State of Chhattisgarh Vs Jonson Khalxo

This appeal has been filed against the impugned judgment of acquittal dated 07.11.2024 passed by the learned First Additional Session Judge, Kunkuri, District-Jashpur CG, whereby the respondents / accused persons have been acquitted from the offence of Section 306 of the IPC.

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Brief facts of the case are that on 24.11.2021, at about 12 noon, deceased- Amisha Kujur committed suicide in her house by hanging with an iron angle inside the room. Merg intimation Ex.P1 was recorded by the Police and inquest Ex.P3 was prepared in presence of the witnesses. Dead-body was sent for its postmortem to the Community Health Centre, Kunkuri, where Dr Sangeeta Tirkey, PW9 conducted postmortem of dead-

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body of the deceased, and gave report Ex.P18. At the time of postmortem, no any external injury found over the body of the deceased. It is opined that cause of death is asphyxia leads to cardio respiratory arrest due to hanging. Nature of death is suicidal, advised for pelvic investigation, and verification. It is also reported that no definite opinion can be given about the rape, and two vaginal smear slides were prepared sealed, and handed over to the Police for FSL examination. Spot map Ex.P4, and P5 were prepared by the Police. From the spot, one plastic rope, one mobile phone, and one yellow envelope were seized vide seizure memo Ex.P7. FIR Ex.P19 was registered against the accused persons/respondents for the offence under Section 306, and 34 of the IPC, statement of the witnesses were recorded against the accused persons, who were arrested, and they were medically examined by the Doctor. The vaginal swab and underwear of the deceased were sent for its FSL examination to the Regional FSL, Ambikapur, District-Surguja from where, its report Ex.P32 was received, wherein no sperm or semen was found.

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After completion of usual investigation, charge-sheet was filed before the learned JMFC Kunkuri, Jashpur for the offence under Section 306, and 34 of the IPC.

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Learned trial court framed charge for the offence under Section 306 of the IPC against the accused persons, who denied the charge, and claimed trial.

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The prosecution had examined as many as 13 witnesses, statement of the accused persons under Section 313 CrPC has also been recorded, in which they denied the circumstances appearing against them, pleaded innocence, and submitted that they have been falsely implicated in the offence.

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After appreciation of oral and documentary evidence led by the prosecution, the learned trial Court has acquitted the respondents/accused persons from the alleged offence. Hence, this Acquittal Appeal filed by the State.

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Learned counsel for the appellant/State would submit that prosecution has proved its case beyond any reasonable doubt, but for minor omissions, or contradictions, evidence of prosecution witnesses are fully reliable. The evidence of PW2, PW4, and PW7 has not been properly considered by the trial Court, and solely on the basis of minor discrepancy in the electronic evidence of video footage obtained from the mobile phone, learned trial court has acquitted the respondents-accused persons, holding that the prosecution could not establish that said video footage, extracted from the mobile phone, has not been proved that it was kept in safe custody of Malkhana, or any other safe place. He would further submit that on the same date, and time, presence of the accused persons was proved by the witnesses, and the video footage clearly speaks about the the involvement of the appellants in the offence in question. Yet, the learned trial Court has acquitted the present

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appellants. There are sufficient ingredients of Section 107 of the IPC, instigation and abetment to commit suicide. Therefore, the acquittal appeal may be admitted for hearing.

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Heard learned counsel for the appellant and perused the record of the trial court.

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From perusal of the impugned judgment, it transpires that the learned trial Court has held that the prosecution could not establish the safe custody of the pen-drive in which the video footage extracted from the mobile phone of the accused Jonson Khalxo could not be proved that it was kept in safe custody. Further, there is no mention in the document Ex.P33 with respect to the IMA number of any mobile phone. The evidence of the witnesses is inconsistent with respect to its purity, and authenticity. The said footage is sought to be proved by PW13- Ashok Choudhary, who is a photocopy shop owner. Though he stated in his examination-in-chief that on the instance of the Police persons, he extracted relevant data from the mobile phone, which was brought by the Police before him, and he extracted its data in a pen-drive on 24.11.2021 at about 9.30 am, and after sealing the said pen-drive, he handed over the same to the Police.

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In cross-examination, he admitted that he has not filed any document that he was owner of the shop, or he executed any certificate of its authentication. He also did not know about any incident, and he further admitted that from where the Police persons got the said mobile

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phone, he did not know. He also admitted that in the certificate Ex.P33, he had not mentioned any IMA number of the mobile phone. When the extraction of the relevant data from the mobile phone could not be substantially proved, that it was extracted from the mobile phone without any tampering, or it was kept in safe custody, till its examination from the competent forensic lab, it cannot be used as clinching evidence against the accused to prove the offence. Though there are some sort of evidence on the date of incident, accused persons had gone to the house of the deceased, but the case of the prosecution rests upon the said video footage which was circulated in the mobile phone of brother, and sister of the deceased, but the genuineness, and authenticity of the said video footage could not be proved by the prosecution.

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The learned trial Court has also elaborately considered the evidence available on record, and has acquitted the accused persons, holding that the prosecution could not establish its case, and acquitted them by giving them benefit of doubt.

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Applying the law governing the scope of interference in an appeal of acquittal, Hon’ble Supreme Court, in case of State of Rajasthan Vs. Kistoora Ram, 2022 SCC On Line SC 984, has held as under:

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“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order

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of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

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Yet in other matter of Jafarudheen and Others Vs. State of Kerala, 2022 (8) SCC 440, Hon’ble Supreme Court has considered the scope of interference in appeal against acquittal in paragraph-25 as under:

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“25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. 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 ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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After considering the material available on record, as well as the elaborate judgment passed by the trial Court and being very much conscious about the legal position as held by Hon’ble Supreme Court in cases of Kistoora Ram (supra), and Jafarudheen (supra), in an appeal against the acquittal, if two views are possible on the basis of evidence led by the prosecution, and the trial Court taking one view, revert the accused, the version of the finding of acquittal by the appellate Court taking the other possible view for consideration, is not permissible in the

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law. This Court, therefore, of the considered opinion that the judgment impugned, acquitting the accused respondents, is just and proper and does not call for any interference.

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Accordingly, appeal filed by the State, against the accused respondents is hereby dismissed.

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Record of the trial court along with copy of this judgment be sent back to the trial Court concerned.

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Sd/-

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(Ravindra Kumar Agrawal) JUDGE

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padma

State of Chhattisgarh v. Jonson Khalxo

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State of Chhattisgarh v. Jonson Khalxo

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