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Judgment
This criminal appeal under Section 378(III) of the Code of Criminal Procedure, 1973 has been filed by the appellant/State being aggrieved by the judgment dated 13.05.2014 passed by the learned Additional Chief Judicial Magistrate, Khandwa, District Khandwa in Criminal Case No.2815/2009 whereby the respondents (hereinafter referred to as the 'accused persons') have been acquitted from the charges levelled against them.
The prosecution case, in brief, is that on 14.06.2009, at 12:30 p.m., complainant Rupabai was laying a plastic pipe to irrigate her field from another well on the Chotinadi farm. A pipe belonging to the complainant's brother-in-law, namely, accused Ashok's pipe got loosen when the engine was started. Due to this, accused Ashok and his wife, Rukmani Bai, assaulted Rupabai with sticks. Later, Ashok's sons, accused Mahendra, Jitendra, and Ritesh, also arrived, assaulting the complainant's husband, Mohan, and son, Rahul. Rupabai suffered injuries to her left hand fingers, and Ashok suffered injuries to his head and back. Gulabchand and the neighborhood witnessed the incident. Based on the complainant's report dated 16.06.2009, adam check number 302/09 was written and the injured were sent to the hospital for treatment. Where bone fracture was found in the X-ray report received on 18.07.2009, then a case was registered on crime number 450/09. Thereafter, the investigation was triggered.
After completing the investigation, the charge sheet was filed against the accused persons before the Court. Statement of the witnesses got recorded. Charges were framed; read out and explained to the accused persons. They denied to committing the crime and sought a trial. During their examination under Section 313 of the Code of Criminal Procedure, the accused persons stated that they are innocent and have been falsely implicated in the case.
In order to bring home the charges, the prosecution has examined as many as 09 witnesses, namely, Rupabai (PW-1), Mohanlal (PW-2), Chameli Bai (PW-3), Ganesh (PW-4), Dr. Ajad Kumar Jain (PW-5), Dr. S.S. Rathore (PW-6), Shankar Lone (PW-7), Rupchand (PW-8) and Rai Singh Gontiya (PW-9) and placed Ex.P/1 to P/10 and Ex.D/1 and D/2 the documents on record.
The learned trial Court after recording of evidence of both the parties acquitted the accused persons from the charges levelled against them. Hence, this appeal.
It is submitted by learned counsel for the present appellant/State that the evidence of victim Rupabai (PW-1) and Mohanlal (PW-2) is supported by the evidence of Chameli (PW-3) and Ganesh (PW-4) and they remained unshaken in their cross-examination. Though the offence has been registered after a delay of one month and four days but Rupabai has lodged the adam check instantly in the police station. There was no delay in lodging that adam check No.302/09. It is further submitted that the evidence of the victim has been supported by the statements of Dr. S.S. Rathore (PW-6) and the Radiologist Dr. Ajad Kumar Jain (PW-5). In light of their statements it is categorically established that Rupabai (PW-1) sustained simple injuries while Mohanlal (PW-2) sustained as many as three injuries and one of which was found to be grievous in nature. It was found on the right scapula. It is further submitted that though the contradictions, variations and omissions are there in the statements of the witnesses but they are not of material nature and could be overlooked by the learned trial Court. They do not affect the testimony of eye witnesses. Therefore, she prayed to allow the appeal, set aside the acquittal and to convict the accused persons and sentence them in accordance with law.
7 . Per contra, the learned counsel appearing on behalf of the respondents/accused persons has vehemently opposed the prayer on the ground that the FIR is belated by one month and four days. As far as adam check No.302/09 is concerned, no original report of such adam check has been produced by the prosecution. Therefore, in absence of the document of such report, it cannot be believed. It is further submitted that the FIR got prepared with the help of Advocate Mohan Gangrade and it is revealed from the statements of the witnesses that the FIR has been drafted by Advocate Mohan Gangrade. It is also submitted that there are material contradictions and variations in the statements of the witnesses and the injured persons. The contradictions qua the place of incident, number of injuries sustained by other injured are there. It is further submitted that no injured has seen the injury to the other injured persons which also seems to be doubtful. Rupabai (PW-1) has categorically stated in paragraph-19 of her statement that since the accused persons did not follow her direction, therefore, she lodged a false report with the help of Advocate Mohan Gandrade. In these circumstances, the story of the prosecution is not found to be proved. Similarly the statement of victim persons and other witnesses are not found to be believable and cogent. He relying upon a judgment of High Court of Himachal Pradesh at Shimla in case of State of Himachal Pradesh and Gopal Singh & others (Cr. Appeal No.355 of 2008), has prayed for rejection of appeal.
I have heard the learned counsel for the parties and perused the record meticulously.
Rupabai (PW-1) and Mohanlal (PW-2), both have supported the story of prosecution in their chief examination. Chamelibai (PW-3) and Ganesh (PW-4) have also supported their statements while as per the statement of Dr. S.S. Rathore (PW-6) Rupabai has sustained one injury on her left hand as lacerated wound which was caused by hard and blunt object and Mohanlal (PW-2) has sustained as many as three injuries by hard and blunt object in the forma of contusions for which they have been referred for x-ray examination. In the x-ray examination, it is found that Mohanlal (PW-2) has sustained grievous injury on right scapula on coracoid process in respect of which the report is Ex.P/1, which has been given by him but the learned trial Court has acquitted the accused persons on the ground that the FIR is totally doubtful and the statements have not been supported by the independent witnesses. There are contradictions, omissions and variations on material points in the statements of the prosecution witnesses.
At the outset when we examine the veracity of FIR Ex.P/10, it is found that the FIR has been lodged on 18.07.2009. Though it is stated that the information has been received on the date of incident i.e. 14.06.2009 but it was written as adam check No.302/09 but that adam check in original has not been adduced by the prosecution in evidence nor it has been exhibited and no reason for such omission has been offered by the prosecution. As per FIR Ex.P/10, it is delayed by around one month and four days but no satisfactory explanation of such delay is on record.
It is admitted by Rupabai (PW-1) that there was previous rivalry with the accuse persons on water for irrigation and the partition of the agricultural land. She further admitted in her cross-examination that she has been advised by her counsel that what statement is to be deposed before the Court. She has seen the police statement and FIR prior to deposing before the Court. She had engaged Shri Mohan Gangrade, Advocate in this case. It is also admitted by this witness that the incident took place on 14.06.2009 but the police has not registered the offence till 18.06.2009. When she taken her Advocate, Shri Mohan Gangrade then only the police has lodged the FIR Ex.P/10. Advocate Mohan Gangrade, has mentioned the factum of fracture of complaint's husband in the FIR. She also stated that her middle finger and ring finger being cut and her entire hand was cut in the incident. The police has sent her for medical examination but all these statements of this witness are in the forma of exaggerations. Moreover, the aforesaid statement raises doubt over the veracity of report Ex.P/10. She in paragraph-11 has categorically stated that the report was written by her Advocate Shri Mohan Gangrade. She has not narrated any fact therein. In light of these statements, the authenticity and reliability of the prosecution’s version become highly doubtful, as the possibility of embellishment, tutoring, and afterthought in the lodging of the FIR and deposition of the witness cannot be ruled out.
This witness has further stated that only Gulab was present at the place of incident who taken her to hospital. There were 40-50 persons present at the spot but she did not mention the name of anyone. She intimated to the police the names of the persons present on spot but police has not lodged her report. Her case was not being registered but when her Advocate is introduced then the case was registered against the accused persons. She again exaggerated her statement and deposed in paragraph-16 that the accused persons have committed marpeet with stick and she sustained injuries on every part of her body and she became unconscious. Rahul has also sustained injuries and became unconscious but these facts have not been substantiated by medical evidence. That apart as per the story of prosecution, Rahul has not sustained any injury in the incident.
Rupabai (PW-1) in the end of paragraph-18 has categorically admitted that since the accused persons were not complying her directions, therefore, she with the help of Advocate Shri Mohan Gangrade got registered a false case against the accused persons. The admission of PW-1 in aforesaid terms render the statement of PW-1 and other witnesses doubtful qua the incidence. She further in paragraph-21 has reiterated the previous rivalry between the parties. She in paragraph-22 has admitted that in the spot map Ex.P/4, the place of incident was not rightly mentioned where her husband has been beaten. She further admitted that her mother-in-law resides in the house of the accused persons and the accused persons did not let her to join the marriage of her daughter, therefore, she was angry and wanted that the accused persons be punished.
Mohanlal (PW-2) has admitted in his cross-examination about the previous rivalry between the parties. Moreover, he also admitted in the cross-examination that the date, time and the sequence of incident has been read over to him by Advocate Shri Mohan Gangrade before deposing in the Court. He further admitted that at the time of lodging of FIR, he remained unconscious and admitted in the hospital. He remained unconscious for half and hour after reaching to the hospital. The accused persons have not committed marpeet on the public road. Then he improved the statement that the accused persons have committed marpeet on the public road. He further stated that he has given the statement to the police after 20 days of the incident but that statement is not appended with the record for which there is no explanation or reason on record. He further in paragraph-12 has stated that he could not reach at the spot where marpeet was being committed with his son and wife. He also stated various injuries sustained by him which has further not been corroborated from the statement of the concerning doctor who had examined him. He admitted the fact that when Advocate Mohan Gangrade has submitted the application to the Superintendent of Police then the police proceeded further. He further admitted that as per the spot map Ex.P/4 no incident took place with him at the spot indicated in Ex.P/4. He further admitted in paragraph-18 that with the help of Advocate Mohan Gangrade the police has prepared the case and lodged the report Ex.P/10. When marpeet was being committed with his wife and son, he was not on spot. He was in the market and when he reached at home and going to his field on his bicycle then marpeet was committed with him and at that time his wife and son were not there. The FIR has been lodged on 14.06.2009 between 12:00 to 01:00 a.m. by him but no such report is on record and for which no reason has been assigned by this witness.
Chameli (PW-3) has admitted in her cross-examination that she has not given any statement to the police. She has given a prior statement in the Court. She has stated that she deposed before the Court that she was going to fetch water from the well but such fact does not find place in her statement.
Ganesh (PW-4) has admitted that they have taken the help of Advocate Mohan Gangrade and with the help of him, the report has been lodged. He is the relative of victim persons. He is the son of injured Mohanlal (PW-2). He further admitted that his father reached on spot after the incident happened with his mother. He further stated various injuries sustained by his mother and father but in respect of which the variation is on record. He also admitted in the last line of paragraph-13 that at the time of incident, he and her aunt Chameli (PW-3) were in another field which is around 300 mts. away from the place of incident. Witnesses Chameli (PW-3) and Ganesh (PW-4) are not independent witnesses. There is no corroboration from the independent witness as no independent witness has been examined on behalf of the prosecution.
In light of the aforesaid factual scenario, the observation of the learned trial Court cannot be said to be illegal, perverse or faulty. The learned trial Court on proper appreciation of the evidence on record has rightly given finding of acquittal of the respondent/accused persons. The prosecution has failed to establish its case with cogent and reliable evidence beyond reasonable doubt. The accused persons in light of aforesaid discussions are certainly entitled to get the benefit of doubt in this case.
In case of 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 case of 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 discussions 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 persons from the charges levelled against them. There is no ground to interfere with the findings of the trial Court.
Ex cosequenti, while affirming the findings of acquittal of the respondents/accused persons by learned trial Court, the appeal being sans merit, is hereby dismissed.