Dismissed

State of Chhattisgarh v. Devraj Sahu

Chhattisgarh HC1 Sept 2023CRMP/992/2022

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed the State's special leave petition against an acquittal under Sections 304 and 304(A) IPC. Upholding the trial court's finding that the prosecution failed to prove guilt, the bench held there were no compelling reasons to disturb the acquittal despite the State's reliance on a medical opinion.

What did the court decide?

CRMP application seeking leave to appeal rejected and the appeal is dismissed.

State of Chhattisgarh Vs Devraj Sahu — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 992 of 2022

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State Of Chhattisgarh Through – Police Station Gatapar, District Rajnandgaon (C.G.)

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---- Petitioner

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Versus

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Devraj Sahu, S/o Santram Sahu, aged about 51 years, 2. Moujiram Gond, S/o Late Kangluram, aged about 68 years,

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Both R/o Village Chichka, Police Station Gatapar, District Rajnandgaon (C.G.)

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---- Respondent

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For Petitioner/State : Smt. Madhunisha Singh, Dy. Advocate General

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri NK Chandravanshi , Judge

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Order on Board

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Per NK Chandravanshi, Judge

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01.09.2023

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The State has sought leave to appeal against impugned judgment of acquittal dated 07.12.2021 passed in Session Case No.01/2019 by the Court of Upper Sessions Judge, Khairagarh, District Rajnangaon by which the respondents/accused have been acquitted of the charge under Section 304 of the Indian Penal Code and in alternatively under Section 304 (A) of the IPC.

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2 . Prosecution story, in brief, is that on 20.03.2019, respondent/accused No. 2 – Moujiram Gond lodge a morgue report stating therein that his daughter Pratima Gond was not well and being having treated by quack i.e. respondent

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No. 1/accused Devraj Sahu. On 19.8.2018, as her condition was not well, the accused persons drank kerosene oil to her, as a result thereof, her health condition started deteriorating, thereafter, she was taken to Govt. Hospital Khairagarh, where she was declared dead. Subsequently, the morgue intimation was registered on 24.03.2018 at Police Station Gatapar, District Rajnandgaon. During the morgue enquiry, an opinion was sought from the Chief Medical Officer, District Rajnandgaon, who informed that respondent/accused No. 1 is not the authorized for practicing as a Doctor and, thereafter, FIR vide Ex.P-21 was registered against the accused persons for the offence under Sections 304, in alternative 304 (A) of the IPC. After usual investigation, charge sheet against the respondents/ accused was filed before trial Court under Sections 304 & 304 A of IPC before the Upper Chief Judicial Magistrate, Khairagarh, Rajnadgaon, which was committed to the Court of Sessions for hearing and disposal in accordance with law.

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Charges under Sections 304 IPC and 304A IPC was framed against respondents/accused, which were read over and explained to them, they abjured their guilt and entered into defence by submitting that they are innocent.

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So as to hold the respondents/accused guilty, prosecution has examined as many as 18 witnesses and

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exhibited 22 documents in support of its case. Statements of the respondents/accused were recorded under Section 313 of the Cr.P.C, in which they abjured guilt and pleaded innocence and false implication. The respondents/accused has not examined any witness in support of their defence but exhibits documents Ex.D-1 to D-4 i.e. statements of Devi Singh Meshram, Girdhari Ram Meshram, Ramkishun Meshra & Jainarayan Netam, respectively.

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The learned trial Court after appreciating the evidence available on record, acquitted the respondents/accused of the offence for which they have been charged with by giving them the benefit of doubt.

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Learned counsel for the State/petitioner would submit that the learned trial Court has acquitted the respondents on the ground that the prosecution has failed to prove any of the charges against the respondent/accused and they were acquitted by giving the benefit of doubt. She would submit that learned trial Court failed to appreciate the evidence of Dr. Chandrashekhar Dhritlahre (PW-11), who conducted postmortem of the deceased and prepared a postmortem report (Ex.P-12), in which, he categorically opined that cause of death is asphyxia as a result of due aspiration of kerosene and its rare complications. Further, learned trial Court has failed to

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consider the above said medical report while acquitting the respondens/accused for the alleged offences. Thus, the learned trial Court is absolutely unjustified in acquitting the respondent/accused of the aforesaid offence by recording a finding which is perverse to record. Therefore, leave deserves to be granted.

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We have heard learned counsel for the State/petitioner and gone through the records of the trial Court.

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From the perusal of the impugned order and material available on record, it is apparent that the trial Court has acquitted the respondents /accused solely on the basis court statement of son of deceased namely Shivsagar Dhurve (PW-1), who is living with the deceased and his maternal grandfather (respondent No. 1/accused), who has stated in his deposition that on the date of incident, as her mother was feeling seriously ill, she herself drank the kerosene oil, mistaking it for cough syrup.

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Thus, it is required to be seen the deposition of Shiv Sagar Dhurve (PW-1), who is son of deceased for just decision of the case.

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Shiv Sagar Dhurve (PW-1) has admitted in paragraph 7 of his cross-examination that his mother Pratima Gond used to suffer from cough and she had decease of TV. On the date of

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incident, her mother was paralyzed. In paragrpah 8, he has admitted that when his mother's health condition deteriorated, his mother had wrongly drank kerosene oil, mistaking it for cough syrup. He has also admitted in his deposition that appellants had not drank kerosene oil to his mother and also admitted the fact that respondent No. 1/accused does not practice as a doctor, rather he does farming. All these aforesaid facts, as has been stated by Shivsagar Dhuve (PW-1) , have been fully supported by other prosecution witnesses i.e. Sanjay Kumar Dhankar (PW-2), Smt Phoolbail (PW-3), Kotwar Harilal Khobragadhe (PW-4), Devi Singh Meshram (PW-5), Girdhari Ram Meshram (PW-6), Ramkishun Netam, Jainarayan Netam (PW-8) & Mahaveer Sahu (PW-9) by staying that since the health condition of the deceased was deteriorating, she was taken to Govt. Hospital, Khairagarh, where she was declared dead during the course of treatment. Further, all the witnesses have not supported the case of the prosecution and have been declared hostile by the prosecution. Even considering the evidence of aforesaid these witnesses, it is evident that they have not deposed anything against respondent/accused and have not supported the case of the prosecution. The trial Court after appreciating the entire evidence on record has arrived at the finding that the prosecution has failed to prove the charges against the

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respondent/accused and in the opinion of this Court, it cannot be held that the findings recorded by the learned trial Court, acquitting the accused/respondent from aforesaid offences, are perverse or contrary to record.

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In the case of Chandrappa v. State of Karnataka, [2007 (4) SCC 415], Hon’ble Supreme Court has held that appellate court must bear in mind that in case of acquittal, there is double presumption in favour of accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Para 42 of the judgment is reproduced below:-

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts 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 of law.

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(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 emphasise 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.

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(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

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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.

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(5) If 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.”

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The Supreme Court in case of Babu Vs. State of Kerala, [(2010) 9 SCC 189] has laid down the principle to be followed in appeal against the acquittal under Section 378 of the Cr.P.C. and it has been held that Appellate Court should not ordinarily set aside acquittal in a case where two views are possible, though the views of Appellate Court may be the more probable one and held in para 12 as under:-

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" 12. This Court time and again has laid down

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the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more

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probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court."

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Thereafter, in Anwar Ali & Another Vs. State of Himachal Pradesh [(2020) 10 SCC 166] Supreme Court has reviewed its earlier decisions including Babu (supra) reiterating the principles laid down therein.

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Having considered the submissions of learned counsel for the petitioner and in view of the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C., we are of the considered opinion that the finding recorded by the learned trial Court that the prosecution has utterly failed to prove guilt of the respondent is based on evidence available

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on record. Thus, we do not find any compelling & substantial reasons to interfere with the judgment of acquittal recorded by the trial Court.

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