s^ •1\t, HIGHCOURtOR^HHftTTI^ARH^-BUJ^PUR DIVISIONBENCH CORAM: HQN'BLE SHRI RAJEEyGUPTA, C.J. & HON'BLE SHRISUNIl.kUMAR SlNHA, J. ApDlicant Non-aDDlicants Cr.M.P.No.313of2009 Stateof Chhattisgarh, Through District Msigistrate, Bilaspur, District - Bilaspur Versus 1 Gopal Sahu, S/o Tlrith Ram Sahu, Ag^labout 35 years 2 Shivdayal Sahu, S/o Bhulau Ram Sahu, Aged about 38 years Both are R/o Khapari, PS Pathariya, District- Bi!aspur(CG) ApDlication fbrarantofleave toappealU/S 378(31 and MemorandsirnofAbDeaSu/S 378(11 ofCriminalWocedure Cocte.1973 Present : Shri Sudhir Bajpayi, Deputy Govemment Advocate fortheState/petitioner. Order {SthMarcM010) The following order of the Court was passed by Rajeev Gupta, C.J. Shri Sudhir B^pai, leamed Deputy Govemmerrt^Advocate is heard on t.A. No.01/2009, an apptication for condonation of the delay in filing tMe petition unaer Section 378 (3) of Cr.P.C. 2) On due consideration ofthe submi^tons®fleamed Deputy GovemmerrtAdvocateahdthe^roundsfakenintheaRRliisaUon^we are satisfied that the petitioner/State has SUCG^K:) in showing 2 sufficient cause for the delay In filing the petition under Sesrtion 378 (3) of Cr.P.C. 3) I.A. No.01/20C©,therefore, is allowed and the delay <rf 38 days In flllng the pet'rtion under Section 378(3) of Cr .P.C. is hereby condoned. 4) Shri Sudhir Bajpai, leamed Deputy Govemment Advocate is heard on the question of grant of leave to appeal agalnst the acquittal of respondents/accused pereons Gofal Sahu and Shivdayat Sahy. 5) Police Mungeli, District Bilaspur after completton of the investlgation of the ease registered on the report of one Malikram, charge-sheeted respondents/accused persons Gopal Sahu and Shivdayal Sahu for the atleged commission of the offenees punishabte under Sections 302 readwith Section 34 and 120-Bof the tndian Penal Code on the SKCussrtton of thelr havlng committed murder of deceased Janak Ram in the night of 19.10.2007. 6) Respondents/accused persons Gopat Sahu and Shivdayal Sahu abjured their guilt and pleaded false Irnplication to the charges framedlay the trial Court under Sections 302 read with Section 34 and 120-B of the tndlan Penal Code. 7) At the trial, the above charges against respondents/accused persons Gopal Sahu and Shivdayal Sahu were sought to be proved on theevklence of R/V-1 Rambagas Sahu, PW-2 Kuntl Bai, n/V-3 Chaltram Sahu, PW-4 Dhaniram Sahu, PW-5 Sakratdas, PW-6 Patwari Rishlraj, PW-7 Gonstabte Suritram, PW-8 Coiistabte Manharan Singh, PW-9Malikram Khute, PW-tO Daresiram Yadav, '^ R/V-11 Shankartal, PW-12 Prabhakar Yadav and PW-13 Dr.D.R. Singraul and PW-14 Suresh Praaid Bhagat. 8) The triat Court on a close scruttny @f the entire evidence Isd bytheprosecutlonatthetriatfoundthattheproswi.rttonevidence felt short of establishing the above charges aggmst ttie a»sused persons. The trial Court, therefore, acquitted Tes(»nctantsfacci®ed persons Gopal Sahu and Shlvdayal Sahu vide impugned judgment dated31.01.2009. 9) Shri SudhirBajpal, leamed Deputy Government Advoeate vehemently argued that the trial Court has erred In not glwing due weight to the evidence ted by the prosecutlon at the trial Tor establishlng the incriminating cireumstences against the respondents/accused persons. 10) Adm'rttedly, there is no eywfltness accountavailabte in the case to connect respondents/accused persons Gopal Satau and Shlvdayal Sahu with the alleged commission of murder of deceased Janak Ram. 11) The entire proseeution case agalnst ftie accused pereons at thetriatwasfoundedonthefollowlnglncriminattngclrcumstenGes: (i) Extra judiclat confession of accused Gopat Sahu before PW-9 IVtalikram, PW- 11 Shankarlat and one Rajaram (not examined); (ii) Seizureof Lathi (weapon of offiwice) at the instanee of accused ©opat Sahu which was found btood stalned on chemical examination; (ili) Motive. 1 Ite 4 12) So far as the flret all^ed incriminatlng eircumstance against the accused persons relatlng to extra judicial confession said to have been made by respondenVaccused GopalSahu Is eoncemed, the triat Court found that ofthe three witnesses.Rajarare was not examined by the prosecution at the trial. PW-9 Malik Ram in hls deposition before the Court did not support the prosecution on the point of extra judiclal confession. The remaining witness on the point i.e. PW-11 Shankariat In his evidence before the Court stated that respondenVaccused Gopal Sahu made extra judicial confession in presence of the pottee personnel. 13) Inthis state of evidence, we do not find any fault in the approach of the triat Court in discarding the prosecution evidenee about the atlegedextrajudlcialconfessionsald to haye been made by respondent/accused Gopat Sahu. 14) The alleged seizure of lathi at the instance of respondent/accused GopalSahu as weapon of offence also is not of much evidentiary vafue, as admittedly, the ^rotegi^ report produced before the trtal Court did not esteblish the blood stains on the said laffilwere of human origln. 15) Now, the lone remaining circumstance about some motive on the part of the accused pereons in causing deerth ef deceased Janak Ram even if found proved wiil not by itself be sufflcaent to record conviction of the accused persons on the capital charge of murder. 16) For the foregoing reasons, we do not find any ground warranting interference in thls appeal againstacquittal. A7 ^f &«2S SS2?" -1" 17) Mere possibitity of another view on the prosecution evidence will not byitself be a sufficient ground for interference in an appea againstacquittal. 18) The petition fited under Section 378(3) of Cr.P.C., ttierefore, fails andis hereby dismissedsummarily. subbu Sd/- ChiefJustice Sd/t SunilKumarSlnha -^ Judge -v^ .- -/- ' <