The State Of Madhya Pradesh vs Dharmendra @ Lallu Rawat
2021 Latest Caselaw 694 MP

                                    1           M.Cr.C.No.38530/2020

           HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR


                        DIVISION BENCH


                   JUSTICE SHEEL NAGU
                            &
                  JUSTICE ANAND PATHAK


     MISCELLANEOUS CRIMINAL CASE NO.38530/2020


                   State of Madhya Pradesh
                             Versus
             Dharmendra alias Lallu Rawat and others


==================================================
Shri Aditya Singh Ghuraiya, learned Public Prosecutor for the
applicant/State
==================================================

                           ORDER

{Passed on 15th day of March, 2021}

Per Justice Anand Pathak, J.:

1. This is an application by State seeking leave to appeal under

Section 378 (3) of the Code of Criminal Procedure, 1973 against

the judgment dated 28-05-2020 passed by Third Additional

Judge to the Court of First Additional Sessions Judge, Shivpuri

whereby the respondents/accused, namely, Dharmendra alias

Lallu Rawat, Narendra Singh Rawat, Ummed Singh Rawat,

Manu alias Man Singh and Aparval Rawat, have been acquitted

by the trial Court in S.T. No.301/2014 for offence under

Sections 147, 148, 364 (two counts), 302 read with 302/149

(two counts) and 201 (III) (two counts) of IPC.

2. As per the case of prosecution, on 26-08-2014 complainant

Rameshwar (PW-11) went to Shivpuri to purchase Distribution

Panel (D.P.) by tractor and deceased Karan Singh and Sanjay

Rawat also reached to Shivpuri on a motorcycle. Thereafter,

complainant Rameshwar left to his village with the said D.P. and

both the deceased stayed there to purchase wire for the D.P. and

thereafter, in the way, they overtook the complainant's tractor

near Piparsaman village.

3. It is further alleged that when complainant Rameshwar (PW-11)

reached near Chentawar bridge, he saw that one Indica Car

driven by one of the accused, namely, Dharmendra dashed the

motorcycle of the deceased due to which they fall down,

thereafter accused persons wielding sticks and iron rods, came

out from the car and opened blows of the sticks and iron rods.

Due to fear, complainant Rameshwar (PW-11) rushed to his

village and informed the family members but the accused

persons took the deceased persons along with them in the said

car. Thereafter, on search, dead bodies were recovered from the

field of Kanhaiyalal at 10-11 pm in the night.

4. FIR was lodged on 27-08-2014 at about 5:15 am. Thereafter

investigation started, relevant articles were seized by police

from the spot and dead bodies were sent for post mortem and

after due investigation, charge-sheet was filed before the

competent Court of law and the case was committed to the

Sessions Court, Shivpuri.

5. Before the trial Court, points for consideration were whether the

death of deceased persons namely, Karan Singh and Sanjay

Rawat was homicidal in nature or not and whether the accused

persons by forming unlawful assembly on 26-08-2014 at 6-7

pm, committed murder of Karan Singh and Sanjay Rawat. After

considering the relevant documents and evidence in this regard,

trial Court acquitted the respondents/accused. Therefore, this

leave to appeal has been preferred along with appeal memo so

as to challenge the order of acquittal.

6. It is the submission of learned counsel for the applicant/State

that Dr. Neetraj Gaur (PW-16) performed the autopsy of the

deceased persons vide Ex-P/33 and P/34 and he described the

injuries sustained by both the deceased. According to him, they

sustained injuries on vital parts of the body and due to excessive

bleeding they succumbed to the injuries. Further he opined

about nature of death that it is homicidal in nature. Thus, the

trial Court erred in not giving weightage to the evidence of this

witness. Complainant Rameshwar (PW-11) who was the sole

eye-witness of the incident remained firm and duly supported

the story of prosecution. Version of complainant was duly

supported by Halke alias Shivnararyan (PW-1) that Rameshwar

(PW-11) and deceased persons had gone to Shivpuri to purchase

D.P. and when the deceased persons were returning on a

motorcycle, their motorcycle was dashed by Indica car and they

were beaten by sticks and iron rods, therefore they succumbed

to the injuries. It is further submitted that other material

prosecution witnesses have also supported the story of

prosecution. Thus, prayed that the trial Court erred in recording

acquittal in favour of accused persons and caused illegality.

7. Heard counsel for the applicant/State and record perused.

8. Through this application applicant/State is seeking leave to

appeal. The case in hand pertains to double murder but the fact

remains that whether the death was homicidal in nature or not.

In this regard, Dr. Neetraj Gaur (PW-16) who performed

autopsy of both the deceased persons, is having material

bearing. The said witness in his cross-examination categorically

admitted that the injuries sustained by both the deceased may be

caused in a road accident. Further on specific query asked by

the Presiding Officer that why in the post mortem report, nature

of death was mentioned by him as homicidal, in turn, the said

witness stated that since the constable Shaitan Singh who came

with the requisition memo stated that it is a matter of murder,

therefore, he mentioned the nature of death as homicidal in

nature. Further, the nature of injuries sustained by the deceased

particularly one burn injury, takes the case to different

perception i.e. accidental in nature. Thus, the trial Court did not

commit any error in reaching to the conclusion that the nature of

death was not homicidal in nature.

9. The car which was allegedly used in the incident belonged to

one Rajkumar Sharma (PW-12) who in his statement

categorically deposed that he did not know the accused

Dharmendra (who allegedly shown to be the driver of the said

car) and further stated that due to breakdown of said car (Tata

Vista), he left it near Adiwasi Basti, Rajgarh and thereafter since

the said car was seized by the police, therefore, he took the said

car on Supurdaginama from the trial Court. He further denied

the factum of knowledge of the incident. Kanhaiyalal (PW-7)

in whose field, dead bodies of the deceased persons were

recovered also do not support the story of prosecution and

turned hostile.

10. The trial Court after taking into consideration all the

documentary as well as oral evidence has rightly come to the

conclusion that it is highly improbable that a person

(complainant) whose son and brother were being beaten by

some persons with the help of sticks and iron rods and he rushed

to his house because of fear and did not raise alarm midway.

Ramsakhi (PW-4) who was also projected by the prosecution as

eye-witness, in her cross-examination did not support the

factum of dashing the motorcycle of deceased persons by car.

Chemical analyst Assistant Sub Inspector Nasir Husain (PW-10)

after examination of vehicles in question, opined that the

accidental marks over the motorcycle and car may be caused

intentionally. Further FSL report Ex-P/42 also do not

corroborate with the prosecution story of dashing of motorcycle

by car and beating the deceased persons with sticks and iron

rods.

11. Guddi Bai (PW-2), Hakim (PW-3), Bharat Singh (PW-5),

Kanhaiyalal (PW-7) from whose field dead bodies were

recovered as well as Rajkumar (PW-12) the car owner, all; did

not support the story of prosecution and declared hostile. There

are material omissions and discrepancies exist in the statements

of witnesses. Thus, the prosecution failed to prove that nature of

death was homicidal in nature and the accused persons on the

fateful day committed murder of the deceased namely, Karan

Singh and Sanjay Rawat.

12. It is oft repeated that graver the charge is, greater should be the

proof required, to bring home the analogy that till the charges

are proved beyond reasonable doubt on the basis of clear,

cogent, credible or unimpeachable evidence, the question of

indicting or punishing the accused does not arise. Trial Court

has rightly appreciated the necessary contours of the

controversy and thereafter passed a reasoned judgment

recording acquittal in favour of accused persons.

13. It is settled principle of law that if the trial Court after due

appreciation of the evidence comes to the conclusion about the

finding of acquittal then normally if the finding is not perverse,

this should not be interfered with by the Appellate Court. For

this, reliance can be placed on the decision of the Hon'ble Apex

Court in the case of Chandrappa vs. State of Karnataka 2007

AIR SCW 1850, wherein the Hon'ble Apex Court laid down the

legal principles to entertain the appeal against acquittal and held

as under:-

"39. From the above decisions, in our considered view, the following general principles regarding powers of 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 question 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 emphasize 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 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".

14. In the case of Gamini Bala Koteswara Rao v. State of Andhra

Pradesh AIR 2010 SC 589, wherein it is observed as under:-

"It is open to the High Court to re-appreciate the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" to mean "against the weight of evidence".

15. Trial Court has considered all the aspects in detail and after

considering all the material evidence in this regard found the

case of prosecution as doubtful. The Hon'ble Apex Court in the

case of K. Prakashan Vs. P.K.Surenderan (2008) 1 SCC 258

and T. Subramanian v. State of Tamil Nadu (2006) 1 SCC

401 held that if two views are possible and one view is taken by

the trial Court after due appreciation of evidence including the

demeanor of witnesses then unless sheer perversity or illegality

crept in to the judgment of trial Court scope of interference in

appeal is limited.

16. Considering the same, it appears that no case for interference is

made out. Therefore, leave is declined and accordingly the

application is hereby dismissed. Judgment dated 28-05-2020 of

trial Court stands affirmed.

17. Copy of this order be sent to the trial Court for information.

                                               (Sheel Nagu)                           (Anand Pathak)
                                                  Judge                                   Judge
 Anil*

ANIL       Digitally signed by ANIL KUMAR
           CHAURASIYA
           DN: c=IN, o=HIGH COURT OF MADHYA

KUMAR      PRADESH BENCH GWALIOR, ou=HIGH
           COURT OF MADHYA PRADESH BENCH
           GWALIOR, postalCode=474001,


CHAURASI
           st=Madhya Pradesh,
           2.5.4.20=8512f40a1a9eaa50b6802d06
           8b51dae27e84c266b09d283f0799e67
           cdc7df50f, cn=ANIL KUMAR

YA         CHAURASIYA
           Date: 2021.03.16 07:07:29 -07'00'