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2008 DIGILAW 36 (CHH)

State of Chhattisgarh v. Nankiram Dewangan

2008-02-19

SUNIL KUMAR SINHA

body2008
Judgement ORDER :- Heard. 2. The State has filed this petition under Section 378(3) of the Code of Criminal Procedure for grant of leave to file an appeal against the judgment of acquittal dated 29-9-2006 passed by the Judicial Magistrate First Class, Jangir, in Criminal Case No. 493/2005. 3. The petition is barred by limitation of 405 days and I. A. No. 1 /08 has been filed for condonation of delay in filing the petition. 4. The brief facts are that charges were framed under Sections 294, 506 Part II and 447 of I.P.C. against the respondents on account of an alleged incident which took place at about 2.00 p.m. on 8-11-2001 in village-Pamgarh. The allegations are that they abused the complainant namely Dushyant Kumar (PW-2), threatened him and also demolished the wall, which was being constructed on the directions of the complainant. The complainant claims that the wall was being constructed on his own land and such action of the respondents was punishable under the aforesaid Sections of I. P. C. After conducting trial, the trial Court, on the face of evidence of defence witnesses namely Ram Kumar Keskar (DW-1) and Deendayal Bashkar (DW-2), disbelieved the version of the complainant-Dushyant Kumar (PW-2) as also his father Tikaram (PW-1) and recorded a finding that in fact, the presence of the accused persons at the place of occurrence is doubtful and the accused persons are entitled for acquittal in this case. 5. Learned counsel for the State submits that the trial Court committed an error of law while disbelieving the evidence of PW-1-Tikaram and PW-2-Dushyant Kumar. He takes me to various paragraphs of the judgment passed by the trial Court. The trial Court vide para 19 of the judgment has believed the version of DW-1-Ramkumar Keskar, who was called in the Court along with the attendance register from the office of accused-C. R. Lahare. It has been observed that C. R. Lahare was shown present in the office according to the attendance register (Ex. D. 1C) on 8-11-2001 and the same was also testified by the oral evidence of DW-1-Ramkumar Keskar. Vide para 20 of the judgment, the trial Court has believed the version of DW-2-Deendayal Bashkar, who deposed that on the date of incident i.e. 8-11-2001, accused-Saheblal Madhukar was on tour. He also produced the relevant record of the office marked as Ex. D. 2. Vide para 20 of the judgment, the trial Court has believed the version of DW-2-Deendayal Bashkar, who deposed that on the date of incident i.e. 8-11-2001, accused-Saheblal Madhukar was on tour. He also produced the relevant record of the office marked as Ex. D. 2. It is on the face of this evidence, the trial Court has held that the versions given by the prosecution witnesses, especially PW-1-Tikaram and PW-2-Dushyant Kumar, were not reliable and the presence of the accused persons at the place of occurrence becomes doubtful and the accused persons were acquitted. 6. In the matter of Budh Singh and others v. State of U. P. (2006) 9 SCC 731 : 2006 Cri LJ 2886, the Apex Court held that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing or burden of proof may also be a subject matter of the scrutiny of the Appellate Court. 7. Further, in the matter of V. N. Ratheesh v. State of Kerala, AIR 2006 SC 2667 : 2006 Cri LJ 3634, the Apex Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Apex Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Apex Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Apex Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Apex Court referred to the decision rendered in the matter of Bhagwan Singh and others v. State of Madhya Pradesh (2002 (2) Supreme 567) : 2002 Cri LJ 2024. It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 8. If we examine the facts and circumstances of this case in light of the principles laid down by the Apex Court in the above mentioned cases, firstly, it would appear that the view taken by the trial Court that the prosecution could not establish that the accused persons were in fact present at the place of occurrence on the face of evidence of DW-1-Ramkumar Keskar and DW-2-Deendayal Bashkar, does not appear to be completely unreasonable, hence, the same can be said to be a probable view which may be one of the possible views, which the trial Court has adopted. It is also not a case where interference is required to prevent the miscarriage of justice. It is also not a case where interference is required to prevent the miscarriage of justice. There are also no compelling and substantial reasons to interfere with such finding recorded by the trial Court, when it does not appear to be clearly unreasonable particularly when no relevant and convincing materials have been unjustifiably eliminated in the process of appreciation for arriving at a just and proper conclusion. 9. I do not find any merit in the Leave Petition filed by the State. 10. Accordingly, this Leave Petition filed by the State under Section 378(3) of the Code of Criminal Procedure deserves to be dismissed. 11. So far as I. A. No. 01/2008 is concerned, it has been filed for condonation of delay of 405 days in filing the Leave Petition and the State has not assigned any cogent reason showing sufficient cause for not filing the Leave Petition in time. 12. Therefore, I. A. No. 01/2008 also deserves to be dismissed. 13. In the result, the Leave Petition and I. A. No. 01/2008, both are dismissed. Petition dismissed.