Chattisgarh High Court

State Of Chhattisgarh vs Ashok And Ors on 3 February, 2023

                                     1

                                                                       NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                    Judgment reserved on : 16/11/2022
                    Judgment delivered on : 03/02/2023
                          ACQA No. 152 of 2012
      State of Chhattisgarh,     Through:    District   Magistrate,   Korba,
       Chhattisgarh.
                                                               ---- Appellant
                                  Versus
     1. Ashok S/o Baishakhu Ram Yadav Aged About 32 Years R/o
        Madvarani, Chowky Urga, At Present R/o. - Railway Station Korba,
        P.S. And District - Kotwali Korba, Chhattisgarh.
     2. Bhagwat S/o Dilharan Panika Aged About 29 Years R/o Mudapara,
        P.S. And District - Korba, Chhattisgarh.
     3. Mannudas S/o Ramdas Manikpuri Aged About 40 Years R/o
        Sanjaynagar Korba, District : Korba, Chhattisgarh.
     4. Bhagirathi S/o Ghansiram Paikra Aged About 31 Years R/o Sitamani,
        Railway Station Korba, District : Korba, Chhattisgarh.
     5. Panchram S/o Ramsingh Yadav Aged About 31 Years R/o Madvarani,
        Chowky Urga At Present - R/o - Mudapar Korba P.S. And District -
        Korba, Chhattisgarh.
                                                           ---- Respondents

For Appellant/State              : Mr. Alok Nigam, G.A.
For Respondents No. 1 to 5       : None, though notice has been served.


                   Hon'ble Smt. Justice Rajani Dubey, J.

C A V Order

1. This acquittal appeal has been preferred by the appellant/State against the judgment dated 22.03.2011 Passed by the learned Court of Sessions Judge, Korba, (C.G.), in Sessions Trial No. 65/2009 by which respondents herein has been acquitted from the charges punishable under Section 399 & 402 of IPC and Section 25(1)(B) of Arms Act.

2. The case of the prosecution, in brief, is that on 18.02.2009, sub- inspector R.K. Patre, Kotwali Korba was on night duty, during patrolling he received information from an informer that a few persons are assembled with deadly weapons in order to commission of crime near the Sitamadi Imliduggu Railway Station. On the said information he moved towards spot along with the witnesses and after reaching the spot a raid was conducted and the accused persons have been caught and interrogated. During the interrogation of the accused, from Bhagwat Panika one Iron Katta with a

plastic handle, from accused Ashok Yadav one knife, from accused Mannu Das one Iron rod, from Bhagirathi one iron cutting blade and from accused Panchram one iron rod had been seized and a seizure memo was prepared, thereafter, FIR had been registered. Statements of the witnesses had been recorded, a spot map was prepared, accused persons had been arrested and after completion of the investigation final charge sheet was produced before the competent Court and charges were framed under Section 399 & 402 of IPC & Section 25(1)(B) against the accused persons namely Ashok & Bhagwat and under Section 399 & 402 of IPC against the accused persons namely Mannudas, Bhagirathi and Panchram.

3. So as to hold the accused/respondents guilty, the prosecution has examined as many as 2 witnesses. The statement of the accused/respondents was also recorded under Section 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded innocence and false implication in the case.

4. After appreciating the oral as well as documentary evidence, the learned trial Court found that the prosecution has failed to prove its case beyond reasonable doubt and by the impugned order dated 22.03.2011, acquitted the accused/respondents from the aforesaid charges. Hence, this appeal.

5. The learned State counsel submits that the learned Court below has erred to make this observation that the accused Bhagwat was found in possession of a country-made pistol (Katta) which was not examined by the Armorer. This finding of the learned trial Court is erroneous and against the case of the prosecution because as per the seizure, memo vide Exhibit-P/2 one knife has been seized from the accused Bhagwat Panika and from accused Ashok one knife has been seized vide Exhibit-P/1 which comes under the provision of Arms Act and therefore the order passed by the learned trial Court is erroneous and bad in law and liable to be set aside. He next submits that the learned Court below erred to disbelieve the case of the prosecution and come to the conclusion on the basis of minor technicalities and giving weightage to omissions and contradictions and overlooking the case of the prosecution. The learned trial Court while passing judgment has overlooked the material produced by the prosecution and wrongly acquitted the respondents/accused persons. Hence, this appeal may be allowed.

6. No one appeared on behalf of the respondents, though notice has been served.

7. Heard learned counsel for State/appellant and perused the material available on record including the impugned judgment.

8. The prosecution has examined only two witnesses before the trial Court namely Santram (PW-1) and complainant/investigating officer - R.K. Patre (PW-2). PW-1 (Santram) has not supported the case of the prosecution before the learned trial Court and has denied his signature on Exhibits - 1, 2, 3, 4 and 5 and stated that he was not gone anywhere with the police persons. The prosecution declared this witness as hostile and cross- examined him but he denied all suggestions of the prosecution. Investigating Officer (R.K. Patre) (PW-2) has stated against the accused persons but in his cross-examination, he admitted that all seizure memo was prepared before some witnesses but the prosecution has not examined any other witnesses except PW-1 who has not supported the case of the prosecution before learned trial Court. The learned trial Court has also found in para 16 that in this case complainant and investigating officer is the same person and without corroboration of any other witnesses his statement is not reliable and has given the benefit of the doubt to the accused persons.

9. Hon'ble Supreme Court in the matter of Muralidhar @ Gidda & Another vs. State of Karnataka, reported in (2014) 5 SCC 730, has held in paras 11 and 12 as under:-

11. As early as in 1952, this Court in Surajpal Singh v. State , [AIR 1952 SC 52] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Code of Criminal Procedure observed: (AIR p.54, para 7)

"7.........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

12. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

(iv) Merely because the appellate court on re-appreciation and re- evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

10. The finding recorded by the learned Sessions Judge acquitting the respondents from the offence punishable under Sections 399, 402 of IPC and Section 25(1)(B) of the Arms Act is based on material available on record. This Court finds no illegality in the order impugned acquitting the respondents particularly when there is a settled legal position that if two views are possible, the appellant Court should not interfere with the judgment of acquittal, even otherwise, the prosecution thus has utterly failed in proving its case beyond reasonable doubt and the trial Court has fully justified in recording the finding of acquittal which is based on proper appreciation of evidence available on record.