State of Chhattisgarh Vs Jitendra @ Jeetu Kesari

learned 2^nd Additional Session Judge, Ramanujganj to the Court of Upper Session Judge, Ramanujganj, District Sarguja, Chhattisgarh in ST No.286/2012, whereby the respondents have been acquitted of the charges under Sections 341, 186, 353, 352 & 307/34 of IPC.

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Brief facts of the case are that on 06.05.2012, the Station House Officer ASI A.K. Das of Police Chowki Balang received information from the Informant that the respondent No.2 Haribasant Kesari of Village Balangi is coming from Baldhan to Ambikapur in Gupta Bus alangwith Cartoon of Foreign Liquor and on that Information, the Police alongwith the Staff reached at the spot at Bus Stand Balangi wherein it was found that the accused Haribasant Kesari was carrying Cartoon of Foreign Liquor (48 Quarters) from Bus to his Kirana Stores, thereafter, he was caught raid handed before the witnesses and the articles were seized and arrested the accused Respondent No.2 Haribasant Keshari and after arresting the accused, the Police were coming to Police Chowki Balangi, then at that time, the son of the accused respondent No.1 Jintedra Kesari in his white Maruti Van came there and rushed over the motor cycle with an intention to kill the staff, but the police staff had turned the motorcycle beside the road and if the same could not be done, then the accused Jitendra Kesari could have rushed the Maruti Van over the motorcycle. The accused Jitendra assaulted the victim/complainant and other police personnel with an intention to

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kill them. The accused Haribasant Kesari with an intention to kill pressed the neck of the victim and showed the 9 MM Pistol and fired on the victim, but due to vacant pistol cock, he was not able to shot, then he triggered the said pistol over the ceiling of house of Laxman Kesari, thereafter a case was registered against the accused persons. After investigation, charge sheet was submitted before the Magistrate concerned.

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Learned counsel for the appellant/State submits that the impugned judgment of acquittal is bad in law and facts, hence the same is liable to be set aside. The Learned Trial Court has failed to appreciate the evidence recorded in its true and correct prospective and the prosecution had proved its case beyond all reasonable doubts against the respondents, but despite the same the accused respondents have been acquitted. She further submits that the respondents accused tried to kill the police personnel including the complainant by dashing the car over them thereby they committed a serious offence and the injuries sustained by the injured were grievous in nature but the learned Trial Court has not considered the said aspects of the matter and has wrongly acquitted the respondents of the aforesaid charges. Therefore, looking to the facts and circumstances of the case, the judgment and finding of the learned Court below is perverse and is liable to be set aside.

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Learned counsel for the respondents supports the impugned judgment of acquittal and submits that the learned Trial Court has minutely appreciated the oral and documentary evidence available on record and has rightly acquitted the respondents of the aforesaid charges. Thus, the appeal is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 341, 186, 353, 332 and 307 read with Section 34 of IPC. After appreciation of oral and documentary evidence available on record, the learned Trial Court acquitted the respondents of the aforesaid charges.

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As per the prosecution, both the respondents were smuggling english liquor when complainant who is Assistant Sub Inspector in Outpost Balangi, District Balrampur tried to stop them then they with an intention to kill them tried to rush car over them and they also assaulted police personnel on duty and police personnel sustained injuries.

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PW-1 A. K. Das stated that he was posted as In-charge at Outpost Balangi and he received information that the accused Haribasant was transporting english liquor illegally, thereafter they made a trap and caught the accused respondent No.2 with liquor and they were taking him to police chowki but on the way

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the the son of respondent No.2 i.e. the respondent No.1 came there with a car and tried to rush his car over his motorcycle and thereafter both the accused respondent No.1 assaulted him by club, whereas the respondent No.2 snatched his pistol and tried to shot over him but he could not do so as the cock of the pistol was locked. He sustained injuries on his right hand wrist, thumb, behind the neck and in the cheek. He lodged FIR (Ex-P/1), whereas spot map is (Ex-P/2) and the seizure memo is Ex-P/3. In the cross-examination, he admitted this suggestion of defence that against the accused Haribasant he did proceedings under the Excise Act. He also admitted that he filed charge sheet against accused Haribasant under Excise Act. He admitted this suggestion that when he was doing proceeding under Excise Act, then nobody tried to intervene. He denied this suggestion of defence that they committed maarpeet with the accused. He also denied this suggestion that the accused made a complaint against him before his superior officers. He also denied this suggestion that the accused objects to illegal gratification by them as asuch a false cse was registered against the accused.

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PW-2 Pratima and PW-3 Dileep Kesari stated that they do not know anything about the incident. They admitted their signatures on spot map (Ex-P/4), seizure memo (Ex-P/3), (Ex-P/5) & (ExP/7) and arrest memo (Ex-P/8) & (Ex-P/9) but they denied all proceedings before them. The prosecution declared them hostile

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and cross-examined them but they denied all suggestions of the prosecution.

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PW-4 Laxman and PW-5 Vijay, the independent witnesses, have not supported the prosecution case. The prosecution declared them hostile and cross-examined them but they denied all suggestions of the prosecution.

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PW-6 Nirmal Ekka constable, PW-7 Sipak Ranjan Sharma head constable, Gautam Markam PW-8 constable, Ashok Singh PW-9 constable, Jagnath Keram PW-10 constable, Ruben Lakda PW11 constable, Parmeshwar Dubey PW-12 constable are all the members of the police party and they supported the statement of the complainant that they went with the complainant to stop the accused but accused tried to escape and while running they committed maarpeet with them.

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Dr. Govind Singh (PW-14) examined the complainant A. K. Das and found 7 injuries and as per doctor, all injuries were simple in nature. He advised for x-ray and gave his report vide Ex-P/15. On same day he examined constable Gautam Markam and found one injury and gave his report (Ex-P/16). He also examined constable Sipak Sharma and found one contusion in his neck and he gave his report (Ex-P/17). He examined constable Nirmal and found two injuries and gave his report (Ex-P/18). He also examined x-ray report of A. K. Das and as per x-report no bone injury was found and gave his report (Ex-P/19). He also

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examined club and opined that injuries may be caused to injured by it and gave his report (Ex-P/20).

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The defence of the accused respondents is that the complainant who is police inspector demanded some illegal gratification and when they denied then they committed maarpeet with them and a false case was made against them. The defence examined Dr. Ghanshyam Singh (DW-1) and Dr. R. K. Tripathi(DW-2).

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Dr. Ghanshyam Singh (DW-1) stated that on 26.05.2012 he examined the accused Jitendra Kesari and found 9 injuries. All injuries were between 2-4 weeks and also advised for x-ray of right ankle and gave his report (Ex-D/1). He also examined Haribasant and found 3 injuries and gave his report (Ex-D/2).

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Dr. R. K. Tripathi (DW-2) examined the accused Haribasant on 07.05.2012 and found one bruise on his left hip and gave his report and also examined Jitendra Kesari and found bruise.

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The learned Trial Court minutely appreciated the oral and documentary evidence of both the sides and found that the prosecution did not explain that how both the accused sustained injuries and on 1^st day of remand both the accused persons complained about commission of maarpeet with them and Magistrate sent them for medical examination and Dr. Ghanshyam Singh (DW-1) and R. K. Tripathi (DW-2) found injuries on the body of both the accused.

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The complainant (PW-1) denied any injury of accused persons and the learned Trial Court found that the statements of complainant and other police personnel PW-6 Nirmal Ekka constable, PW-7 Sipak Ranjan Sharma head constable, Gautam Markam PW-8 constable, Ashok Singh PW-9 constable, Jagnath Keram PW-10 constable, Ruben Lakda PW-11 constable, Parmeshwar Dubey PW-12 constable are contradictory to each other and are not reliable and defence of respondents/accused are probable defence and somewhat has been proved by both the defence witnesses DW-1 and DW-2 and as such the learned Trial Court acquitted both the respondents. The finding recorded by the learned Trial Court is based on the proper appreciation of oral and documentary evidence available on record.

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The Hon’ble Apex Court vide its judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in 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 vidence, 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

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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 must 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

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laid down by the Hon'ble Supreme Court in Mallappa (supra) and the view which has been taken by the learned trial Court appears to be plausible and possible view and in the absence of any patent illegality or perversity and looking to the limited scope of interference in an acquittal appeal, this Court is not inclined to interfere with the impugned judgment.

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Accordingly, the acquittal appeal is liable to be and is hereby dismissed.

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Sd/- Sd/Rajani Dubey Radhakishan Agrawal Judge Judge

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Nirala

State of Chhattisgarh v. Jitendra @ Jeetu Kesari

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State of Chhattisgarh v. Jitendra @ Jeetu Kesari

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