/',.&. J:f I, ^.^^, ij: i^sys% HIGH COURT OFCHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Rananath Chandrakar, JJ, Criminal Appeal No. 1592 of 1995 TheStatepf M.P. (Now State of Chhattisgarh) Vs. Ayata & Others JUDGMENT For consideratiorL Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RANGNATHCHANDRAKAR ^) ce^c Sdf- R.N. Chandrakar Judge ,// • '*1»- Post for Judgment :3.0/11/2010'^^ J Sd/- SunilKuKiar Sinha i^ Judge :^ ^ j JS HIGH COURTOF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Rananath Chandrakar. JJ. APPELLANT Criminal ADDealNo. 1592 QL1995 TheStateofM.P. (Now State of Chhattisgarh), Through P.S. Darbha, District Bastar (CG) Versus RESPONDENT 1 Ayata, S/o Tanga Dhurva, aged about 30 years 2 Tanga, S/o Kandara Dhurva, aged about 45 years 3 Bodi S/o Tanga Dhurva, aged about 26 years 4 MptiFam, S/o Tanga Dhurva, aged about18 years All residentsof Gram Chhindawada, P.S. Dhurva, District Bastar (Criminal Appeal under Section378 (1) ofThe Code of Criminal Procedure, 1973) Appearance: Mr. Akhil Mishra, Dy. Govt. Advocate for the appellant/State. Mr. V.C. Ottalwar.-Advocate for the respondents. JUDGMENT (30.11.2010) Following judgment of the Court was delivered by Sunil KumapSinha. J. t . . ' (1) -Being aggrieved witlijudgment of acquittal dated 10 of 1' . - '. . \"'^_ . • . • February, 1995 passed in Sessions Trial No. 81/89 by the Second Additional Sessions Judge, Bastar at Jagdalpur, the State has filed thisappea!. - Crimmal Appeal No. 1592 of 1995 ^ (2) By the impugned judgment, the respondents have been acquitted of the charges fram6d against them u/ss 302/34 & 323 of IPC. (3) Respondent- Ayata is husband of deceased- Budhri Bai. Respondents Bodi and Motiram are two brothers of respondent- Ayata and respondent Tanga is their father. On 6.4.88, the deceased had gone to the house of her sister Fulobai (PW-4) along with her mother Mangaldei (PW-5). At about 6.-7.00 p.m., respondent- Ayata came there and slapped the deceased making allegations against her character. Aftersometime, when the mother and sister of thedeceased took her to the house of the respondents, the respondents came with lathis and assaulted the deceased by lathi, hands and fists. The deceased became unconscious. The deceased died on 8.4.88. The matter was reported by Mangaldei (PW-5) on 9.4.88, on which, a First Information Report (Ex.-P/7) was registered. The dead. body of the deceased was sent for post- mortem. The post-mortem examination was conducted by a team of 3 Doctors. The post-mortem-report is Ex.-P/5. There were no ekternal injuries on the body of the deceased. However, there were u''*Tlr . ' . . ' - -fractures on^eft 6 , 7 & 8 ri.bs. Blood clots were present beneath ' the skin on skull. Bloodclot^*were also present beneath the skin on back. Left lung was also ruptured. According to the post-mortem report, the causeof death was coma & shock as a result of head ^ injury. Oneofthe Autopsy Surgeon- Dr. B.K. Lagu (PW-9) admitted ;\<; A Criminal Apceal No. 1592 of 1995 t^. •^/ in the cross-examination that the injury on the head and thoracic cavity could be caused by fall in the scuffling and the injuries on the ribs could also be caused in such fashion. He further admitted that hematoma on the back'could also be caused on fall. The lady Surgeon namely Dr.(Sm"t.) Santi Pandey (PW-6) who had also participated in autopsy also suppqrted the post-mortem report Ex.- P/5. (4) The case of the prosecution was based on eye-witness account of Fulabai (PW-4 - sisterofthe deceased) and Mangaldei (PW-5 - mother pf the deceased). The learned Sessions Judge did not rely on the testimonies of these 2 witnesses (PW-4 & PW-5) and acquitted the respondents of the charges framed against them. (5) Mr. Akhrl Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, argued that the learned Sessions Judge erred in law ih discarding the testimonies of PW-4 and PW-5. Both these witnesses were fully reliable and the Sessions Judge ought to have convicted the respondents on their testimonies. (6) On the other hand, Mr. V.C. Ottalwar, learned counsel ./ 'appearing -opl behalf of the respondents, supported the judgment •'''••:•. .: ' - . ^s^. passed by the Sessions Court. He argued that the two witnesses namely Fulobai (PW-4) and Mangaldei (PW-5) are the realsister and mother of the deceased, therefore, they were interested witnesses:;and their testimonies were rightly discarded by the Criminal Aooeal No. 1592 of 1995 Sessions Court after due appreciation of their evidence. He also argued that the said witnesses claim to see the occurrence on 6.4.88 and the F.I.R. (Ex.-P/7) was lodged after inordinate delay on 9.4.88. The Sessions Jud^e has taken a view which was one bf the possible views and has recorded the finding of acquittal, therefore, the samecannot be lightly disturbed in an appeal filed bythe State because the State has not shown any compelling reason to take a different view. - (7) We have heard the learned counsel for the parties at length and have also perused the records of the Sessions Court. (8) Fulbai (PW-4) deposed that respondent- Tanga assaulted the deceased by lathi and the other respondents assaulted her by hands and fists. Mangaldei (PW-5) also deposed that the deceased was assaulted by lathi by respondent- Tanga. After receiving assault on the back, the deceased fell down and then respondent- Ayata assaulted her by hands, and thereafter none of the respondent assaulted the deceased. The learned Sessions Judge held that both thesg witnesses had reached to the house of respondents at the same point of,time and both claim to see theentire incident, but there.weremany contradictions in their evidence. The Sessions s^. Ju^ge, therefore, did not rely on the testimonies of these two witnesses. It wgs further noted by the Sessions Judge that Fulbai (PW-4) deposed tha.twhenrespondent-Ayata came to her house, he t ^\ &it. ^ \J] Criminal Auoeal No. 1592 of 1995 ^ slapped the deceased and took thedeceased With him, and they also accompanied the deceased and respondent- Ayata to their house; whereas Mangaldei (PW-5) deposed that Ayata left the house of Fulobai all alorie after he slapped the deceased, and thereafter she went to the" house of respondents along with her two daughters i.e. Fulobai (PW-4) and deceased- Budhri Bai forleaving the deceased. It is on these contradictions, the Sessions Judge has held that the conduct of these two witnesses was not fair and he did not find it safe to rely on their testimonies. (9) We find that the above two witnesses (PW-4 & PW-5) are sister and mother of the deceased, therefore, they were relative witnesses and their evidencewas to be scrutinized with great care and caution. On perusal of the impugned judgment, it appears that the Sessions Judge has very carefully scrutinized the evidence of these two witnesses and has recorded the finding that their testimonies were not reliable. (10) Apart from the above, we atso find that the incident is said to hayg-taken place on 6.4.88; the deceased died on 8.4.88; and the F.I.R. (Ex.-P/7) v?as lodged on 9.4.88. The F.I.R. (Ex.-P/7) was -7- lodged by Mangaldei (PW-5^- mother ofthe deceased). She has not >i*«- given any-explanation as-to why the report was lodged after 3 days. This also createsa doubton thetestimony of PW-5. What happened ^ifter the alleged inciderit on 6.4.88till the death of deceased on t .^" ——'<B^ | ^^ ..vi:"L,'e!s' ® Cruninal ADpealNo. 1592 of 1995 8.4.88 is not clear from the material on record. TheSessions Judge on due appreciation of the entire evidence and in light of the above broad features of the case, did not rely on the testimonies of these two witnesses and has acquittedrespondents of the charges framed against them. (11) 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. ,/ / ~ (12) In V.A/. Ratheesh -Vs.- State of Kerala.AIR 2006 SC 2667, T^- ->•: the Suprerae Court held that there is no embargo on the Appellate CQurt reviewing.the evidence upon whichan order of acquittal is based, Generally, the order of acquittal shall not be interfered with becay.Sfe tRe presumption of innocence of the accused is further ^ \'k.' •-,.. . \.A 1ffiw: linni-i'—t i? £ ••^l1-- ^ .:><^ Criminal Aooeal No. 1592 of 1995 strengthened byacquittal. 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 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 Couri: 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 been acquitted, 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 Madhya Pradesh (2002(2} Suoreme 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 unjustrfiably eliminated in the process, it is a compelling reasBn for ihterference. '«». (13) In Ramesh Babulal Doshi -Vs- State of Gujarat (1996) 9 SCC 225,. the Supreme Court said that "While sitting in judgment :A: t •;.^ ;/ Criminal Appeal No. 1592 of 1995 s^ over an acquittal the appellatecourt is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably 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". (14) We have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Judge 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 of appreciation. (15) For the foregoingreasons, 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/- Sunil Kumar Sinha Judge Sdi- . R.N. Chandrakar Judge vatti •»