Gore Lal Kashyap Vs Sindhu @ Tarachand and Ors.

Since both the above-captioned appeals arise out of the same impugned judgment dated 21.03.2013, they are being heard together and disposed of by this common judgment.

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These acquittal appeals filed by the complainant and the State arise out of the judgment dated 21.03.2013 passed by the learned Additional Sessions Judge, Janjgir, District Janjgir-Champa (C.G.) in Sessions Case No.52/2012, whereby the learned trial Court acquitted the accused persons/respondent Nos.1 to 7 of the charges under Sections 147, 148, 149, 302/149 and 323/149 (two counts) of Indian Penal Code (in short, ‘IPC’).

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Case of the prosecution, in brief, is that on 28.11.2011, at about 8:00 p.m. in village Pauna within the jurisdiction of Police Station Pamgarh, due to previous enmity, accused persons/respondent Nos.1 to 7 allegedly formed an unlawful assembly and assaulted Ramayan Kashyap (hereinafter called as ‘deceased’) with sticks and farsa / battle axe near the threshing yard of one Nanki Bai. It is alleged that PW-10 Gorelal Kashyap and PW-12 Lakshman Kashyap were also assaulted during the incident. On the next morning, the dead body of deceased- Ramayan Kashyap was seen lying at the place of occurrence and on the report lodged by PW-10 Gorelal Kashyap, FIR (Ex.P-26) was registered against the accused persons.

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Thereafter, merg intimation was recorded vide Ex.P-25, inquest proceedings were conducted vide Ex.P-6 and the dead body of deceased was sent for post-mortem examination. PW-7 Dr. L.L. Sahu conducted the post-mortem and opined that the deceased died due to severe craniocerebral injury and heavy blood loss caused by multiple assaults and the nature of death of deceased was opined to be homicidal and gave PM report vide Ex.P-13. During investigation, accused persons/respondent Nos.1 to 7 were taken into custody vide Exs.P-38 to P-43. Memorandum statements of the accused persons were recorded vide Exs.P-9, P-15 to P-19 and P-31, pursuant to which, iron battle-axes and wooden sticks were seized vide Exs.P-10, P-20 to P-24, P-32 and P-37 respectively and sent for query report. However, as per the query report vide Ex.P-14, no human blood was found on the seized articles.

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After completion of the investigation, a charge sheet was filed against the accused persons/respondent Nos.1 to 7 before the concerned trial Court.

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The accused persons/respondent Nos.1 to 7 abjured their guilt and prayed for trial.

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The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused persons / respondents No.1 to 7 of the said charges leveled against them.

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Learned counsel for the State submits that the impugned judgment of acquittal passed by the learned trial Court is illegal, erroneous and contrary to the evidence available on record. He further submits that the learned trial Court erred in disbelieving the testimony of the eye-witnesses, who are natural witnesses and whose presence at the place of occurrence cannot be doubted. He also submits that the medical evidence supports the prosecution case and the recovery of weapons from the accused persons also corroborates the prosecution story. Therefore, the impugned judgment of acquittal suffers from perversity and illegality and is liable to be set aside.

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

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala¹ has considered the scope of interference in Appeal against acquittal, which reads as under:-

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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

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1 (2022) 8 SCC 440

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disturbed only by thorough scrutiny on the accepted legal parameters.”

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The first question for consideration is whether the death of the deceasedRamayan Kashyap was homicidal in nature. The trial Court has answered this question in the affirmative, relying upon the post-mortem report (Ex.P-13), in which the cause of death of the deceased was opined to be head injury causing brain damage and excessive hemorrhage due to multiple blows, as proved by Dr. L.L. Sahu (PW-7). The said finding is a finding of fact based on the evidence available on record. It is neither perverse nor contrary to the record, therefore, we hereby affirm the said finding.

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The next question for consideration is whether the accused persons are the perpetrators of the crime in question.

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Gorelal Kashyap (PW-10), who is the informant, brother of the deceased and an alleged eye-witness to the incident, stated that on the date of incident, his brother/deceased- Ramayan had gone to Pamgarh Court to meet their brother- Shivcharan, who was lodged in jail. According to him, when deceased-Ramayan did not return till evening he was waiting near the pan shop of PW-6 Sanjay. He deposed that when deceased - Ramayan and Suresh reached near the house of one Babulal, accused persons assaulted deceased with battle axe and sticks. When he attempted to intervene, accused persons also assaulted him with a sticks causing injuries to his hands. Thereafter, he ran to his house and informed PW-11 Prahlad and PW-12 Lakshman. When they reached near the place of occurrence, the accused persons also chased them away, therefore, they returned to their house. However, during cross-examination, this witness admitted that several facts stated by him in Court were not

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mentioned in the FIR (Ex.P-26) and in his police statement recorded under Section 161 Cr.P.C. (Ex.P-27). He further admitted that there had been previous criminal cases between his family members and the accused persons. He also admitted that he was standing at a distance of about fifty meters from the place of occurrence and he did not call any villagers nor did he attempt to rescue the deceased.

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Lakshman Kashyap (PW-12), younger brother of the deceased and also an alleged eye-witness to the incident, stated that PW-10 Gorelal came to the house shouting that the accused persons were assaulting deceasedRamayan with battle axes. Thereafter, he along with others went to the place of occurrence and saw deceased lying in a pool of blood and the accused persons standing there. According to him, when they attempted to go near the body of deceased the accused persons started throwing stones and therefore, they ran back to their house. However, in crossexamination, he admitted that many of the facts stated by him were not mentioned in his police statement recorded under Section 161 Cr.P.C. (Ex.P-30) and that they did not inform any villagers about the incident during the night.

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Prahlad Kashyap (PW-11), son of the deceased and also an alleged eyewitness to the incident, stated that when they reached the place of occurrence they saw the deceased lying dead and the accused persons present there who started throwing stones at them. In cross-examination, he also admitted that many facts stated by him in Court were not mentioned in his police statement recorded under Section 161 Cr.P.C. (Ex.P-28) and that he did not inform the villagers about the incident during the night.

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Chedilal (PW-2), who is a witness to the inquest proceedings, stated that when the inquest was conducted, he did not know who had killed the deceased. He further stated that PW-10 Gorelal, PW-12 Lakshman and PW-11 Prahlad were expressing suspicion against the accused persons because of previous enmity.

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Sanjay Kumar Kashyap (PW-6), owner of the pan shop, stated that PW-10 Gorelal had come to his shop to take pan and thereafter he closed the shop and went home. He did not witness the incident and stated that there was no electricity in the village at that time. Thus, the evidence of this witness does not support the statements of PW-10 Gorelal, PW-11 Prahlad Kashyap and PW-12 Lakshman Kashyap.

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Thus, from the perusal of the above evidence, it is quite vivid that there are material contradictions and omissions in the statements of the above alleged eye-witnesses and their evidence does not corroborate with each other nor with the contents of FIR (Ex.P-26) or their police statements recorded under Section 161 Cr.P.C. and that their conduct also appears to be unnatural. It is also noteworthy that, according to the prosecution case, the deceased was accompanied by Suresh and Konda at the relevant time. However, these witnesses have not been examined by the prosecution for the reasons best known to it. This apart, another circumstance which creates doubt about the prosecution case is the conduct of the alleged eye-witnesses. Although they claimed to have witnessed the assault, but they neither raised any alarm nor informed the nearby villagers during the night. Even on the next morning, when the inquest proceedings were conducted, the names of the assailants were not

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clearly disclosed and only suspicion was expressed against the accused persons.

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Moreover, the prosecution has also relied upon the alleged recovery of weapons at the instance of the accused persons pursuant to their memorandum statements. However, the seizure witnesses, namely PW-8 Siyarama Kashyap and PW-9 Shiv Kumar, did not support the prosecution case. Although they admitted their signatures on the memorandum and seizure documents, but they did not depose about the actual recovery of the weapons from the possession or at the instance of the accused persons. In such circumstances, the alleged recoveries lose their evidentiary value. Further, the query report (Ex.P-14) does not indicate the presence of human blood on the seized weapons. Furthermore, the incident occurred on 28.11.2011 at about 8:00 p.m., whereas the FIR (Ex.P-26) was lodged on 29.11.2011 at about 8:45 a.m., and no satisfactory explanation for this delay has been offered by the prosecution. In absence of any cogent and reliable evidence and in view of the negative query report, it cannot be held that the accused persons are the authors of the crime in question.

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The Hon'ble Apex Court in its judgment dated 12.02.2024 passed in Criminal Appeal No.1162 of 2011 in case of Mallappa and Ors. Versus State of Karnataka , has held in para 36 as under:-

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"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

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"(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral and documentary;

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(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

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(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

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(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;'

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(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

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Considering the facts and circumstances of the case and the law laid

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down by the Hon’ble Supreme Court in Jafarudheen & Mallappa (supra), the view taken by the learned trial Court appears to be a plausible and possible view. In the absence of any patent illegality or perversity, this Court is not inclined to interfere with the impugned judgment.

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Accordingly, both the acquittal appeals filed by the complainant as well as the State against the acquittal of accused persons/respondent Nos.1 to 7 are hereby dismissed.

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

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Akhilesh

Gore Lal Kashyap v. Sindhu @ Tarachand and Ors.

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Gore Lal Kashyap v. Sindhu @ Tarachand and Ors.

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