State Of Chhattisgarh vs Lorik Ram Yadav
2022 Latest Caselaw 6972 Chatt

                                  1

                                                             NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR


                      ACQA No. 237 of 2009
      State of Madhya Pradesh (Now C.G.) Through : P.S.
       Chakarbhata, District Bilaspur (C.G.)
                                                    ---- Appellant
                              Versus
     1. Lorik Ram Yadav, S/o Arjun Lal yadav, aged 28 years, R/o
        Sakri, P.S. Chakarbhata, District Bilaspur (C.G.)
                                                 ---- Respondent

For Appellant - Mr. Avinash K. Mishra, G.A.

For Respondent -        None


              Hon'ble Smt. Justice Rajani Dubey
                         Order on Board
21.11.2022

1. The present acquittal appeal has been fled by the State against the judgment dated 27.04.1998 passed in Criminal Case No.36/96 by the learned Judicial Magistrate First Class, Bilaspur (C.G.), whereby the learned trial Court acquitted the accused/respondent herein from the charges punishable under Sections 294, 506-B of IPC for want of evidence and Sections 354 & 323 of IPC by extending beneft of doubt.

2. Brief facts of the case are that on the date of incident i.e. on 28.02.1996 at about 7.00 PM, when prosecutrix, after completing her work, was returning to her house, at the relevant time, the accused/respondent entered her house holding club in his hand, abused her in the name of mother and sister & tried to outrage her modesty. Thereafter, the accused/respondent extended life threat if she discloses the incident to any one. Further case of the prosecution is that when the prosecutrix screamed, Bhukhaiya Bai and her son came to the spot and by

seeing them the accused/respondent fed from the spot. On the next day of incident, FIR (Ex.P/1) was lodged by the prosecutrix and ofence was registered against the accused/respondent.

3. So as to hold the accused/respondents guilty, the prosecution has examined 07 witnesses. Statement of the accused/respondent was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

4. The trial Court after hearing counsel for the respective parties and considering the material available on record has acquitted the accused/respondent as mentioned in para-1 of this judgment. Hence, this acquittal appeal.

5. Learned counsel for the applicant/State submits that the trial Court has erred in law in acquitting accused/respondent though the complainant/prosecutrix (PW/1) has categorically stated in her examination against accused/respondent, but the learned trial Court has wrongly interpreted and disbelieved the evidence of prosecutrix (PW/1). Learned State counsel further submits that Dr. C.K. Singh (PW/7) has also supported the case of the prosecution and proved his report, which shows that on the date of incident, the complainant/prosecutrix sustained injuries. Thus, the impugned judgment of acquittal being illegal and bad in law, is liable to be set aside and the accused/respondent is liable to be held guilt.

6. Despite service of notice, no one appeared on behalf of accused/respondent.

7. Heard learned counsel for the State and perused the record.

8. While going through the order-sheets and ofce notice, the ofce note dated 22.12.2009 shows that the record

of the criminal case has already been destroyed. Learned State counsel has fled certifed copy of the statement of prosecutrix (PW/1) and two other witnesses namely Tribhuwan (PW/3) and Dashrath Lal Vishwakarma (PW/4), son and husband of the complainant/prosecutrix, respectively.

9. While dealing with the issue where lower court record went missing and eforts for reconstruction of record went in vain, the Division Bench of High Court of Allahabad in the matter of Sita Ram & Ors. V. State1, held in para 11 as under :-

"11. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate Court to afrm the conviction of the Appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time gap between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it could not cause undue strain on the memory of witnesses. Copies of First Information Report, statements of witnesses u/s 161 of Code of Criminal Procedure, reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter

(1981) SriLJ 65

comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of First Information Report and statements of witnesses u/s 161 of Code of Criminal Procedure and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State."

10. The Supreme Court in the matter of Babu V. State of Kerala2, has laid down the principle to be followed in an appeal against the acquittal under Section 378 of the Cr.P.C. and it has been held that Appellate Court should not ordinarily set aside acquittal in a case where two views are possible, though the views of Appellate Court may be the more probable one and held in para 12 as under:-

"..12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial Court. The appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a fnding as to

(2010) 9 SCC 189

whether the views of trial court were perverse or otherwise unsustainable. The appellate Court is entitled to consider whether in arriving at a fnding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court."

11. Thereafter, recently in Anwar Ali & Another v. State of Himachal Pradesh3, Supreme Court has reviewed its earlier decisions including Babu (supra) reiterating the principles laid down therein.

12. Reverting back to the facts of the case, in the light of judgment of Supreme Court in the matter of Babu (supra) and Anwar (supra) dealing with the scope of appeal against acquittal and further considering the fact that the lower Court record has been destroyed and merely on the basis of copies of statement of prosecutrix (PW/1), her son Tribhuwan (PW/3) and husband Dashrath Lal Vishwakarma (PW/4), who were at all not present at the place of incident and there is contradiction and omission in the statement of Prosecutrix (PW/1), this Court is of the considered opinion that the learned trial Court is absolutely justifed in not believing the evidence of complainant/prosecutrix (PW/1) and further justifed in relying upon other evidence of prosecution to record the judgment of acquittal. I do not fnd any illegality in the order impugned acquitting the accused/respondent particularly when there is a legal settled position that if on the basis of record two conclusions can be arrived at, the one favoring the accused has to be preferred. Even otherwise, the prosecution thus has utterly failed in proving its case beyond reasonable doubt and the trial Court has been fully justifed in recording the fnding of

(2020) 10 SCC 166

acquittal which is based on proper appreciation of evidence available on record. Furthermore, in case of appeal against the acquittal the scope is very limited and interference can only be made if fnding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and considering the irrelevant ones. In the present case, no such circumstance is there warranting interference by this Court

13. Accordingly, the acquittal appeal is dismissed at the admission stage itself.

Sd/-

(Rajani Dubey) JUDGE pkd