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Judgment
Appellant/State has filed this Criminal Appeal under Section 378 of the Cr.P.C. against the judgment dated 21.11.1995 passed by First
Additional Sessions Judge, Ashok Nagar, District Guna in S.T. No. 12/1988, whereby respondent Udham was acquitted from the charge under
Sections 302 and 323 of IPC.
Undisputed facts were that complainant Devilal (PW-1) and respondent/original accused were resident of same village and their houses are
situated in front of each other. Amaan and Pappu were real brothers of Udham.
The story of prosecution in brief is that on 29.07.1987 at about 4-5 PM complainant Devilal (PW-1) was grazing his oxen in his agricultural land
and after leaving the grazing oxen he went to inspect the crop of jwar in his field, where he found Amaan Dhobi grazing his oxen. Complainant
Devilal asked Amaan to take away his oxen from his jwar field, then Amaan took out his oxen from complainant''s agricultural land. Thereafter,
complainant went to his house and narrated this incident to elder brother of Amaan, respondent Udham that his oxen had damaged his crop of
jwar. Then respondent replied that in the same way their crop would be damaged. Thereafter, altercation and abusing started between complainant
and Udham. At the same moment Amaan returned from his agricultural land, assaulted complainant with a stick on his head. On complainant crying
for help, his wife Shanti Bai (PW-7) came at the scene of occurrence carrying her two year old daughter Guddi in her lap to save her husband,
when respondent Udham assaulted Shanti Bai with the stick which caused injuries to the two year old Guddi Bai who died on the spot. Pappu
Dhobi also gave beating to the wife of complainant Shanti Bai causing injury on left side of her waist. At the same time Prakash Singh, Dheeraj
Singh (PW-2) and Raghuraj Singh came on the spot and witnessed the incident. Complainant Devilal with watchman Lalliram (PW-6) reached the
Police Station Naisarai and lodged FIR (EXP-6) on which crime was registered.
Investigating Officer Bhogiram (PW-8) reached the spot and issued safina form and prepared inquest memo of dead body (Ex.P-2) in presence
of panch witnesses and send the dead body of child Guddi Bai for postmortem with an application (Ex.P-4). The postmortem (Ex.P-5) was
conducted by Dr. Ramveer Singh Raghuvanshi (PW- 9), who found fractures on left parietal and frontal bones of the deceased child and there was
bleeding inside the brain and brain was having laceration and froth was coming from mouth and nose of deceased. Dr. Ramveer Singh Raghuvanshi
(PW-9) opined that deceased child had died due to coma arising from head injury. Investigating Officer Bhogiram (PW-8) prepared spot map
(Ex.P-1) and during investigation recorded police statements of witnesses and after completing investigation, charge sheet was filed only against
respondent Udham in reference to offences punishable under Section 304 of the IPC in the Court of Judicial Magistrate First Class, Ashok Nagar,
who committed the criminal case to Sessions Judge, Guna, who transferred the sessions trial to above mentioned trial Judge.
The trial Judge framed the charge for offences punishable under Sections 302 and 323 of IPC against the respondent. The respondent abjured
guilt. It was his defence that he has been falsely implicated due to enmity and actually on the date of incident he was working in the agricultural land
of Pratap Raghuvanshi, where the ladies of his house came and intimated that Devilal assaulted his brother Amaan, thereafter he with his brother
Pappu and Bharosa reached the field, where Amaan was lying in unconscious state, who was taken by them to Police Station, Naisarai and report
was lodged and Amaan was sent for medical examination and thereafter Amaan remained hospitalized. Complainant has prepared false case to
save himself from being implicated for beating Amaan.
Before trial Court for prosecution, complainant Devilal (PW-1), Mulla (PW-2), Dheeraj Singh (PW-3), Horal (PW-5), Lalliram (PW-6), Shanti
Bai (PW-7), Bhogiram (PW-8) and Dr. Ramveer Singh Raghuvanshi (PW-9) were examined and defence witnesses Amaan (DW-1), Rangilal
(DW-2) and Pratap Singh (DW-3) were examined. The trial Court vide impugned judgment after discussing evidence produced by both the
parties had acquitted the respondent from above mentioned framed charges.
It would be significant to mention at the outset that according to order sheet recorded by trial Court on 22.4.1998, that fire broke out at the trial
Court premises on 31.3.1996 resulting in destruction of the record of relating sessions trial No. 12/1998.
This Court in M.Cr.C. No. 1287/1996 vide order dated 2.2.2001 allowed the application filed by the State for grant of leave to file appeal
against the above mentioned order of acquittal of respondent and on the same date appeal was admitted. It appears from the above mentioned
order sheet dated 22.4.1998 recorded by First Additional Sessions Judge, Ashok Nagar that the requisition for relating sessions trial No. 12/1998
was received by trial Court on 2.4.1998 but since due to firebreak in the trial Court premises original record was totally destroyed, the trial Court
on 22.04.1998 ordered for reconstruction of the record of disposed of sessions trial and issued notices to prosecution and counsel of the accused.
Later on only case diary relating to Crime No. 52/1987 was produced before the trial Court by prosecution and according to order sheet dated
31.8.1998 it was intimated by A.G.P. for prosecution that he or Government was not having any document regarding the sessions trial except the
photocopy of the charge sheet tagged in the case diary and on the next date on 10.09.1998 accused Udham with his counsel intimated the Court
that he is only having photocopy of judgment dated 21.11.1995 passed by trial Court and he is not having any other document or paper relating to
disposed of sessions trial.
The trial Court ordered on 10.09.1998 that photocopy of the charge sheet with its annexures which Cr.A.116/01 5 were produced by the AGP
and photocopy of the certified copy of judgment produced by accused Udham be sent to this Court and as record of the trial Court only above
mentioned papers have been received.
It is clear that for reconstruction of the record, no party produced certified copy of any deposition recorded before the trial Court, nor any
photocopy or certified copy of framed charge or order sheets of the trial Court were produced by any party, hence it is clear that on record there
is no certified copy of depositions recorded before the trial Court of any prosecution witnesses or defence witnesses.
Facing above mentioned abnormal situation, at the time of final hearing of this criminal appeal, both parties have consented that this criminal
appeal be decided on the basis of received photocopy of certified copy of the judgment. In such abnormal situation, there is no other alternative for
deciding this criminal appeal.
It is well settled that any statement made by any Court or Judge in its order or judgment are presumed to be correct, hence this appeal is being
decided on the basis of observations made by the trial Judge regarding depositions of different prosecution witnesses and defence witnesses.
According to observation made by the trial Judge in judgment, before it Dr. Ramveer Singh Raghuvanshi (PW- 9) had deposed that in
postmortem he had found fracture of left parietal and frontal bones of the deceased child Guddi Bai aged about two years and the doctor opined
that such injuries could be caused by assaulting with any hard and blunt object or due to accidental fall from height, but as complainant Devilal
(PW-1) and his wife Shanti Bai (PW-7) had deposed that deceased Guddi Bai had received lathi injury over her head and it was found that the
death of the deceased child was homicidal.
It appears from the judgment of the trial Court that it acquitted respondent Udham for following reasons:-
(a) According to FIR lodged by complainant at the time of incident respondent''s brother Amaan has also assaulted him by lathi over
his head and respondent''s another brother Pappu has assaulted complainant''s wife Shanti Bai, but surprisingly the charge sheet was
filed only against respondent Udham and there was no explanation by the prosecution or even by investigating officer Bhogiram (PW-
8) that why charge sheet was not filed against respondent Udham''s real brothers Amaan and Pappu.
(b) Complainant Devilal deposed in his examinationin- chief that when he was standing on chabutara then respondent Udham had
assaulted with lathi on his head, but in cross-examination complainant deposed that Udham assaulted his wife by lathi and he was not
assaulted by Udham, but he again changed his evidence in further cross-examination and deposed that first lathi blow was received
by him but this material fact was missing in his FIR (ExP-6) and his police statement (ExD- 1). From the evidence of Dheeraj Singh
(PW-3) and father of the complainant Mulla (PW-2), it was clear that just after the incident complainant has deposed that Udham
had tried to strike on his wife Shanti Bai by his lathi, but that lathi hit his child, hence there were material contradictions and
discrepancies in evidence of complainant and his near relative witnesses. The watchman of village Lalliram (PW-6) deposed before
the trial Court that he had only seen the dead body of daughter of complainant lying on the ground at his home. Lalliram was declared
hostile and according to Lalliram''s evidence nothing was intimated to him by Devilal on the point that how his daughter died.
(c) Contrary to his FIR, complainant Devilal (PW-1) deposed before the trial Court that Amaan had not come to his house and
Amaan did not give any beating to him at his house and complainant deposed that relating portions marked as ''a to a'' in his FIR and
police statement were not stated by him to police.
(d) Devilal (PW-1) deposed in para 9 before the trial Court that respondent Udham had hurled abuses to his wife Shanti Bai, but
these material facts were also missing in his FIR and police statement ExD-1. Complainant Devilal (PW-1) had not deposed that at
the time of incident committed by Udham, his real brother Pappu was with him, but in para 9 complainant deposed that Pappu was
with Udham and Pappu did not give any beating to him, but Pappu assaulted his wife with a stick causing injury on her left shoulder,
however his wife Shanti Bai (PW-7) did not depose of sustaining any injury caused by respondent''s brother pappu.
(e) Investigating Officer Bhogiram (PW-8) deposed that marked portions of police statements of complainant and other witnesses
were stated to him during investigation by relating witnesses, hence there were material contradictions and discrepancies between the
evidence given by the complainant and his wife.
(f) Complainant Devilal (PW-1) deposed in para 9 that the fact mentioned in his police statement that injury was caused in the waist
of his wife is not correct. Contrary to complainant, his wife Shanti Bai deposed that at the time of incident Udham and his two
brothers Amaan and Pappu had also came in front of their door and all the three brothers hurled abuses and Amaan assaulted by lathi
on her husband.
(g) Complainant (PW-1) deposed in para 7 that on the date of incident he did not see any injury on the body of Amaan, but his wife
Shanti Bai (PW-7) clearly deposed in para 2 that Amaan was having injuries and blood was also oozing out from injuries, hence there
were material contradictions between the evidence of the complainant and his wife. Complainant Devilal (PW-1) clearly admitted in
his cross-examination that Amaan had also gone to police station, Naisrai to lodge report with his brothers Uhdam and Pappu.
Amaan (DW-1) and Rangilal (DW-2) deposed before the trial Court that actually complainant Devilal and Amaan were playing
gambling by cards and at that time a quarrel occurred between Devilal and Amaan and Devilal assaulted Amaan by his axe, which
caused injury over the head of Amaan and thereafter Amaan became unconscious.
(h) Pratap Singh (DW-3) also deposed that wife of brother of respondent Udham had intimated him at 5=00 PM on the date of
incident that complainant Devilal had assaulted Amaan who is lying unconscious in the field. Pratap Singh (DW-3) also deposed that
on the date of incident respondent was working in his field and a quarrel had occurred between complainant Devilal and Amaan in the
noon and thereafter he gave leave to Udham who was working in his field.
(i) Shanti Bai (PW-7) also admitted in para 3 that Amaan, Pappu and Udham had also gone for lodging report at police station. This
fact was also admitted by Mulla (PW-2), father of the complainant who deposed that Amaan, Pappu and Udham had reached earlier
for lodging the report at police station and they reached to police station later on.
(j) Dheeraj Singh (PW-3) deposed in para 3 that he had also seen the injuries of Amaan on the date of incident and at that time
Amaan was unconscious and bleeding was oozing out from Amaan''s injuries. Lalliram (PW-6) admitted in para 4 of his deposition
that when he reached with complainant at police station, then Amaan, Pappu and Udham were also present at police station and
Amaan was injured and the report was lodged against Devilal by Amaan and Udham and Amaan was sent to hospital. Though
Devilal in his cross-examination denied the suggestion that he and Amaan were playing gambling by cards and at that time quarrel
occurred between them, but it is clear that there is no explanation of Amaan''s injuries from the evidence of complainant Devilal and
his wife, hence it is clear that actual incident was being suppressed by the complainant and his wife.
(k) It was clear from the evidence that the incident occurred in the residential area of relating village and nearer to complainant''s
house, houses of Komal Dhobi and Makkua Kori are adjacent, but investigating officer Bhogiram (PW-8) admitted in his cross-
examination that he did not inquired from Komal Dhobi and Makkua Kori regarding the incident, though Devilal deposed in his
evidence that at the time of incident Makkua Kori had reached on spot. Non-examination of independent witnesses makes evidence
of complainant and his wife doubtful.
(l) Though it was clearly deposed by complainant Devilal (PW-1), Mulla (PW-2), Lalliram (PW-6) and Shanti Bai (PW-7) that on
the date of incident respondent Udham had also reached for lodging the report with his brother Amaan and Pappu to police station
and Amaan was sent for medical examination, but all these facts were denied by the investigation officer Bhogiram (PW-8) in his
cross-examination. These discrepancies of evidence of complainant''s wife and other witnesses with evidence of investigating officer
clearly demonstrate that the investigation conducted by Bhogiram (PW-8) was bonafide and fair. Similarly, compliance of provision
of Section 157 of the Cr.P.C. regarding sending of copy of the FIR to relating Magistrate was not proved.
(m) It was not safe to rely on evidence of complainant Devilal (PW-1) and his wife Shanti Bai (PW- 7) regarding causing of murder
of their daughter by respondent Udham for above mentioned reasons.
(n) In view of evidence given by Amaan (DW-1) Rangilaal (DW-2) and Pratap Singh (DW-3), which were even corroborated
partially by prosecution witnesses Devilal (PW-1), Mulla (PW-2), Dheeraj Singh (PW-3), Lalliram (PW-6) and Shanti Bai (PW-7)
regarding lodging of report by Amaan and injuries of Amaan, the defence of the respondent could not be discarded totally, hence
complainant and his wife''s testimony regarding causing of fatal injury by respondent Udham were not trustworthy and on the above
foregoing reasons respondent was entitled for benefit of reasonable doubt.
It is well settled that scope of interference by this Court in appeals against judgment of acquittal passed by trial Court is much limited. In the
case of Pawan Kumar Vs. State of H.P. [2017(3)M.P.L.J. (Cri.) (S.C.) 414], it has been held by Apex Court in para 14 of its judgment as
follows:-
In Chandrappa and other vs. State of Karnataka, 2007 MPLJ Online (Cri.) (S.C.) 10= (2007) 4 SCC 415, this Court culled out the general
principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal. The said principles are enumerated
below:-
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal, Procedure, 1973 put 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 questions of fact and 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 emphasis 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 is 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) It 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.
In the light of above mentioned state of evidence produced before the trial Court, as appeared from the judgment of trial Court, we are of the
considered opinion that the trial Court has properly and legally appreciated the evidence produced before it by both the parties and the view taken
by the trial Court could not be termed as impossible in view of the above mentioned reasoning given by the trial Court. Hence, the appeal against
acquittal appears to be devoid of merit.
Consequently, the appeal filed by the State against the acquittal of present respondent vide impugned judgment is dismissed and the judgment
of acquittal is affirmed. The respondent is on bail. His presence is no more required before the concerned trial Court where he is appearing and,
therefore, it is directed that his bail bonds shall stand discharged.
A copy of this order be sent to the trial Court along with the record of the case for information.