State Of Chhattisgarh Vs Ramsai Sahu And Anr.

1 . Since common question of law and facts are involved in both the appeals and have been arisen from Sessions Trial No. 67/2009, they have been clubbed together, heard together and are being decided by this common judgment.

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2 . Ramsai Sahu has preferred criminal appeal under Section 374(2) of Cr.P.C. against the conviction for offence under Section 324 of I.P.C. and sentence awarded to undergo rigorous imprisonment for 1 year and fine of Rs.1000/-, whereas the State has preferred acquittal appeal against

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Ramsai Sahu & Kanhaiya Sahu, as both have been acquitted from the offence under Section 307 read with Section 34 of I.P.C. by the trial Court.

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3 . The case of the prosecution, in short, is that, on 01.11.2009 at 8:00 A.M., at village Banki, Police Station Mungeli, District Bilaspur, two accused persons Ramsai Sahu & Kanhaiya Sahu in furtherance of their common intention assaulted complainant Ganesh Singh Parihar (PW-4) by which, he suffered grievous injuries and thereby committed the offence under Section 307 & 307/ 34 of I.P.C. It is the further case of the prosecution that the appellants & complainant (PW-4) are neighbours and their house and badi are adjacent to each other. Appellant Ramsai Sahu had constructed a temporary shed for urination and urinal water used to flow towards the courtyard of the complainant (PW-4), which the complainant (PW-4) objected and on the date of offence, Ramsai started abusing and assaulted him by axe, by which he suffered grievous injuries leading to FIR vide Ex.P-6. Thereafter, MLC was conducted vide Ex.P-7, Axe was seized vide Ex.P-2 and Nazari-naksha was prepared vide Ex.P-4. After due investigation, both the appellants were charge-sheeted for the aforesaid offence before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for

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hearing and disposal in accordance with law, in which, the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

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4 . In order to bring home the offence, prosecution examined as many as 9 witnesses and exhibited 11 documents and the appellants-accused in support of their defence have neither examined any witness nor exhibited any document.

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5 . The trial Court, after appreciation of oral & documentary evidence on record, while acquitting the appellants herein for the offence under Section 307 & 307/34 of I.P.C. convicted appellant Ramsai for the offence under Section 324 of I.P.C. and sentenced him for 1 year’s rigorous imprisonment and fine of Rs.1000/-.

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6 . Mr. Anil Gulati, learned counsel for the appellants, would submit that the offence under Section 307 read with Section 34 and also Section 324 of I.P.C. is not established and the appellants are entitled for clean acquittal.

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7 . Mr. R.S.Marhas, learned State counsel would submit that the trial Court is absolutely unjustified for acquitting the appellants for the offence under Section 307 & 307/34 of I.P.C.

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8 . Mr. Anil Gulati, learned counsel for the appellants would oppose the appeal preferred by the State whereas Mr. R.S. Marhas, learned State counsel would oppose the prayer made by appellants.

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9 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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Acquittal Appeal No.130 of 2012

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10. By the impugned judgment, the trial Court has acquitted Ramsai Sahu for offence under Section 307 of I.P.C. and Kanhaiya Sahu for offence under Section 307/34 of I.P.C. holding that both appellants & complainant are neighbour to each other and Ramsai had constructed temporary shed for urination and flow of urinal water was made towards the courtyard of complainant (PW-4) and on being objected, Ramsai assaulted him by axe, which was witnessed by Meera Bai (PW-5) & Piyariya Bai (PW-3). As such, relying upon the statement of Dr. Vibha (PW-7), the trial Court has held that the injuries were simple in nature. The trial Court has also held that it could not be proved by the prosecution that the injuries caused to the complainant is dangerous to life or sufficient in ordinary course of nature to cause death

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and thereafter, proceeded to acquit the accused (Ramsai & Kanhaiya) for offence under Section 307 & 307/34 of I.P.C.

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11. After hearing learned counsel for the parties and after going through the record, in our considered opinion, the finding recorded by the trial Court for acquitting the two appellants for offence under Section 307 & 307/34 of I.P.C. is well merited, warrants no interference.

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12. The Supreme Court in the matter of Anil Kumar Gupta v. State of Uttar Pradesh1 , held as under :

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“15. In Ramesh Babulal Doshi [(1996) 9 SCC 225 : 1996 SCC (Cri) 972] this Court held that: (SCC p. 229, para 7)

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“ 7 . … the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then—and then only —reappraise the evidence to arrive at its own conclusions.”

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1 (2011) 11 SCC 24

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16. In Dwarka Dass [(2003) 1 SCC 204 : 2003 SCC (Cri) 264] , this Court following the decision in Ramesh Babulal Doshi [(1996) 9 SCC 225 : 1996 SCC (Cri) 972] , further observed that: ( Dwarka Dass case [(2003) 1 SCC 204 : 2003 SCC (Cri) 264] , SCC pp. 206-07, para 2)

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“ 2 . … there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice….”

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17. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] this Court reappreciating the aforesaid principles, further observed that: (SCC p. 422, paras 16-17)

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“ 16 .… in case of acquittal, there is a double presumption in favour of the accused. Firstly , the presumption of innocence 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

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not weakened but reinforced, reaffirmed and strengthened by the trial court.

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17 . Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.”

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Having stated so, this Court also held that an appellate court has full power to reappreciate, review and reconsider the evidence upon which the order of acquittal is founded. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court.

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13. Reverting to the facts of the case in light of the principles laid down by the Supreme Court in the matter of Anil Kumar Gupta (supra) , we find that the finding of fact recorded by the trial Court acquitting the appellants herein is neither palpably wrong nor manifestly erroneous or demonstrably unsustainable. As such, we do not find any merit in this appeal and accordingly, the acquittal appeal filed by the State deserves to be and is hereby dismissed.

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Criminal Appeal No.571 of 2010

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14. The trial Court, while acquitting accused Kanhaiya Sahu, convicted appellant Ramsai for the offence under Section 324 of I.P.C. and sentenced him to undergo 1 year rigorous

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imprisonment along-with fine of Rs.1000/-. The trial Court has clearly recorded a finding that on the dispute of flow of urinal water, appellant Ramsai is said to have assaulted the deceased and injuries have been examined by Dr. Vibha (PW-7), in which, it has not been stated that the injuries sustained by the complainant were simple or grievous in nature and thereby, the trial Court has recorded a finding that the injuries caused to the complainant are simple in nature. Since the injuries were caused by axe as per the statement of eye-witness Meera Bai (PW-5) & Piyariya Bai (PW-3), appellant Ramsai has been convicted for offence under Section 324 of I.P.C. which in our considered opinion is a correct finding of fact based on evidence available on record.

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15. However, learned counsel for the appellant would submit that the appellant & complainant both are neighbours and the incident occurred on account of objection being made by the complainant. Considering the statement of the complainant (PW-4), it is clear that the appellant herein had constructed temporary shed for urination, which was objected by the complainant and pursuant to which, the dispute arose between the complainant & appellant and in continuation thereof, the appellant is said to have abused and assaulted the complainant. As such, there was sudden quarrel on

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account of dispute of flow of urinal water towards complainant’s house and considering the fact that incident is of 01.11.2009 and both appellant & complainant are neighbours, we deem it expedient to sentence the appellant for the period which he had already undergone i.e. 1 month and 17 days for offence under Section 324 of I.P.C.

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16. In view of the aforesaid discussions, the acquittal appeal of the State is dismissed and criminal appeal of the appellant Ramsai is allowed to the extent indicated herein above.

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17. Appellant Ramsai is already on bail, he need not surrender; however, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the Cr.P.C.

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18. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Ashok

State Of Chhattisgarh v. Ramsai Sahu And Anr.

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State Of Chhattisgarh v. Ramsai Sahu And Anr.

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