High Court of Chhattisgarh
Case Details
1 AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.07.18 16:03:37 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR ACQA No. 52 of 2011 Judgment Reserved on 14.07.2025 Judgment Delivered on 18.07.2025 • State of Chhattisgarh, Through District Magistrate, Korba, C.G. versus ...Appellant 1. Nemprasad, aged about 35 years, S/o Late Siyaram Patel, 2. Laxmi Prasad, aged about 40 Years, S/o Late Siyaram Patel, 3. Bedprasad (Died & Deleted) as per Honble Court Order Dated 26-11- 2024 4. Arun Kumar, aged about 23 Years, S/o Late Siyaram Patel, All are R/o Nonbirra, Pali, District- Korba (C.G.) ... Respondents For Appellant
Legal Reasoning
: Mr. Ratan Pusty, Government Advocate. For Respondents : Mr. Kishan Kumar Yadav, Advocate on behalf of Mr. Awadh Tripathi, Advocate. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the State/appellant arises out of the judgment dated 13.08.2010 passed by the Additional Sessions Judge, Katghora, Korba, C.G. in Sessions Trial No.61/2006, whereby the learned trial Court acquitted the accused persons/respondents of the charge under Sections 143, 147, 307 read with Section 149 of Indian Penal Code (for short, 'IPC'). 2. Case of the prosecution is that on 15.03.2006 at about 8:30 pm, PW-3 2 Shyam Lal lodged a written report at Police Station Pali, Korba, stating therein that on the same day, at 9:00 am, deceased/co-accused- Jagdev accused him of stealing wood for holi festival and abused him filthily and again at 8:00 pm, deceased/co-accused Jagdev met him, started quarreling with him and threatened him to life and near the house of respondent No.1 Nemprasad, he tried to throw an object like a country- made bomb at him, but PW-1 Chandulal and one Devcharan, who were present nearby, stopped him. After that, he along with PW-1 Chandulal went to the house of co-accused/deceased- Jagdev to inquire about the same where respondents/accused persons along with deceased / co-accused-Jagdev, formed an unlawful assembly sharing common object, threatened him (PW-3) to life and when he (PW-3) tried to escape from there, co-accused / deceased-Jagdev fired at him, due to which, he fell down and sustained injuries on his left side of back. Based on the said information, FIR (Ex.P-7) against the accused persons has been registered for the offence under Sections 143, 147, 307/149 of IPC and Sections 25 & 26 of the Arms Act. 3. During investigation, a spot map was prepared vide Ex.P-19 and PW-3 Shyamlal was sent for medical examination where PW-6 Dr. Pradeep Agrawal examined him and found lacerated wound on left side of the back of victim/PW-3 and opined that injury found on the body of the victim could have been caused by gunshot, however, in his report, he did not mention the specific object that caused the injury. He also noted that when injured/PW-3 was brought before him, he was not in a serious condition and gave his MLC report vide Ex.P-11. PW-6 Dr. Pradeep Agrawal had also recorded the dying declaration statement of the victim/PW-3 vide 3 Ex.P-8. The accused persons were taken into custody vide Exs.P-13 to P-16. Vide Ex.P-1, country-made Katta was seized from PW-1 Chandulal and vide Exs.P-2 to 5, clubs and Lathis were seized from the respondents. Vide Exs.P-17 & P-18, gun pellets and cap removed from the body of victim and blood like stained piece of cloth of victim showing gun shot were seized. 4. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused persons before the concerned trial Court. Accused persons abjured their guilt and prayed for trial. 5. The prosecution in order to bring home the offence, examined as many as 12 witnesses in support of its case and exhibited 21 documents connecting the accused persons to the crime in question. However, in their defence, accused persons have examined none, but exhibited two documents i.e. Exs.D-1 & D-2. 6. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted, the accused persons/respondents herein of said charges leveled against them. 7. Learned counsel for the appellant / State would submit that the trial Court is unjustified in acquitting the accused persons / respondents herein of said charges by recording perverse findings. He would further submit that there is sufficient evidence available on record, particularly the evidence of PW-3 Shyamlal and PW-1 Chandulal, to establish that on the date of incident, respondents along with deceased/co-accused Jagdev, formed an unlawful assembly with the common object of committing the murder of PW-3 Shyamlal and according to Section 149 of IPC, they all are liable for commission of offence and despite that the learned trial Court committed a 4 grave error in acquitting the accused persons / respondents without properly appreciating the evidence on record. Therefore, the impugned judgment of acquittal suffers from perversity and illegality and is liable to be set aside. 8. On the other hand, learned counsel for the accused persons / respondents would support the impugned judgment and submit that prosecution has miserably failed to prove the case against the respondents beyond reasonable doubt and the learned trial Court, after appreciating the evidence available on record, has rightly acquitted the accused persons / respondents of the charges leveled against them. Therefore, the appeal filed by the State/appellant be dismissed. 9. We have heard learned counsel for the parties and perused the material available on record. 10. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- 25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 11. Now, the question is whether the trial Court is justified in acquitting respondents of the charges leveled against them? 12. PW-1 Chandulal has stated in his deposition that on the date of the incident, accused persons, namely Nemprasad, Laxmi Prasad, Bed 5 Prasad, Arun Patel, and Jagdev Patel, in furtherance of their common object, forcibly dragged his brother- PW-3 Shyamlal and took him to the house of the deceased/co-accused Jagdev and there, they assaulted him by hands and fists. At that point of time, accused- Nemprasad instructed the deceased/co-accused Jagdev to fire and kill PW-3 Shyamlal, upon which, the deceased/co-accused Jagdev shot at PW-3 Shyamlal. However, the above fact is not mentioned in the FIR (Ex.P-7). This witness (PW-1) has further stated that he had seen all the accused persons assaulting PW-3 Shyamlal, but the contents of FIR (Ex.P-7) do not disclose that all the accused persons were assaulting PW-3 Shyamlal. This witness has also stated that at the time of the incident, PW-8 Mayaram had snatched the Katta (country-made pistol) from the deceased/co-accused- Jagdev and handed it over to the police, however, on the contrary, the seizure memo (Ex.P-1) shows that the said Katta was seized from PW-1 Chandulal. 13. This apart, PW-3 Shyamlal/injured has stated that on the date of incident, at about 7:30 to 8:00 PM, he along with PW-1 Chandulal was returning home from Nonbirra and when they reached near the house of respondent No. 4 Arun, they saw the accused persons namely Jagdev, Bedprasad, Laxmi Prasad and Nemprasad standing there. Thereafter, they stopped him and his brother PW-1 Chandulal, and started assaulting them by hands and fists. He has further stated that at the time of incident, all the accused persons dragged him and took him inside the house of the deceased/co-accused Jagdev. He has also stated that during scuffle, accused persons Laxmi Prasad, Bed Prasad and Arun had caught hold of him whereas accused-Nemprasad instructed the deceased / co-accused- Jagdev to fire at him over the chest and when 6 he tried to escape, deceased / co-accused- Jagdev shot at him, by which, he sustained injuries on his back. However, the above facts are not mentioned in the FIR (Ex.P-7) lodged by him, contradicting his statement. He has also stated that at the time of the incident, he was wearing a light red half-shirt and a black vest underneath, from which, blood was oozing and also stained on his clothes, pants, and hand watch, but the prosecution did not seize the blood stained clothes of victim/PW-3 for the reasons best known to it. In cross-examination, he admitted that when he was returning home from Nonbirra, it was dark and he did not use any light. He further admitted that he has been in jail since June, 2006 and his brothers namely PW-2 Santram, PW-1 Chandulal & PW-5 Vyas have also been in jail since March 16, 2006 for committing the murder of the deceased/co-accused-Jagdev. He also admitted that while lodging the FIR (Ex.P-7) and later when his statement was recorded on June 12, 2006, he had informed the police that accused- Nemprasad had instructed deceased / co-accused- Jagdev to fire at him over his chest, and if the said fact is not written in his statement or in the FIR (Ex.P-7), he cannot state the reason. 14. Moreover, PW-6 Dr. Pradeep Agrawal has stated that he examined the victim/PW-3 and found lacerated wound on left side of his back and opined that the injury found on the victim's body could have been caused by a gunshot. However, in his report, he did not mention the specific object that caused the injury. He has further stated that when injured/PW-3 was brought before him, he was not in a serious condition and gave his MLC report vide Ex.P-11. He has also stated that he had recorded the dying declaration statement of the victim vide Ex.P-8, which is an important piece of evidence to establish the factum of incident. The 7 contents of PW-3 Shyamlal's dying declaration statement read as follows:- “........ D;k uke gS rqEgkjk & mRrj ';ke yky iVsy dgk jgrs gks& uksufcjh firkth dk uke& ctjax yky iVsy D;k gqvk & eSa jSuiwj ls okil gks jgk Fkk mlds ?kj ls (txnso ds ? kj) dzkl gqvk lqcg ls os yksx xkyh cd jgs Fks ge yksxks ds dks;yk xkM+h idMok;s gks rqedks 'kke dks crk;sxsA dkSu&ekjk & canwd ls txnso izlkn iVsy A fdrus cts dh ckr gS& yxHkx 7&8 cts 'kke dh ckr gSA fdlls ekjk& canwd ls A gkFk esa lwryh ce Hkh j[kk Fkk-----A” 15. A bare perusal of PW-3 Shyamlal's dying declaration statement shows that PW-3 Shyamlal only mentioned the name of the deceased / co- accused Jagdev stating that he shot at him with gun. However, he did not mention the names of the other accused persons. It is pertinent to mention here that PW-6 Dr. Pradeep Agrawal also clarified in the dying declaration statement (Ex.P-8) that PW-3 Shyamlal's statement was written by him and at that time, he (PW-3) was in a full state of consciousness to give a verbal statement, meaning thereby, while giving statement PW-3 Shyamlal was in a fit state of mind. 16. Thus, from the evidence of above witnesses, it appears that there are material inconsistencies in the statements of PW-1 Chandulal and PW-3 Shyamlal and their evidence do not corroborate with the contents of FIR (Ex.P-7) and other prosecution witnesses' evidence, therefore, creditability of their evidence is doubtful. This apart, PW-2 Santram, real brother of the PW-3 Shyamlal, has also turned hostile and not supported the prosecution case. Furthermore, PW-7 Vimal has stated in his deposition that he has signed the document (Ex.P-1 seizure memo) on 16.03.2016, but seizure was made on 15.03.2006. He has also stated that after the incident, PW-8 Mayaram took PW-3 Shyamlal to hospital by vehicle, but PW-8 Mayaram has stated that after the incident, he took 8 PW-3 Shyamlal to Police Station for lodging report. PW-8 Mayaram has also stated that in his presence, police has not seized anything and police informed him that they had seized gun and told him to sign over the paper, then he signed over the blank papers. That apart, in the Dying Declaration statement, recorded by PW-6 Dr. Pradeep Agrawal, PW-3 Shyamlal had only disclosed the name of deceased / co-accused- Jagdev stating that he had shot at him with gun, but he had not mentioned the names of other accused persons. Had the other accused persons/respondents been involved in the crime in question, then PW-3 Shyamlal would have definitely mentioned their names in the dying declaration statement (Ex.P-8). 17. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court and being very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favouring the accused, reversal of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, we are of considered opinion that the judgment impugned acquitting the accused persons/respondents herein of the said charges is just and proper and does not call for any interference. 18. Accordingly, this appeal by the State / appellant against the acquittal of the accused persons/respondents herein is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge Akhilesh