State Of Chhattisgarh Vs Shrilal Dhurvey

This acquittal appeal filed by the appellant/State arises out of the judgment dated 13.01.2017 passed by the Sessions Judge, Kabirdham (Kawardha), Chhattisgarh, in Sessions Case No. 25/2016, whereby the learned trial Court, while extending the benefit of doubt, acquitted the accused/respondent of the charge under Section 302 of Indian Penal Code (for short, ‘IPC’), but convicted him for the offence under Section 323 of IPC and sentenced him to undergo rigorous imprisonment for six months.

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Case of the prosecution, in brief, is that on 25.06.2016 at about 07:30 a.m., PW-5 Smt. Durpati alias Draupadi Bai lodged an FIR (Ex.P-9), stating therein that on 24.06.2016, her son- Bhagat Singh had gone to attend a Chhatti ceremony at the house of one Kanshiram Gond in the village. At about 09:00 p.m., accused- Shrilal Dhurwey, after consuming liquor, quarreled with her and slapped her twice. Thereafter, she informed her son- Bhagat Singh, about the assault and asked him to return home. At about 10:00 p.m., Bhagat Singh (hereinafter referred to as ‘the deceased’) returned home and questioned the accused regarding his conduct, whereupon the accused became enraged and assaulted Bhagat Singh twice on the head with a tangiya kept in the house. As a result, deceased- Bhagat Singh sustained grievous injuries and succumbed thereto. The said incident was also witnessed by PW-2 Naval Singh, brother of the deceased. Thereafter, Merg Intimation (Ex.P-8) was recorded, inquest proceedings were conducted vide Ex.P-2, and the dead body of the deceased was sent for post-mortem examination, which was conducted by PW-9 Dr. Devendra Kishore Belchandan. As per post-mortem report (Ex.P-13), the cause of death was coma and shock due to head injury (compression of the brain stem) along with internal organ haemorrhage and the nature of death was opined to be homicidal. The injured PW-5 Smt. Draupadi Bai was also sent for medical examination and PW-11 Dr. Astha Mishra examined her and gave MLC report vide Ex.P-18.

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During the course of investigation, plain soil and blood-stained soil were seized vide Ex.P-3. The accused/respondent was taken into custody vide Ex.P-19. Vide Ex.P-10, memorandum statement of the accused/respondent was recorded, pursuant to which, one iron axe

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(Tangiya) fitted with a bamboo handle was seized vide Ex.P-11. Vide Ex.P-12, one white-coloured blood-stained vest and one half-pant were seized. The seized articles were sent to the FSL for chemical examination and as per the FSL report (Ex.P-24), human blood was found on Articles D-1 and E-3, though the blood group could not be determined. Blood was also found on Articles ‘A’, ‘B’, ‘D-1’ and ‘E-2 to E-4’.

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Statements of the witnesses were recorded and after completion of the investigation, a charge sheet was filed against the accused/respondent before the concerned trial Court. The accused/respondent abjured the guilt and prayed for trial.

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The trial Court, after hearing learned counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent of the charge under Section 302 of the IPC, however, it convicted him for the offence under Section 323 of the IPC.

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Learned counsel for the appellant/State submits that the learned trial Court is not justified in acquitting the accused/respondent of the offence under Section 302 of IPC by recording perverse findings. She further submits that there is ample evidence available on record, particularly the testimonies of PW-5 Smt. Draupadi Bai, an injured witness and PW-2 Nawal Singh, brother of the deceased, which clearly connects the accused/respondent with the offence in question. Despite such cogent and clinching evidence, the learned trial Court committed a grave error in acquitting the accused/respondent. Therefore, the impugned

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judgment of acquittal suffers from perversity and illegality and is liable to be set aside.

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On the other hand, learned counsel for the accused/respondent supports the impugned judgment insofar as it relates to the offence under Section 302 of IPC and submits that there is no cogent or clinching evidence on record to establish that the respondent is the perpetrator of the crime in question. He also submits that there are material contradictions and omissions in the statements of the prosecution witnesses and that their testimonies do not corroborate with each other. Thus, the learned trial Court, after evaluating the entire evidence on record, has rightly acquitted the accused/respondent. Therefore, the appeal filed by the State deserves to be dismissed.

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We have heard learned counsel for the parties and perused the material available on record.

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At the very outset, we would firstly consider the scope of interference in an appeal against the judgment of acquittal, for which, it would be profitable to notice the relevant principles of law laid down by their Lordships of the Supreme Court in the matter of Constable 907 Surendra Singh and another v. State of Uttarakhand¹ , whereby in Para11 & 12, it has been held that the High Court should interfere in the order of acquittal, if the same suffers from perversity and is based on misreading of material evidence etc. and observed as under:

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“ 11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka , (2024) 8 SCC 149 , a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:

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1 2025 INSC 114

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“38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.

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This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) 6 (2024) 8 SCC 149

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“29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42)

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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 Criminal Procedure Code, 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 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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Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v.

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State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8)

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“8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

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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;

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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

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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.”

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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:

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41.1. That the judgment of acquittal suffers from patent

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perversity;

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41.2. That the same is based on a misreading/omission to consider material evidence on record; and

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41.3. 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.”

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12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and 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.”

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala² has considered the scope of interference in Appeal against

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acquittal, which reads as under:-

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2 (2022) 8 SCC 440

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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11.Thus, in light of the above-quoted guidelines, we have to examine whether the findings recorded by the learned trial Court suffer from patent perversity or the same is based on misreading/omission to consider material evidence on record and whether two reasonable views are possible or only the view consistent with the guilt of the accused is possible from the evidence available on record.

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The first question for consideration would be whether the death of the deceased-Bhagat Singh was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-13) in which cause of death of deceased was opined to be coma and shock due to head injury (compression of the brain stem) along with internal organ haemorrhage and nature of death was opined to be homicidal , proved by Dr. Devendra Kishore Belchandan (PW-9), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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The next question that arises for consideration is whether the learned trial Court is justified in acquitting the accused/respondent of the offence under Section 302 of the IPC.

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In the present case, the learned trial Court, while recording the finding of acquittal against accused-respondent observed that although PW-5

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Smt. Durpati alias Draupadi Bai and PW-2 Nawal Singh Dhruve, eyewitnesses to the incident, have stated that on 24.06.2016, at about 09:00 p.m., accused- Shrilal Dhurwey, after consuming liquor, quarreled with PW-5 Smt. Draupadi Bai and slapped her twice and thereafter PW-5 informed her son- Bhagat Singh, about the assault, pursuant to which, at about 10:00 p.m., deceased returned home and questioned the accused regarding his conduct, whereupon the accused became enraged and assaulted the deceased twice on the head with a Tangiya kept in the house, as a result, deceased- Bhagat Singh sustained grievous injuries and succumbed thereto, but on the contrary, the medical evidence does not support this version. PW-9 Dr. Devendra Kishore Belchandan, who conducted the post-mortem examination of the deceased, clearly opined that the injuries found on the body of the deceased were caused by a hard and blunt object and not by a sharp-edged weapon, and that the deceased could have sustained such injuries by falling on a grinding stone. Thus, the medical evidence does not conclusively support the prosecution case of assault by Tangiya . This inconsistency between the ocular testimony and the medical evidence strikes at the root of the prosecution case and creates a serious doubt about the manner in which the assault is alleged to have been committed. Further, the learned trial Court observed that the recovery of the alleged weapon ( tangiya ) pursuant to the memorandum statement of accused/respondent Ex.P-10 is also not free from doubt. The independent seizure witnesses namely PW-6 Garib Singh and PW-7 Laxmi Chand have not consistently supported the prosecution version regarding the place of concealment and manner of recovery. Their testimonies materially contradict each other as well as the Investigating Officer (PW-10 Motilal Patil). Moreover,

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PW-10 Motilal Patil, Investigating Officer himself admitted that he could not state from where exactly the alleged Tangia was produced by the accused/respondent at the time of seizure proceedings. These contradictions and omissions in the testimonies of the seizure witnesses and the Investigating Officer cast serious doubt on the authenticity and reliability of the alleged recovery.

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This apart, FSL (Ex.P-24) report further weakens the prosecution case, as the blood found on the seized Tangiya was disintegrated and could not be certified as human blood. Though human blood was found on the vest of the accused, but the blood group could not be determined and was not linked with the deceased. Thus, the prosecution has failed to establish a reliable nexus between the seized articles and the injuries found on the deceased. Besides above, the prosecution has also relied upon the alleged extra-judicial confession made by the accused/respondent to PW-3 Radheshyam. However, although PW-3 Radheshyam has stated that the accused confessed before him about assaulting the deceased with a tangiya , but in cross-examination, he admitted that the deceased was his nephew and that despite being informed of the incident, he did not go to see him that night. Such conduct appears unnatural, particularly when he resides in the same village. No explanation has been offered by him for this omission. Consequently, the alleged extra-judicial confession does not inspire confidence and is unsafe to rely upon.

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Thus, from perusal of the aforesaid findings of the learned trial Court, it stands established that the prosecution has proved beyond reasonable doubt that on the date of the incident, the accused/respondent quarreled with PW-5 Smt. Draupadi Bai and voluntarily caused hurt to her.

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However, the prosecution has failed to prove beyond reasonable doubt that the accused/respondent caused the death of the deceased- Bhagat Singh by assaulting him with a Tangiya . Accordingly, the learned trial Court is fully justified in convicting and sentencing the accused/respondent for the offence under Section 323 of the IPC and in acquitting him of the charge under Section 302 of the IPC. The findings so recorded by the learned trial Court are findings of fact based on the evidence available on record, they are neither perverse nor contrary to the record and, therefore, do not warrant any interference by this Court.

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17.Consequently, the acquittal appeal filed by the Appellant/State is devoid of merit and is hereby dismissed.

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Sd/Sd/- (Rajani Dubey) (Radhakishan Agrawal) Judge Judge

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Akhilesh

State Of Chhattisgarh v. Shrilal Dhurvey

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State Of Chhattisgarh v. Shrilal Dhurvey

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