r i» .^ :'^y:^ HIGH COURT OF CHHATTISGARH: BILASPUR Division Bench : HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI RAJESHWAR LAL JHANWAR. JJ Criminal Appeal No. 731 of 1991 Appellant Responde^nt State of Madhya Pradesh (now the State of Chhattisgarh) Versus Shaniram. JUDGMENT FOR CONSIDERATION Sd/- R.L. Jhanwar Judge iStSf HON'BLE^SHRI JUSTICE T.P.SHARMA 5. Sd/-,, - T.P.Sharma Judge Pronouncementof Judgment •(^.08.2010 Sd/- Judge ^.08.2010 HIGHCOURT OFCHHATTISGARH : B1LASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHR1 R.L.JHANWAR, JJ. APPELLANT RESPONDENT Cr,AJMo^73l^fj991 State of Madhya Pradesh (now State of Chhattisgarh) VERSUS Shaniram, aged 32 years, S/o Mangalsai Kanwar, resident of Kanwarpur, Police Station - Lakhanpur, Dist. Surguja (M.P. now C.G.) APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 378 (3) AND CR1MINAL APPEALAGAINST ACQUITTAL UNDER SECTION 378 (It OF THE CR.P.C. 1973 Shri Sushil Dubey, Government Advocate for the appellanVState. Shri Manoj Mishra, counsel forthe respondent. JUDGW1ENT (Delivered on )fcwl.08.2010) Per Rajeshwar Lal Jhanwar, J, This is a State appeal aggrieving with the judgment of acquittal passed on 07.12.1989 in Sessions Case No. 60/89 by the 2nd Additional Sessions Judge, Surguja (Ambikapur) whereby the respondent - Shaniram was acquitted under Section 307 ofthe I.P.C. 2. As per brief prosecution story, taking the dispute of election of Patel at village Kunwarpur, on 04.07.88 at about 2.00 a.m in the night the respondent came to the complainant -Indersai armed with Tangi and assaulted Indersai with the said weapon and caused injuries to the complainant. Incident of report was lodged at 9.00 a.m. at police station Lakhanpur and on the basis of which F.1.R. Ex.P.11 was registered against the respondent. Complainant was sent to Primary Health Center, Lakhanpur for medical examination vide Ex.P.5 and Investigating Officer left the scene of occurrence from where plain soil and bloodstained soil were collected and seized vide Ex.P.4. On 06.07.88 on the basis of Ex.P.1 memorandum of the respondent weapon of offence Tangi was seized vide Ex.P.2. Lungi of theappellant was seized vide Ex.P.3. ^ Appellant was also sent to medical examination Ex.P.7 and weapon of offence was also sent to the Doctor. Upon examination of the complainant, Doctor opined that the injuries found on the body of the complainant could be caused by the said weapon of offence. The complainant was advised to X-ray test on his head and X-ray was also done. Spot map was madevide Ex.P.12. Patwari alsoprepared a map vide Ex.P.8. After recording statements under Section 161 ofthe Cr.P.C. and after completion of investigation, charge sheet has been filed before the Judicial Magistrate First Class, Ambikapur. 3. The learned J.M.F.C. committed the case to the Sessions Judge, Ambikapur who made over the case the 2 Additional Sessions Judge, Ambikapur for trial. Charges were framed against the respondent under Section 307 of the I.P.C. and were read over and explained to the respondent, who abjured the guilt, pleaded innocence and false implication in the present ease. His defence was that Padum, son in law of the complainant, came to him and told that he (Padum) assaulted his father in law (i.e. complainant) and at the time of assault by Padum, Shyamdhan was present. 4. Learned counsel for the State/appellant vehemently argued that the learned Additional Sessions Judge has erred in acquitting the respondent despite adequate evidence adduced before him to connect the respondent in the office. The learned Additional Sessions Judge recorded a finding- that the F.1.R. was belatedly registered whereas it was lodged on the date of incident itself. He further argued that the learned Additional Sessions Judge has not properly evaluated the evidence of the injured Indersai. It was also argued that the learned Additional Sessions Judge ought to have relied upon the evidence of P.W.9 daughter of the complainant and P.W.10 Sukhmania whb have clearly deposed that the respondent entered the house forcibly and assaulted Indersai and the evidence of those witnesses is corroborated by the F.I.R. and the evidence of P.W.5 Dr.M.H.Parmar and ought to have convicted and sentenced the respondent on the basis of aforesaid evidence. Lastly, it was argued that the learned Additional Sessions Judge has not relied upon the evidence of Sukhmania, eye witness of the incident on the ground that Dalsai, who was also present on the spot, was not examined by the prosecution. On -3 these premises, learned Government Advocate prayed that respondent should properly be convicted according to law. 5. On the other hand, learned counsel for the respondent while supporting the impugned judgment argued that the learned Additional Sessions Judge has properly dealt with the evidence adduced before it and has not committed any error in acquitting the respondent. 6. I have heard learned eounsel for the parties at length, perused the impugned judgment and record ofthe Court below. 7. In order to appreciate the arguments advanced by the parties, we have minutely gone through the evidence available on record. Before the Court below, as many as 12 witnesses have been examined by the prosecution. The case of the prosecution is based on only three eye witnesses, who are Srimati P.W.9, Sukhmania P.W.10 and theinjured Indersai P.W.11. Nbw, after perusal of evidence of Srimati P.W.9, it reveals that at the time of incident, she and his father went to Nohar's house to hear a story and after completion ofthat programme, they came to their home and slept. According to her statement, accused Shaniram came to their house and asked them to get up and by asking he went away from the spot. Thereafter, the accused Shaniram hurling abuses to one Jailal and other villagers. She has further deposed that at that time Dalsai was also present with his father in their house. At the same time, the accused Shaniram came and assaulted his father with Tabbal on his head and ran away. On this, they cried for help and so many people gathered there. 8. Dalsai was not examinedas eye witness. According to evidence of Srimati P.W.9, around 7 O' clock evening the village people used to sleep after having their meals. This witness, her mother and father slept in one room and sister Subaso was also present there but Subaso was not examined by the prosecution. Sukhmania P.W.10 only stated that she, her husband Indersai, her daughters Srimati and Subaso weresitting in their house in a chimney light. According to this witness, Shaniram came to there and assaulted her husband on his head and fled away. In this manner, it is clear that what Srimati P.W.9 has sfated that accused was hurling abuses to so many people; when they were sleeping, they have ^ llil1 been asked to get up by Sharniram and Shaniram ran away to his house and after that again came to the spot and assaulted the injured Indersai has been omitted. 9. Indersai P.W.11, the injured witness, has stated that he was present in his house at the time of incident. His daughters Srimati and Subaso and his wife Sukhmania were also present with him. According to him, he was sleeping, Shaniram came and asked him to get up and thereafter he went away from his house. Then,again the accused Shaniram came to his house with Tangia and assaulted him and due to assault he became unconscious. According to him, he has not reported the matter to the police but after read over the contents of F.1.R. Ex.P.11 and on the basis ofwhich he admitted that had lodged the report. In this view of the matter, it is clear that what Srimati P.W.9 has stated about Shaniram and his abuses to so many people is not found in the statement of Indersai. This is main contradiction. Again, this witness stated that Shaniram came there and called them to get up but this piece of evidence is also not found in the statement under Section 161 of the Cr.P.C. and also record. This is also main omission. Similarly, there is also contradiction on how the incident took place in the statements of above witnesses. 10. If the evidence of Indersai P.W.11 that he has reported the matter to the police is believed, then the statement of Sukhmani P.W.10 can easily be discarded on the ground that she has stated that her husband Indersai has not reported the matter to the police since he was unconscious. P.W.11 Indersai also himself stated that he has not reported the incident to the police at Police Station whereas Baijnath Singh P.W.12, investigating officer stated that injured Indersai reported the matter to them at 9.30 a.m. atPolice Station. This creates dent in the prosecution story as to whether the F.1.R. lodged at Police Station and if lodged the same, when did it lodge or was it recorded at Hospital. 11, Having thus considered the evidence led by the aforesaid witnesses, it is clear that incident took place at mid night i.e. 2 O' clock and at that time all persons were sleeping. The evidence of Sukhmania P.W.10 that she was not sleeping is not reliable. She has not stated how she got up. According to Srimati P.W.9 and Indersai P.W.11, they were sleeping and Shani came there and asked them to get upshows that all persons were asleep. Prosecution has not stated about the enmity between Indersai and Shaniram; why Shaniram assaulted Indersai is also not clear from the evidence of prosecution. At the time of incident, certainly, all persons were asleep thereby there was darkness and in that darkness how the eye witnesses could identify the accused has not come in the evidence of above eye witnesses. The evidence of aforesaid eye witnesses is contradictory to each other on the point that Shaniram came to the spot, was hurling abuses to persons and asked them to get up. These pieces of evidence are also not found in the statements under Section 161 ofthe Cr.P.C. The learned trial Court has rightly discarded the evidence of these witnesses due to contradictions and omissions in their statements as also in their police statements under Section 161 of the Cr.P.C. Therefore, the respondent - Shaniram was acquitted. 12. We would examine the entire evidence of the aforesaid eye witnesses in great detail and go through the reasoning given by the appellate Court. Even assuming that this Court relying upon the evidence of aforesaid eye witnesses come to conclusion that respondent / accused found guilty, the conviction cannot be based on two sets of evidence as two views on the same set of evidence already appreciated by the Court below is not possible. The scope of interference in appeals against acquittal is well settled. In Tota Singh and anotherv. State ofPunjab, it was held by the Apex Court as under: "The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittaleven if it is ofthe opinion that theview taken by the Court below on its consideration of the evidence is erroneous." 13. For the foregoing reasons and in the facts and circumstances as mentioned above, we find that the conclusions of the Court below in acquitting the respondent are on firm foundation warranting no interference in this limited jurisdiction. There is no perversity either. 14. Consequently, we find that the challenge is devoid of substance deserves to be rejected. Accordingly, we dismiss the appeal and maintain the judgment of the Court below. The bail bonds executed by the respondent are accordingly discharged. SdA; T- P- Sharma Judge Sd/- ;.L. Judge