Police Station Dharamjaigarh, District Raigarh (C.G.) v. Vijay Ekka S
Case Details
1 2025:CGHC:30769-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2094 of 2025 State of Chhattisgarh Through The Police Station Dharamjaigarh, District Raigarh (C.G.) ... Appellant(s) versus Vijay Ekka S/o Bichhiya Ekka Aged About 37 Years R/o Village Tejpurtola, Kekrapara, Chowki Rairumakhurd, Police Station Dharamjaigarh, District Raigarh (C.G.) ...Respondent(s) For State/Appellant : Mr. Shashank Thakur, Deputy Advocate General. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble
Legal Reasoning
Shri Bibhu Datta Guru, Judge Per Ramesh Sinha , Chief Justice
Decision
Order on Board 07.07 .2025 1. Heard Mr. Shashank Thakur, learned Deputy Advocate General for the appellant/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.07.07 17:58:28 +0530 2. Learned State counsel submits that the defects pointed out by the Registry had already been cured. He further submits that through memo 2 of submission dated 04.07.2025, the State is hereby filing the relevant exhibited documents, which have taken on record. Therefore, we proceed to hear the matter finally. 3. Also heard on I.A. No. 1 of 2025, which is an application for condonation of delay. 4. After hearing the learned counsel for the appellant/State and considering the reasons mentioned in the application, we are of the considered opinion that sufÏcient cause has been shown in the application and accordingly, I.A. No. 1 of 2025 is allowed and delay of 315 days in filing the appeal is condoned. 5. The State has sought leave to appeal against the impugned judgment of acquittal dated 01.05.2024 passed in Sessions Trial No. 97 of 2021 by the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.), whereby the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.) has acquitted the respondent/accused from the offence punishable under Section 302 of the Indian Penal Code (IPC) holding that the prosecution has failed to prove the charges beyond reasonable doubt. 6. Case of the prosecution, in brief, is that: (i) The respondent has caused assault upon his own son, namely, Stiphen by means of Tangi on 28.06.2021 in the night at around 9.30 hours as result the deceased sustained serious injury and upon taking him in the hospital the concerned Medical OfÏcer has declared him dead. 3 (ii) After due and necessary investigation, the charge-sheet was filed against the respondent/accused and the respondent/ accused was put to face charges before the learned trial Court. The respondent/accused adjured the guilt. In order to prove its case, the prosecution examined as many as 13 witnesses in its favour. (iii) After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the respondent/accused, and therefore, acquitted the respondent/accused from the offence charged vide impugned judgment and order dated 01.05.2024, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal. 7. Learned State counsel would submit that the learned trial Court has erred by acquitting the respondent/accused from the offence charged by discarding the evidence of complaint without there being any strong reason to discard the evidences of the prosecution. Learned State counsel further submitted that the learned trial Court failed to appreciate the prosecution evidence in its right prospective, particularly the memorandum statement of the respondent, where he has categorically stated that as the deceased came during quarrel with his wife, he caused assault upon him by means of tangi as result he sustained injuries and got unconscious. Further, the weapon of offence was seized from possession of respondent/accused (Ex.P/11), thus, the present is a case where the deceased was murdered by the respondent/accused. However, the learned trial Court has failed to consider and appreciate these evidences 4 in proper perspective manner and only due to the witnesses being hostile came to the conclusion that the prosecution has failed to prove the charge upon the respondent and acquitted him from the alleged charge, which is illegal and liable to be set aside. Therefore, leave deserves to be granted. 8. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal. 9. Learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.) while acquitting the accused/respondent has observed in paragraphs 26, 27, 28, 29, 30, 31, 32 & 33 as follows: “26. A perusal of memorandum statement (Ex.P/10) and seizure sheet (Ex.P/11) shows that the above proceedings were conducted in the presence of independent witnesses Marcus Kujur and Akash Ekka. Marcus Kujur (PW4) and Akash Ekka (PW7) have confirmed their signatures on parts A to A and B to B respectively of memorandum (Ex.P/10) and seizure sheet (Ex.P/11), but they denied that any interrogation of the accused was done in their presence and any property was seized as per his statement. They denied the suggestion that memorandum of accused Vijay Ekka was written in their presence and Vijay Ekka accepted in anger and on his indication an iron tangi was seized by the police in their presence. Both the above witnesses, on being asked suggestive questions by the prosecution, causing murder by injuring Sthepan below his stomach with a sharp sickle. 27. Marcus Kujur (PW-4) and Akash Ekka (PW-7), on being asked suggestive questions by the prosecution, denied the suggestion that at 9-10 p.m., on hearing noise, they went to Christina Ekka's house and saw 5 that deceased Sthepan Ekka was lying unconscious on the floor inside the house and there was an injury on his right side below his stomach from which blood was oozing out and on being questioned, Christina told that her husband Vijay Ekka was quarreling under the influence of alcohol and when Sthepan came to intervene, the accused injured him on the right side below his stomach with a sharp sickle, due to which he was taken to Pathalgaon for treatment but no blood was found from the scene of the incident and they also denied that there was any soil clogged with it and Marcus Kujur (PW-4) has also not supported the proceedings of preparing the map, panchayatnama. No such fact has been brought forth by the prosecution in the examination of the said witnesses which shows that they are deliberately giving false statements to save the accused. 28. Marcus Kujur (PW-4) and Akash Eka (PW-7) have not supported the memorandum and seizure proceedings. According to the statement of investigation ofÏcer James Kujur (PW-9), the incident was caused by the accused with the seized tangi in the case and Dr. Shraddha Tirkey (PW-10) has stated that she had been curetted with respect to the said tangi and while giving the curette report Ex.P/22, she had stated that the injuries sustained by Sthepan Ekka could have been caused by the sharp part of the said tangi and death is possible due to the said injury. In this regard, the cross-examination of this witness is noteworthy, in paragraph 17 of which this witness has stated that no blood stains were found in the said tangi and this witness has himself stated that there was a dark brown colored stain towards the edge of the tangi. In this regard, the chemical test report presented, 6 Ex.P/18, shows that the stain on the said tangi was of human blood and its blood group was '0'. The blood group of the deceased is '0'. No document has been presented by the prosecution in this regard. 29. In the case, the tangi was seized on 30.06.2021 at 18:00 and its curie was done by Dr. Shraddha Tirkey on 30.07.2021 and the said tangi was sent for chemical test on 11.08.2021. There is a complete lack of evidence regarding where the said tangi was kept between 30.06.2021 to 30.07.2021 and when it was sent for chemical test on 11.08.2021 after testing on 30.07.2021, in whose custody was it, through which constable was it sent for test and when was the said tangi provided to the said constable for test. It is also worth observing here that Dr. Shraddha Tirkey (PW-9) has admitted in paragraph 19 of cross-examination that the tangi seized by her was not sent for chemical test. All the above facts make the prosecution story doubtful. 30. Dr. Shraddha Tirkey (PW-9) has admitted in paragraphs 11 and 12 of cross-examination that the injuries sustained by the deceased could have been caused by forceful hitting and if forceful hitting is done then blood may splatter on the accused and no clothes of the accused were produced before her for curiae. No statement has been made by the investigation ofÏcer that the clothes worn by the accused at the time of the incident have been seized from him or that any notice has been given to him to produce the said clothes. The clothes worn by the accused at the time of the incident could have been an important evidence in the case and no test has been conducted in respect of the hand prints of the accused on tangi. Not making the seizure is fatal for the prosecution. 31. It is therefore clear that the prosecution story has 7 not been supported in any way by the mother of the deceased, Christina Ekka, sister of the deceased, Alisha Ekka, son of the deceased's grandfather, Sushil Ekka, grandfather of the deceased, Jagsay Ekka, son of the deceased's aunt, Marcus Kujur and Ajit Kujur. Even if it is assumed that the deceased was the son of the accused and the accused is a relative of the said witnesses, therefore, they are deliberately trying to hide the truth to save him, but in the case, the incident and memorandum (Ex.P/10) and seizure sheet (Ex.P/11) have not been confirmed by the independent witness Akash Ekka, the neighbor of the deceased. There is no evidence regarding the handprints of the accused on the seized tangi and that the blood group found in it is the same as that of the deceased. This has been presented. There is also a complete lack of evidence regarding the fact that the seized tangi was in safe custody between the date of seizure and the date of chemical test. All the above facts make the prosecution story doubtful and it is well-established law that the benefit of doubt should be given to the accused. 32. Therefore, it is clear that the prosecution has failed to prove beyond reasonable doubt that on 28.06.2021 at 21:30 pm, inside the house of the accused at village Tejpur Kekrapara, within the jurisdiction of Dharamjaigarh, Police Station-Dharamjaigarh, District Raigarh (CG), with the intention of killing his son Sthepan or with the intention of causing such bodily injury to him which he knew was likely to cause his death, he killed the deceased Sthepan by hitting him with a tangi. 33. Therefore, giving the benefit of doubt to the accused Vijay Ekka, he is acquitted of the charge of offence under Section 302 of the Indian Penal Code.” 8 10. Taking into consideration the findings recorded by the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.), acquitting the respondent/accused from aforesaid offence, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. 11. Recently, applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC OnLine SC 984, has held as follows:- “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 12. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for leave to appeal being totally devoid of merits, the same is rejected. Consequently, the appeal also stands dismissed. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan