Dismissed

State of Chhattisgarh v. Rameshwar Prasadn Gabel and Ors.

Chhattisgarh HC1 Dec 2012ACQA/4/2008

Case brief

AI extract

What is this about?

The High Court dismissed an acquittal appeal by the State. Upholding the trial court's judgment, the High Court held that the solitary eyewitness's testimony was unreliable due to unexplained delay, contradictions, and lack of corroboration, warranting acquittal.

What did the court decide?

Appeal dismissed; judgment of acquittal of respondents affirmed.

State of Chhattisgarh Vs Rameshwar Prasadn… — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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Division Bemh

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IN THB HIGILCOURT OF JUDICATURE AT BILASPUR (C.G.)

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Cr. M.P. NpJ S] 7 20 t^

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ACQUITTAL APPEAL No. O 4- I 2008

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APPLICANT/

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APPELLANT

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State of Chhattisgarh, Through District Magistrate,

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District Janjgir Champa,(C.G.)

VERSUS

NON-APPLICANTS

RESPONDENT

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Rameshwar Prasad Gabel, S/ o Bhushan Prasad, .. :^) Aged about —34years R/o Village Saraskela,

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P.S. Dabhara,

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District Janjgir Champa (C. G.)

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Rajkumar @ Golu

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S/o Late Shri Devendra Kumar Verma,

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Aged about -21 years

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R/o Village Saraskela,

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P.S. Dabhara, Presently R/o

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Bhathapara, P.S. Bhathapara,

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District Raipur (C.G.)

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Chandrakumar @ Dularwa

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S/o Late Shri Prem Singh Verma,

Aged about -81 years

R/o Village Faguram,

P.S. Dabhara -^

District Janjgir Champa (C.G.) ^ : ^y^M^:'•,.^^y^ :"'3^€::

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APPLICATIQN FQR GRANT OF LEAVE TO APPEAL UNDER SECTION STSOT^AND MEMORANDUM OF APPEAL UNDER ^ECTIQN 378( lCt)F THE CODE OF CRIMINAL PROCEDURE, 1973

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, Acquittal Appeal No.4 of 2008 Page 1 of6

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HIGH COURT OF CHHATTISGARH ATBILASPUR

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DIVISION BENCH:

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Coram: HON'BLE MR T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ.

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Acauittal Appeal No.4 of 2008

APPELLANT

RESPONDENTS

State of Chhattisgarh

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Versus

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Rameshwar Prasad Gabel

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Rajkumar @Golu

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Chandrakumar @ Dularwa

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(CRMINAL APPEAL UNDER SECTION 378 (1) OF THE CODE OF CRIMINAL PROCEDURE, 1973)

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Mr.Sandeep Yadav, Deputy Government Advocate for the appellanVState.

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Mr.B.M.K.Bajpai, counsel for the respondents.

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JUDGIVIENT

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(Passed on 1st December, 2012)

PerT.P.Sharma,J.:-

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By this appeal under Section 378(1) of the Cr.P.C. the appellanVState has challenged the legality and propriety of the judgment of acquittal dated 28.11.2007 passed by the Additional Sessions Judge, Sakti, Distt.Janjgir Champa, in S.T.No.203/2006, whereby the trial Court has acquitted the respondents of the charge of Sections 302 and 201 read with Section 34 of the IPC for causing homicidal death of Gajendra Gabel amounting to murder and causing disappearance of evidence of criminal case in sharing common intention.

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As per case of the prosecution, one unknown murdered body was found on 6.10.2003 near safia canal. Merg was recorded vide Ex.P/1 on 6.10.2003. After summoning the witnesses vide Ex.P/2 inquest was prepared over the body of the cl@ceased vide Ex.P/3. Spot map was prepared by patwari vide Ex.P/4. Artides fpyrid near the place pf incident

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Acquiftal Appeal No.4 of 2008 Page2of6

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were seized vide Ex.P/6. Finally dead body was identified as the body of Gajendra on 10.10.2003 vide Ex.P/7 on the basis ofclothes and chappal. Dead body of the deceased was sent for autopsy to Community Health Centre, DabharavideEx.P/18. Dr.N.P.Mishra (PW-12) conducted autopsy vide Ex.P/19 and opined that mode of death was asphyxia as a result of strangulation. Matter was investigated. Finally Jugnu Chouhan (PW-14) was interrogated. His statement under Section 164 of the Cr.P.C. has been recorded by the Chief Judicial Magistrate, Janjgir on 8.2.2006. Thereafter, finally matter was investigated and charge-sheet was filed before the Additional Chief Judicial Magistrate, Sakti, who in turn, committed the case to the Court of Sessions, Bilaspur and after creation of new District Janjgir-Champa case has been transferred to Sessions Division, Janjgir-Champa, from where the Additional Sessions Judge, Sakti, received the case on transfer for trial.

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In order to prove the case of the prosecution, the prosecution has examined as many as 27 witnesses. Accused were examined under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and claimed innocence and false implication in crime in question.

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After providing opportunity of hearing to the parties, the First Additional Sessions Judge has acquitted the respondents on the ground that evidence of sole solitary eyewitness Jugnu Chouhan (PW-14) does not inspire confidence and trustworthy and not sufficient for conviction of the respondents.

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We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court.

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Learned Deputy Government Advocate for the appellanVState submits that although this is appeal against the judgment of acquittal passed by the trial Court who has considered the evidence of the prosecution witnesses but by disbelieving the evidence of solitary witness Jugnu Chouhan (PW-14) on the ground that his statement has been recorded afterconsiderable time the trial Court has committed illegality. Except the fact that his statement has been recorded after about three years there is '

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nothing jn his evidence to discredit his testimony. ; :

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, Acquittal Appeal No.4 of 2008 Page3of,6

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On the other hand, learned counsel for the respondents opposes th( appeal and submits that conviction can base on the evidence of soldiery evidence and delay in recording statement of eyewitness/solitary witness by itself is not a ground for rejecting the testimony of such witness, if same is otherwise corroborated by the evidence of other person or independent source. In the present case, evidence of solitary witness Jugnu Chouhan (PW-14) does not inspire confidence and trustworthy, even it is difficult to assess and find out that how he was traced by the investigating agency after lapse of three years that he has seen the incident. His evidence appears to be unnatural and not sufficient to rely. After appreciating the evidence available on record, the trial Court has rightly acquitted the respondents by rejecting his testimony.

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This is appeal against the judgment of acquittal. In case of appeal against the judgment of acquittal, the appellate Court is not required to disturb the finding of the trial Court on the ground that view taken by the trial Court is not correct or there is some infirmity in the judgment impugned.

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This is appeal against the judgment of acquittal filed by the State under Section 378(1) of the Cr.P.C. in exercising the appellate jurjsdiction under Section 378(1) or under Section 378 ofthe Cr.P.C. The appellate Courts are required to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box and also required to keep in mind that even atthat stage, the accused was entitled to benefit ofdoubt. The doubt should be such as a reasonably person would honestly and conscientiously entertain as to the guilt ofthe accused.

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10.As held by the Supreme Court in C.Antony v. Raghavan Nair1, unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective andalso as held by the Supreme Court in Ramanand Yadav v. Prabhunath Jha2, the appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the

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1AIR 2003 SC 182 2AIR 2004 SC 1053

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AGquittal Appeal No.4.pf.20Q8 Page 4 of6

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impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

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ll.The scope of interference in appeals against acquittal is well settled. In Tota Singh and another v. State of Punjab , the Supreme Court has held in para 6 as under:-

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"........ :.the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere within an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration ofthe evidence is erroneous."

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12.While exercising the appellate jurisdiction against judgment of acquittal the High Courts or the appellate Courts are fully empowered to appreciate and reappreciate the evidence adduced on behalf of the parties while reversing the judgment of the trial Court. The appellate Court is required to discuss the grounds given by the trial Court to acquit the accused and then to dispel those reasons.

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In the light of aforesaid dictum and proposition of law, we have examined the evidence adduced on behalfoftheprosecution.

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14.1n the present case, homicidal death as a result of fatal injury i.e. strangulation found over vital part of body of deceased Gajendra Gabel has not been substantially disputed on behalf of the respondents, on the other hand, same isalso established by the evidence of Dr.N.P.Mishra (PW-12) and autopsy report vide Ex.P/19. Death of deceased Gajendra Gabel was homicidal in nature.

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3AIR1987 SC 1083

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Acquittal Appeal No.4 of-2008 Page5 of6

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15.As regards the complicity of the respondents in crime in question, undisputedly Jugnu Chouhan (PW-14) has examined as solitary eyewitness of the incident. As per case of the prosecution, incident took place between 5/6.10.2003. First time he has been examined by the prosecution on 5.2.2006, his statement has been recorded under Section 164 ofthe Cr.P.C. vide Ex.P/25 on 8.2.2006. First time he was examined after more than two years of the incident by the investigating agency. Nothing has been shown by the prosecution that how the investigating officer came to know that Jugnu Chouhan (PW-14) has witnessed the incident and was solitary eyewitness of the incident. As per his detail evidence, he was accompanying the assailant and the deceased, he was present on the spot where dead body was thrown after causing injury. As per para 3 of hisevidence, after 10-15 days he went to Uttar Pradesh for his livelihood, he was threatened by the respondents and they promised to pay Rs.5000/-. As per para 8 of his evidence, first time he went for his livelihood, he came back to his house after 7 to 8 months, thereafter he did not go for livelihood and he was continuously residing in his village Saraskela, but first time he was examined by the investigating officer on 5.2.2006. Delay in recording the statement of eyewitness by itself is not fatal to the prosecution, if it is explained properly and only on the ground of delay in recording statement, evidence of witness including evidence of solitary witness cannot be discarded.

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16.1n the present case, investigating agency was not having information that Jugnu Chouhan (PW-14) has witnessed the incident. The prosecution has not collected any evidence to show that how the investigating agency came to know that Jugnu Chouhan has witnessed the incident. Jugnu Chouhan himself has not deposed that on 5.2.2006 he himself has gone to Police Station and has given his statement that he has witnessed the incident. As per para 8 of his evidence, after commission of incident he went Uttar Pradesh for his livelihood,he came back after 7 to 8 months, thereafter he has notgone anywhere for his livelihood and he was contihuoysly residing in his village. Even after coming back from Uttar Pradesh he was silence for about more than one year. His evidence isfull ofomission and contradiction, his evidence appears to be unnatural;: ; .

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: Acquittal Appeal No.4 of 2008 Page6of6

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17.0nclosescrutinyofevidenceofJugnu Chouhan (PW-14), weare unable to accept his evidence as fully reliable or partly reliable witness. His evidence is full of suspicious.

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IS.After appreciating the evidence available on record and considering the evidence of Jugnu Chouhan (PW-14), no option except to acquit the respondents was left to the trial Court.

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19.0n close scrutiny of the evidence, we are unable to take different view from the view taken by the trial Court.

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Consequently, we do not find any force in the appeal filed against the judgment of acquittal by the State. The appeal being devoid of merit is liable to be dfsmissed and is hereby dismissed.

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Sd/T.P. Sharma Judge

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Sd/R.N. Chandrakar Judge

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B/-

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State of Chhattisgarh v. Rameshwar Prasadn Gabel and Ors.

Case brief

What is this about?

What did the court decide?

State of Chhattisgarh v. Rameshwar Prasadn Gabel and Ors.

Case brief

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