Gracy Kisku @ Gresi Kishi @ Gersi ... vs State Of Jharkhand
2023 Latest Caselaw 2893 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Appellate Jurisdiction)

                     Acquittal Appeal No. 97 of 2018

Gracy Kisku @ Gresi Kishi @ Gersi Kisku, aged about 40 years,
w/o Antreyas Tudu, r/o village-Sirsia, PO & PS-Giridih(M), District-Giridih
(Jharkhand)                                               ...... Appellant
                                Versus
1.     State of Jharkhand
2.     Amrit Rana, aged about-70 years, s/o late Jagi Rana
3.     Jagiya Devi @ Fuduwa Devi, aged about-65 years, w/o Amrit Rana
4.     Binod Rana, aged about-40 years, s/o Amrit Rana
All resident of Village-Kargalo, PO & PS-Bengabad, District-Giridih
                                                         ...... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
       HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant          : Mr. Vishal Kumar Trivedi, Advocate
For the State of Jharkhand : Mr. Pankaj Kumar, Public Prosecutor
                               --------------
                                                   JUDGMENT

16th August 2023 Per, Shree Chandrashekhar, J.

I.A No.9860 of 2018

This interlocutory application has been filed by the appellant who is the informant of the case seeking leave to challenge the judgment of acquittal dated 29th June 2018 passed by the District and Additional Sessions Judge No.-IV, Giridih in Sessions Trial No.309 of 2007.

2. In view of the amendment in section 372 of the Code of Criminal Procedure, I.A No.9860 of 2018 is allowed.

Acquittal Appeal No. 97 of 2018

3. This acquittal appeal has been filed by Gracy Kisku who is the informant of Bengabad PS Case No.33 of 2007 to challenge the judgment of acquittal in Sessions Trial No.309 of 2007.

4. Amrit Rana, Jagiya Devi @ Fuduwa Devi, Binod Rana and Kubi Rana were made accused in Bengabad PS Case No.33 of 2007 on an allegation that around 5:00 PM on 15th April 2007 they mounted murderous assaults on Lili Baski due to which she died. Gracy Kisku gave her written report before the Officer-in-Charge of Bengabad PS stating that the accused

have assaulted and committed murder of her mother due to a long standing land dispute. During the investigation, a Final Form was filed on 31st May 2004 on the ground of mistake of facts. Later on, on 21st July 2004 the informant filed protest-cum-complaint petition on which cognizance was taken by the Chief Judicial Magistrate at Giridih and finally after the inquiry under section 202 of the Code of Criminal Procedure summons was issued to Kubi Rana, Fudwa Devi, Amrit Rana and Binod Rana vide order dated 17th March 2005 requiring them to face the trial under section 302/34 of the Indian Penal Code. In course of the trial, Kubi Rana passed away and thus Sessions Trial No.309 of 2007 continued only against the other three accused who have finally been acquitted by the judgment dated 29th June 2008.

5. The learned trial Judge referred to the prosecution evidence and has recorded a finding that PW1, PW2 and PW3 who were projected as eye witness failed to tender cogent and convincing evidence and they were not reliable and trustworthy witnesses. The trial Judge has taken note of the material contradictions in their statements and discrepancies in the evidence of PW1, PW2 and PW3 with reference to the medical evidence tendered by Dr. Ram Swaroop, PW6.

6. The learned Sessions Judge has held as under:

"18. On careful scrutiny of evidence of prosecution witness, I find that PW 4, PW 5, PW 7 and PW 8 are not eye witness of the occurrence and they have stated getting information from others about murder of Lili Baski by accused persons. Therefore, their evidences are inadmissible on the point of manner of assault and complicity of accused persons. I further find that PW 1, 2, and 3 have projected them as eye witness of the occurrence but there are material contradictions in their statement. On scrutiny of evidences of PW 1, 2 and 3, I find that they all have arrived at the place of occurrence on hearing alarms and seen the occurrence. PW 1 has deposed that accused persons have fisted and slapped to the deceased and further trashed her on the ground and killed her by pressing her neck but PW 2 has deposed that accused persons have assaulted to the deceased by using lathi and danda.

PW 2 has stated that all accused persons were holding lathi and danda. In his entire evidence PW2 has not stated about fisting, slapping and pressing neck to the deceased rather he has stated that accused person were holding lathi and danda and giving blows by using lathi and danda. PW 3 has deposed that accused persons have assaulted to the deceased by lathi and kicked her. I find further that PW 1 has deposed that accused persons have killed to the deceased on the place of occurrence by pressing her neck but PW 2 has deposed that accused persons after assaulting to the deceased took her to her house by holding her and deceased died there. PW 3 has stated a different story and according to this witness accused persons have assaulted brutally to Lili Baski and killed her and thereafter they thrown her dead body towards the house of the deceased. I further find that PW 1 in her evidence has stated that place of occurrence was mid of main road from

village to Bengabad and there are roads form all sides and vehicles runs in the said road but PW 3 has stated the place of occurrence bounded by west- Dam, east-Akasiya tree, north-field of Khubi Rana and 29.6.18 south-field of Logen Kisku. PW 2 has deposed that he came near the house of accused and where he found that accused persons were assaulting to the deceased, but PW 2 in cross-examination has not stated house of accused persons in the boundary of the place of occurrence rather he has stated door of the house of the deceased in the west and south boundary of the place of occurrence. I further find that PW 1 has stated that PW 2 and PW 3 were arrived in the place of occurrence after 1 hrs but PW 3 has deposed that she was arrived first at the place of occurrence and thereafter PW 1 and 2 were arrived. PW 2 has deposed presence of 50 villagers and PW 3 has stated a big crowd of about 100 villagers on the place of occurrence whereas PW 1 has stated that except informant, PW 2, PW 3 and PW 5, none had come on the place of occurrence. PW 1 has stated many injuries on the body of the deceased but PW 3 has stated only 3 injuries to the deceased. PW 1 has stated that blood was oozing out from the injuries and PW 3 has stated that blood was oozed out from the ear and from the chest of the deceased. PW 3 has stated that blood was oozed on the ground also but PW 2 has stated that no blood was oozed out from injuries and there was only a black spot and uprooted skin on the body of the deceased. Therefore, I find serious contradiction in the statement of prosecution witness, PW 1, PW 2 and PW3. Therefore, in view of above contradictions, it cannot be proved that these persons are eye witness of the occurrence.

19. I further find that PW 1 to PW 3 and PW 5 have stated that informant went to the police station in the evening of the same day and has registered the case but I find that the FIR of this case is registered on the next day. I further find that informant (PW 8) has stated going to police station on the same day and PW 1 to PW 3 have stated going to police station along with the informant. If PW 1 to PW 3 had seen the occurrence of assault to the deceased by accused persons, then informant must mention the said fact in the FIR but I find that in the FIR it has not been mentioned that accused persons have assaulted and killed to the deceased in presence of PW 1 to PW 3. The informant in her evidence has admitted clearly that she has registered FIR and further filed complaint case against accused persons on the basis of mere suspicion. In FIR (Ext.2) it has been mentioned that the deceased had gone towards house of accused persons where some altercation was taken place and then she returned to house and later on, she found dead. This statement of FIR goes to show that there was no information to the informant about committing assault to deceased by accused persons at the time of registration of FIR. This fact also create serious doubts in the story of prosecution.

20. On perusal of evidence of PW 6 and post-mortem report Ext. 1, I find that blackish blues color was found on the chest at sternum area of the deceased but on dissection, internal organs were found intact. The medical officer has found chest rib intact, hence, there was no corresponding internal injury to the deceased of the blackish blue color spot. The medical officer have found abrasion and scratch in the finger and the arm of the deceased and in cross-examination the medical officer have denied any serious injury to the deceased. Medical officer could not ascertain the exact cause of death. Therefore, I find that prosecution could not be able to prove homicidal death of the deceased in this case.

21. In view of above discussions, I find that prosecution remained fail to prove homicidal death of the deceased and further evidences of prosecution witnesses are not reliable on the point of assault to the deceased and on the point of complicity to the accused persons in the occurrence therefore, accused persons cannot be held guilty for the charge of murder of the deceased in this case.

22. Thus, I find that the prosecution remained fail to prove its case beyond all the reasonable doubts and accordingly, accused persons namely Amrit

Rana, Jagiya Devi @ Fuduwa Devi and Binod Rana are acquitted from the charges levelled against them in this case. They and their bailors are discharged from the liabilities of their respective bail bonds."

7. Mr. Vishal Kumar Trivedi, the learned counsel for the appellant has referred to the judgment in "Chandrappa v. State of Karnataka" (2007) 4 SCC 415 to submit that the present acquittal appeal comes within the forecorners of the parameters laid down by the Hon'ble Supreme Court for entertaining an appeal against the judgment of acquittal. The learned counsel for the appellant would submit that the reasonings of the trial Judge to disbelieve the ocular evidence of PW1, PW2 and PW3 are unreasonable and that is a ground for re-appreciating the evidence produced in Sessions Trial No.309 of 2007.

8. In "Chandrappa" the Hon'ble Supreme Court has held as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

9. The powers of the High Court under section 378 of the Code of Criminal Procedure is very wide and acting as an appellate Court the High Court may reappreciate the evidence, record its independent findings and may come to a different conclusion. The provisions under the Code of Criminal Procedure do not put any limitation over the powers of the

appellate Court in dealing with the appeal against acquittal - however, as a rule of prudence certain restrains have been prescribed.

10. The learned counsel for the appellant has taken us extensively through the evidence of PW1, PW2, PW3 and PW6 and submitted that through these witnesses the prosecution has established that Lili Baski has died on account of beating and assault by lathi-danda by the accused persons.

11. PW1 is a neighbour of Gracy Kisku and on hearing hullah she reached the place of occurrence. She has deposed in the Court that Kubi Rana, Amrit Rana, Binod Rana and Khuduwa Rana were abusing and slapping Lili Baski till they were tired. She has further stated that the accused persons thrashed Lili Baski on the ground and throttled her to death. In the cross-examination, PW1 admitted that Gracy Kisku, Kailash Dulal and Sunita Kumari arrived at the place of occurrence after about one hour. She has further admitted that there is no other neighbouring house around the house of Gracy Kisku. She has stated that there are other persons including her husband and widowed daughter-in-law in her house. The defence seems to have extracted this statement in her cross-examination to suggest that the prosecution has suppressed other material witnesses.

12. Mr. Vishal Kumar Trivedi, the learned counsel for the appellant has drawn our attention to the findings of the doctor (PW6) that clotted blood was found inside the brain of Lili Baski.

13. As PW6, Dr. Ram Swaroop has stated that exact cause of death could not be ascertained and; there was no grievous injury found over the dead body. This is the prosecution evidence that Lili Baski was aged about 56 years as on 16th April 2004. This is also the prosecution's own case that only three injuries including one abrasion and one scratch injury were found on the dead body of Lili Baski. PW6 tendered evidence in the Court that at about 11:30 on 16th April 2004 he conducted autopsy over the dead body of Lili Baski and found three external injuries over her dead body. According to PW6, there were (i) blackish-blueish mark over her chest at sternum area

(ii) abrasion on her right arm of the size of 6"x 4" and (iii) scratch injuries on her right hand over middle finger and right finger of the size of 1" x 1/2". Now even assuming that the prosecution evidence regarding assault upon Lili Baski by the accused persons is correct, to prove the charge of murder

under section 302/34 of the Indian Penal Code the prosecution is under a legal duty to establish that death has been caused on account of the injuries caused by the accused persons. However, as we have noticed hereinabove, PW6 has stated in the Court that the cause of death could not be ascertained.

14. As regards clotted blood found in the brain of Lili Baski, a doubt definitely would arise that it was a result of thrashing of Lili Baski on the ground by the accused persons. But we are conscious that no such presumption can be raised in law and, moreover, by raising such a presumption the judgment of acquittal in Sessions Trial No.309 of 2007 cannot be reversed. We further find that the statement of PW1 that Lili Baski was killed by throttling is not supported by the medical evidence. We are not even taken to any portion of medical jurisprudence that a person may die on account of slapping. This is a case in which what can be held proved is that the accused persons were found slapping Lili Baski. On the date of judgment, Amrit Rana was aged about 70 years and Jagiya Devi was aged about 65 years and this definitely is a fact which is bearing in our mind that they could not have mounted such assault upon Lili Baski which has caused her death. Now this is too well-settled a proposition that the appellate Court shall not interfere with the judgment of acquittal wherever two views are possible on appreciation of the materials on record.

15. In view of the aforesaid discussions, Acquittal Appeal No.97 of 2018 is dismissed.

16. Let the lower Court records be transmitted to the Court concerned, forthwith.

17. Let a copy of the Judgment be transmitted to the Court concerned.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) High Court of Jharkhand, Ranchi Dated: 16th August 2023 Sudhir/NAFR