had covered their faces by masks, therefore, he could not identify them. If 2 other witnesses i.e. Lakheshwar (PW-2) and Laxmi Kumari (PW-4) would have identified the assailants, they would have certainly told their names to Chhotelal (PW-3) and Chhoteal would have mentioned their names in the F.1. R. In appreciation of the entire evidence of these witnesses, we find that the assailants had covered their faces by masks, therefore, none of the eye-witnesses could identify the fgr^ Criminal Appeal No. 1710 of 2000 @ assailants as a result of which neither their names nor their whereabouts were mentioned in the F.1. R. by Chhotelal (PW-3). (11) The learned Sessions Judge has held that it was not established that the respondents had given their discovery statements and the articles were seized at the instances of the respondents. Baleshwar (PW-17) and Shatrusingh (PW-18) are the 2 witnesses of discovery memos (Ex.-P/13 & P/16) given by Shyamlal (R-3) and Guddu @ Chandrika (R-4). Baleshwar (PW-17) clearly deposed that articles were placed before him by police; police had told him about articles and his signature was taken in different documents. Shatrusingh (PW-18) also deposed that no statement was recorded before him. However police had prepared some documents and he had put his signatures over those documents. In appreciation of the evidence of these 2 witnesses, it is clear that the articles were in possession of the police and police only did formality of recording discovery statements of the above accused persons in presence ofthe above 2 witnesses who puttheir signatures over the documents prepared by the police. Therefore, there is not question of any statements leading to the discovery, as required u/s 27 of the evidence Act. (12) Manmohan (PW-26) and Mahesh Kumar (PW-27) are the 2 witnesses of discovery memos (Ex.-P/18 & P/19) said to be that of Ishwar (R-1) and Dharam Singh @ Jodhi (R-2). They clearly ^^^.^,,.. •^ ^ r i fi^ ] ./ Criminal Appeal No. 1710 of 2000 deposed that Dharam Singh (R-2) or Ishwar (R-1) had not given any statement to the police before them. They have been declared hostile by the Public Prosecutor and have been cross-examined at length, but nothing material could be brought in their cross- examinations which may support the discovery allegedly made on the statementsgiven by the above accused persons. (13) Apart from the above, we find that none of the discovery statements bears the signature of the accused persons. In Jackaran Singh -Vs- State of Puniab. AIR 1995 SC 2345, the Supreme Court held that "The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement". The Sessions Judge has given cogent reasons for disbelieving the discovery memos allegedly recorded at the instances ofthe accused persons. Therefore, in view of the cogent reasons given by the Sessions Judgeand further in view of the evidence of the witnesses of alleged discoveries, and also in view of the fact that none of the discovery memos bear the signatures/thumb impressions of the respondents, the reliability of the said memos become doubtful. It is in these facts and circumstances, the Sessions Judge held that it was not established beyond all reasonable doubts that the ornaments seized by the police were, in fact, seized at the instances of the respective respondents as per their disclosure statements. ^ llr^ // ^- '•s- 'm% i J/ ^sy Criminal Appeal No. 1710 of 2000 Therefore, in view of the above facts and circumstances of the case, identification of the articles cannot be attributed to the respondents. (14) In Budh Sinah and others -Vs.- State of U.P. (2006} 9 SCC 731, the Supreme 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. (15) In V.N. Ratheesh -Vs.- State of Kerala. AIR 2006 SC 2667, the Supreme 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 Supreme 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 I/1 r'^ ,^. /f .,^"""^^ s( &..'" ^o-) Criminal Appeal No. 1710 of 2000 "^-,,.: 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 Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage 'ofjustice is prevented. A miscarriage ofjustice 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 beenacquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme 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. (16) In Ramesh Babulal Doshi -Vs- State of Guiarat (1996) 9 SCC 225, the Supreme Court said that "While sitting in judgment 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 demonstrably / /." ^' ' '^ ^ ^•~ ^- .^;-">..- ...\ ^. ls.;- •. •.-.^'. 10 Criminal Appeal No. 1710 of2000 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 orderof 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". (17) 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. It is 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 ofappreciation. (18) 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