State of M.P. (Now Chhattisgarh) v. Kavinath & Ors.

Judgment

/j/11/2009^ Sd/- Sunil Kumar Sinha Judge .G., "-\ 1 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM:

Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 1603 of 1996 APPELLANT RESPQNDENTS State of M.P. (Now Chhattisgarh) Through Thana Prabhari, Thana Lohandiguda, Distt. Bastar (M.P.) (Now Chhattisgarh) Versus

5. Kavinath S/o Kanu Muria, aged 52 yrs. Lakshman S/o Baisakhu Muria, aged 45 yrs Santuram S/o Sudruram Rawat, aged SOyears Sukhdev S/o Lakhsminath Muria, aged 24 years Devi S/o Roopchand Rawat, aged 19 yrs

6. Ramchandra S/o Nadiram Rawat, aged 35 years

7. Balram S/o Kanu Muria, aged 30 R/o Atl Village Chandela (Khalepara), P.S. Lohandiguda, District (Now Chhattisgarh) Bastar (M.P.) (Appeal under Section 378 (1) of The Code of Criminal Procedurel Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate for the appellant/State. Mr. Vikas Shrivastava, Advocate for the respondents/Accused. Criminal Appeal No. 1603 of 1996 JUDGMENT (/5.11.2009) Following judgment the Court was delivered Sunil Kumar Sinha. J. (1) Being aggrieved with the judgment of acquittal dated 8.4.1996 passed in Sessions Trial No. 188/95 by the Second Additional Sessions Judge, Jagdalpur, Bastar, the State has filed this appeal with the leave of the Court. (2) The facts, briefly stated, are as under:- The respondents/accused persons were charged u/ss 147, 148, 302/149 & 201 of the IPC. The allegations were that on

10.3.95 the respondents, being the members of an unlawful assembly, armed with lathi & tangia, participated in rioting and in furtherance of the common object of the said assembly committed murder of deceased Kartami Hidma and Madvi Somdu. Thereafter their dead bodies were buried on the bank of Indrawati thereby causing disappearance of the evidence. The case of the prosecution was that on 10.3.95, the deceased persons had gone towards village Chandela on account of their cattle's business. There they committed theft of an ox of respondent Kavinath. When Kavinath knew about this, he along with the other respondents c came to the place of the occurrence with tangia, pharsa and danda. Looking all this, Kartami Saibo (PW-10), who was accompanying the deceased persons at ran away. However, the deceased persons were surrounded by the place of occurrence, respondents and were assaulted by them. They received many injuries and succumbed to those injuries. Then the bodies were buried. According to the prosecution, the incident was witnessed by 3 eye-witnesses namely Kurso (PW-1), Jugru (PW-2) and Kartami Saibo (PW-10). Criminal Appeal No. 1603 of 1996 It appears that on 2.4.95, respondent Kavinath lodged a First Information Report (Ex.-P/32-A) for the theft of his ox, on which, Crime No. 30/95 was registered u/s 379/34 IPC. In the said report, he mentioned that they have committed murder of the deceased persons on account of the said theft and thereafter their dead In the bodies have been buried on the bank of Indrawati river. present case, during the course of investigation a memorandum statement (Ex.-P/24) of respondent Kavinath has been recorded on 3.4.95 at about 15.00 hours u/s 27 of the Evidence Act, and on the basis of information given by him, the dead bodies ofthe deceased persons were recovered on 4.4.95 under Ex-P/14 & P/15. On trial, out of 3 eye-witnesses Kurso (PW-1) and Jugru (PW-2) turned hostile and they did not support the case of the prosecution. The third eye-witness i.e. Kartami Saibo (PW-10) was not believed by the Sessions Court because he admitted in the cross examination that he could not identify the persons who assaulted deceased Hidma and Somdu and who took away the two deceased persons with them. He was also a witness of memorandum of respondent No.1 but the evidence in relation to the discovery statement was also shaky. The learned Sessions Judge furi:her memorandum of respondent No.1 recorded u/s 27 of the Evidence Act on 3.4.95 (Ex.-P/24) and the alleged discovery of the dead bodies on the basis of such memorandum was of no use, because, prior to that respondent No.1 had already made a report to the police regarding theft of his ox, in which, hehad stated about commission of murderofthe deceased persons. It is on this account, the learned Sessions Judge acquitted the respondents/accused persons holding that could not prove its case beyond reasonable doubt. the prosecution Criminal Appeal No. 1603 of 1996 (3) Mr. Sudhir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the appellant/State, argued that the Sessions Judge erred in law in discarding the testimony of Kartami Saibo (PW-10). He also argued that the dead bodies were discovered at the instance of respondent No.l/accused Kavinath and the learned Sessions Judge erred in law in holding that the aforesaid recovery was of no use to the prosecution. He further argued on the confessional F.1.R. lodged by respondent No.1. ^ (4) On the other hand, Mr. Vikas Shrivastava, learned counsel appearing on behalf of the respondents/accused, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the partiesat length and have also perused the records of the sessions case. (6) Kartami Saibo (PW-10) deposed that "the accused persons came to the place of occurrence having lathi and tangia in their hands. He ran away leaving the deceased persons and saw from some distance that the accused persons were assaulting the deceased persons and thereafter they tied their hands and legs by rope and cloth and put them in pit on the bank of the river". In cross examination, he admitted that about 30-40 villagers of village Chandela and many. villagers of village Kaunar have gathered there and have taken the deceased persons with them and he could not identify those persons. There are other contradictions in between his court statement and case diary statement (Ex.-D/1). After going through the entire evidence of this witness, we do not find any Criminal Appeal No. 1603 of 1996 €' illegality committed by theSessions Court while discarding his testimony as he clearly deposed that he could not identify the assailants. (7) So far as the argument regarding confessional First Information Report is concerned, the Apex Court held in the matter of Aahnoo Naaesia -Vs- State of Bihar, AIR 1966 SC 119 that "The first information report recorded under S. 154, Criminal P.C. as such is not substantive evidence, but may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under S. 8 of the EvidenceAct. If the information is non-confessional, is admissible against the accused as an admission under S.21 of the Evidence Act and is relevant. But a confessional first information repori; by the accused to a police officer cannot be used against him in view of S. 25 of the Evidence Act." The Apex Court also relied on the decisions rendered in the matters of Faddi-vs- State ofMadhva Pradesh. AIR 1964 SC 1850: Nisar Ali -vs- State ofU.P.. AIR 1957 SC 366 & Dal Sinah -vs- Kinfi Emjoeror. AIR 1917 PC 25. Therefore, the confessional information report cannot be read against respondent Kavinath. (8) If we look into the F.I.R. lodged in the cattle theft case (Ex.-P/32-A) on 2.4.95 and the discovery memo recorded u/s 27 of the Evidence Act in the present case (Ex.-P/24) on 3.4.95, it would be clear that by the said F.1.R. respondent Kavinath had already lodged information to the police regarding the dead bodies ofthe deceased persons. Therefore, there was Criminal Appeal No. 1603 of 1996 no question of discovery by the police, and the discovery said to have been made by this respondent vide the memo Ex.-P/24 on 3.4.95 was of no use to the prosecution and the recovery of the dead bodies on 4.4.95 shown to be made on the exclusive information submitted by respondenVaccused Kavinath police

3.4.95 through memorandum u/s 27 of the Evidence Act was also of no use. Apart from |wmniiN»^ the above, the recovery of the dead bodies by the police on information given by the accused on being questioned would not be a conclusive circumstance but it merely raises a suspicion against him and the conviction could not rest on such sole circumstance. (9) In Budh Sinah and others -Vs.- State of U.P. (2006) 9 SCC 731, the Apex Court held vide para 9, 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 of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. (10) It was further held by the Apex Court in the matter of V.N. Ratheesh -Vs.- State of Kerala. AIR 2006 SC 2667 that there is no 7 Criminal Appeal No. 1603 of 1996 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 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 guilt 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 Bhaawan Sinah and others -Vs.- State of Madhva Pradesh f2002 (2) Supreme 567). 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. (11) We have gone through the entire evidence on record with a view to find out as to whether the views of Sessions Court were perverse or otherwise unsustainable. After going through the entire evidence Criminal Appeal No. 1603 of 1996 available on record, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgmentmay be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. (12) For the foregoing reasons,we do not find any illegality or infirmity in the judgment and finding recorded by the Sessions Court. (13) The appeal has no merit. The same is liable to be dismissed and is hereby dismissed. r Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge