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Judgment
Heard on I.A. No.25481 of 2022, an application under Section 5 of the Limitation Act for condonation of delay.
On due consideration, the aforesaid application is allowed. The delay of 109 days occurred in filing this appeal is hereby condoned.
This appeal under Section 378(III) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 28.05.2022 passed in Sessions Trial No.1700259 of 2015 (State of M.P. vs. Aniruddh Mukherjee) by the learned Sixth Additional Sessions Judge, Katni, District Katni (M.P.), whereby the respondent/accused has been acquitted of the offence under Sections 333 and 427 of the Indian Penal Code.
Briefly stated, the prosecution case is that Constable Brajesh Shukla, posted at Police Outpost Jhijhri, submitted a written report on 19.11.2015 stating therein that on the said date he, along with Head Constable Santosh Singh had gone to arrest a warrantee, namely Aniruddh Mukherjee. At about 01:00 PM, the said warrantee was found on the road in front of the Beetle shop of Naresh Yadav. Upon being informed about the warrant and asked to accompany the police party to the outpost, the accused allegedly snatched the warrant, pushed the Head Constable and attempted to flee; however, he was apprehended on the spot. It is further alleged that due to the push, Constable Brajesh Shukla sustained injuries on his left wrist, knee and waist. On the basis of the aforesaid written report, Police Station Madhavnagar registered a First Information Report bearing Crime No. 647 of 2015 for the offences punishable under Sections 353, 332, and 427 of the Indian Penal Code and commenced investigation.
During investigation, the injured was medically examined, a spot map was prepared at the instance of the complainant, and statements of witnesses were recorded. Upon completion of investigation, a charge-sheet was filed before the Court of Judicial Magistrate First Class, Katni, District Katni. Subsequently, the case was committed to the Court of the learned Principal Sessions Judge, Katni, and thereafter transferred to the trial Court. Charges under Sections 333 and 427 of the IPC were framed against the accused, which were read over and explained to him. The accused denied the charges and claimed trial.
4 . In order to bring home the charges, the prosecution has examined as many as 06 witnesses, namely Constable Brajesh Shukla (PW-1), Naresh Yadav (PW-2), Manja (PW-3), Santosh Singh (PW-4), Anurag Pathak (PW-5) and Dr. Sunita Singh (PW-6) and placed Ex.P/1 to P/29 and Ex.D/1 and Ex.D/48, the documents on record. In defence, the respondent/accused examined Umesh Kumar Namdeo (DW-1), Narendra Mishra (DW-2) and complainant Aniruddh Mukherjee (DW-3) as defence witnesses.
5 . Learned trial Court after recording the evidence of both the parties acquitted the present respondents/accused. Hence, this appeal.
Learned counsel appearing on behalf of the appellant/State has contended that, the respondent has erroneously been acquitted by the learned trial Court despite ample evidence on record in the form of statement of victim namely Constable Brajesh Shukla (PW-1), Santosh Singh (PW-4) and eye witnesses Naresh Yadav (PW-2) and Anurag Pathak (PW-5). The statements of these witnesses is further corroborated by FIR and medical evidence in the shape of statement of Dr. Sunita Singh (PW-6) which establishes the injury on the person of complainant Brajesh Shukla (PW-1). It is also established from her statement that there was a fracture on the left hand thumb of the complainant Brajesh Shukla (PW-1), therefore, the offence under Section 333 and 427 of the IPC is established. The learned trial Court on the anvil of the minor variations in respect of the timings of medical examination as well on the basis of call detail submitted by the respondent/accused, through defence witness has doubted the story of the prosecution, which is erroneous and liable to be set aside. Therefore, it is prayed that the appeal be allowed, the impugned judgment of acquittal be set aside and the respondent/accused be convicted and sentenced in accordance with law.
7 . Per contra, respondents/accused present in person before this Court has submitted at Bar that the learned trial Court has rightly concluded the acquittal of him as there was serious anomalies of the timing of the lodging of the FIR and subsequent process undertaken by the Police and getting the complainant medically examined. It is further submitted that the call details shows that the present respondent was not present at the time of offence at the spot, therefore, the entire evidence on behalf of the prosecution showing the guilt of the present appellant is unbelievable and doubtful. It is further submitted that there is previous rivalry between the present respondent and Rajesh Shukla, who happened to be a good acquaintance with the victim Brajesh Shukla (PW-1). The learned trial Court has properly analyze the evidence on record and rightly given the benefit of doubt to the respondent/accused. The judgment of acquittal being well-reasoned and founded upon proper appreciation of evidence does not warrant any interference by this Court. Accordingly, learned counsel prays for dismissal of the present appeal.
I have heard the learned counsel for the parties and perused the record meticulously.
9 . Though the victim Brajesh Shukla (PW-1), eye-witness Naresh (PW-2) and Santosh Singh (PW-4) have supported the prosecution case, it is also evident from their testimonies, read in conjunction with the documentary evidence on record, that the present respondent and the victim Brajesh Shukla (PW-1) were acquainted with one Rajesh Shukla. It has come on record that there existed prior enmity between Rajesh Shukla and the respondent/accused, which stands substantiated by documents Ex.D-43 and Ex.D-44, duly considered by the learned trial Court in paragraphs 23 to 26 of the impugned judgment. Brajesh Shukla (PW-1) has attempted to deny his acquaintance with Rajesh Shukla; however, the aforesaid documents Ex.D-43 and Ex.D-44 along with the call detail records, clearly establish that Brajesh Shukla (PW-1) was in contact with Rajesh Shukla and that they remained in telephonic communication from time to time. This fact is further corroborated by document Ex.D/3, which reflects that conversations had taken place between them on the date of evidence. Moreover, Ex.D/3, which is a note-sheet of the Superintendent of Police, Katni reveals that on the date of the incident i.e. 19.11.2015, Brajesh Shukla (PW-1) was engaged in preparing a Nuksani Panchnama at 13:14 hours. In such circumstances, a doubt arises as to how his medical examination at 13:40 hours (after sending him for the purpose before 13:13 hours) could have been conducted simultaneously. The report submitted by the SDOP, Sleemnabad, which has been duly approved by the Superintendent of Police, Katni, casts a serious doubt on the fairness and reliability of the investigation conducted by the police officer in the present case.
It is further revealed from the documentary as well as oral evidence adduced by the prosecution that, as per the FIR (Ex.P-8), the incident is alleged to have occurred at 13:00 hours on 19.11.2015, which is also reflected in the zero FIR (Ex.P-9). However, the information, as per these documents, is shown to have been received at the police station at 13:15 hours, giving rise to a material inconsistency. Further, as per the call detail records (Ex.D-19) and tower location data (Ex.D-20), the location of Brajesh Shukla is shown to be near District Hospital, Katni and Kachheri Chowk, Katni. In view of these documents, it appears doubtful that at around 13:40 hours on the date of the incident, Brajesh Shukla could have been present at Police Chowki Jhinjri for preparation of the Nuksani Panchnama and simultaneously undergone medical examination. It is also borne out from the statement of the Investigating Officer, Anurag Pathak (PW-5), that Brajesh Shukla was sent for medical examination at about 14:00 hours to the District Hospital, Katni and that Narendra Mishra accompanied him. However, the Roznamcha entry reflects that Narendra Mishra departed from Jhinjri Chowki at 13:20 hours, whereas the hospital slip indicates that it was prepared at 13:13 hours. These discrepancies raise serious doubt as to how the medical examination could have been conducted at 13:40 hours when, as per the prosecution, the complainant was sent for examination only at 14:00 hours. All these inconsistencies emerging from the record raise significant doubts, which have not been satisfactorily explained by the prosecution.
Ex.D-1 is a document indicating that the SDOP had put certain queries to Brajesh Shukla (PW-1). From this document, it is also revealed that the OPD slip (Ex.D/29) bears the time of 13:13 hours; however, the said slip does not contain any prescription, as stated by Brajesh Shukla. Moreover, when the first information is shown to have been received at 13:15 hours, it raises a serious doubt as to how, prior to that, at 13:13 hours, such an OPD slip could have been issued in favour of Brajesh Shukla by the District Hospital, Katni. This inconsistency further creates doubt regarding the veracity of the prosecution case.
The entire version as projected by the prosecution, in light of the testimonies of the witnesses and the material available on record, gives rise to serious doubt, as discussed hereinabove. Manja Yadav (PW-3), who is stated to be an eye-witness to the incident and is also a relative of Naresh Yadav (PW-2) has not supported the prosecution case and has been declared hostile. Although, Naresh Yadav (PW-2) has supported the prosecution version, the learned trial Court has observed that his pan and tea shop is situated in close proximity to Police Chowki Jhinjri; therefore, the possibility of his being under the influence of the police cannot be ruled out.
Ex.P-10 is the MLC report, which reflects that the nature of injuries was initially recorded as “simple” at the relevant portion; however, the same appears to have been subsequently altered and the injuries were later opined to be “grievous” after the X-ray examination. This alteration gives rise to a suspicion regarding the authenticity and reliability of the said report. Learned counsel for the appellant/State has contended that the documents relating to call detail records and tower location are not supported by a certificate under Section 65-B of the Evidence Act. In this regard, it is to be noted that the CDR and tower location data were collected by a senior police officer, namely the SDOP, and were produced before the learned trial Court. The same were duly verified by the police officials and at the time of their exhibition, no objection was raised on behalf of the prosecution. It is a settled principle of law that the burden lies upon the prosecution to prove its case beyond reasonable doubt, whereas the defence is only required to establish its case on the touchstone of preponderance of probabilities. In the aforesaid circumstances, the production of the CDR and tower location records by the defence cannot be discarded merely on the ground of absence of a certificate under Section 65-B of the Evidence Act rather the same can be taken into consideration in support of the defence version.
In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” (Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Curt, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has not absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
Ex. consequenti, while affirming the findings of acquittal of present respondents by the learned trial Court, the appeal being bereft of merit is hereby dismissed.