1 2025:CGHC:48925-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 169 of 2010 State of Chhattisgarh, District Magistrate Durg, District Durg (C.G.) ... Appellant versus 1. Bada Roshan @ Roshan Parihar, aged about 30 years, S/o Late Panna Lal Parihar, Caste-Sweeper, R/o Siddharth Nagar, Harijan Para, Durg, District Durg (C.G.) 2. Lucky Kumar, aged about 20 years, S/o Sukhru Ram Mahakoushal, Caste-Sweeper, R/o Siddharth Nagar, Harijan Para, Durg, District Durg (C.G.) 3. Chana Roshan, aged about 21 years, S/o Suresh Parihar, R/o Siddharth Nagar, Harijan Para, Durg, District Durg (C.G.) ...Respondents For Appellant : Mr. Shailendra Sharma, Panel Lawyer. For Respondents : Ms. Anuja Sharma, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 24/09/2025 1. This acquittal appeal under Section 378(1) of the Code of Criminal Procedure (for short, ‘Cr.P.C.) has been preferred by the appellant/State questioning the legality and propriety of the BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR 2 judgment of acquittal dated 26.03.2008 passed by the learned Sessions Judge, Durg (C.G.) in Sessions Trial No. 102 of 2007, whereby the learned trial Court acquitted the respondents/accused of the charges under Sections 302/34 of the Indian Penal Code (IPC) relating to homicidal death of Virendra Samundre, alleged to have been committed with common intention. 2. The prosecution case, in brief, is that on 04.03.2007, during the celebration of Holi festival, deceased Virendra Samundre had been playing Holi throughout the day. In the evening, at about 6:30–6:45 P.M., his younger brother Ajju @ Siddharth (PW-1) and his maternal grandmother witnessed accused Chana Roshan, Bada Roshan, and Lucky Kumar quarreling with, abusing, and assaulting Virendra while forcibly taking him towards Bandha Talab. Later, around 7:30–7:45 P.M., on receiving information from local residents and witness Mohammad Sabir (PW-7), the complainant went to Bandha Talab and found Virendra’s body lying there. His head and face had been severely crushed, blood had profusely oozed out, brain matter was exposed, and a large blood-stained stone was found nearby. On the basis of the complainant’s report, Merg No. 20/2007 (Ex.P/2) was registered at Police Station Durg for enquiry. 3. During the merg enquiry, witnesses were served notice (Ex.P/3), and the inquest report (Ex.P/4) was prepared. The dead body was sent for postmortem through a constable to District Hospital, Durg, 3 on application (Ex.P/19), where Dr. V.S. Baghel (PW-11) conducted the postmortem and submitted his report (Ex.P/20). Further, an application (Ex.P/22) was made to the Tehsildar, Durg, for preparing a site map, and accordingly, Khem Das Sahu, Patwari (PW-9), prepared the spot map (Ex. P/18) in the presence of witnesses. Upon enquiry, it was found that the accused had committed an offence punishable under Section 302/34 of the IPC, and consequently, an FIR (Ex.P/1) was registered at Police Station Durg. 4. In the course of investigation, Inspector Aditya Sharma (PW-12) recorded the memorandum statement of accused Roshan Parihar @ Bada Roshan (Ex.P/5), pursuant to which a blue full-sleeve shirt was seized from his house under seizure memo (Ex.P/6). Similarly, on the memorandum statement of accused Lucky (Ex.P/7), a used black full-sleeve shirt was seized from his house (Ex.P/8). On the memorandum statement of accused Chana Roshan (Ex.P/9), an old vest was seized from his house (Ex.P/10). 5. Inspector Aditya Sharma (PW-12) further seized from the scene of occurrence a large blood-stained stone, plain and blood-stained soil, and a liquor glass under seizure memo (Ex.P/11). From the hospital, a sealed packet containing the clothes of the deceased was seized under seizure memo (Ex.P/12). All seized articles were sent to the Forensic Science Laboratory, Raipur, through the Superintendent of Police, Durg, vide memo (Ex.P/23). Receipt 4 (Ex.P/24) and FSL report (Ex.P/21) were obtained. The accused were arrested through arrest memos (Exs.P/25 to P/27). After recording witnesses’ statements and completing investigation, the charge-sheet was filed before the Magistrate, who committed the case to the Court of Sessions, Durg for trial in accordance with law. 6. The postmortem conducted by Dr. V.S. Baghel (PW-11) revealed that the head, neck, face, upper limbs, and left hand of the deceased bore blood and mud stains. A lacerated wound measuring 11 x 6 cm exposed the cranial cavity; the skull bone was fractured into several pieces; part of the brain matter was destroyed. The eyes were closed, mouth half-open, and both mandible and maxillary bones were fractured. Blood was present in both ears. The doctor also noted an abraded wound (5 x 4 cm) on the left lower neck and another abraded wound (11 x 5.5 cm) on the left upper neck extending up to the hyoid bone. A 2 cm lacerated wound extended through the left ear lobule. Several small abrasions were present on the left side of the face. 7. On internal examination, the meninges of the brain were lacerated; the left cerebral hemisphere, cerebellum, pons, and medulla were also lacerated with blood clots around them. The diaphragm, ribs, peritoneum, lungs, pericardium, major vessels, liver, spleen, kidneys, and internal and external genitalia were intact but pale. Both chambers of the heart were empty. Blood was present in the larynx, trachea, and oral cavity. The stomach 5 contained partially digested food with the smell of alcohol. The small intestine contained partially digested food, the large intestine contained fecal matter and gases, and the urinary bladder was empty. The doctor opined that the injuries were antemortem in nature, the cause of death was shock due to severe head injuries and excessive bleeding, and the nature of death was homicidal. His report is Ex.P/20. 8. In order to prove its case, the prosecution examined 12 witnesses. The respondents/accused were examined under Section 313 of the Cr.P.C., in which they denied the incriminating circumstances and claimed false implication. 9. After hearing both parties and considering the evidence available on record, learned Sessions Judge, Durg acquitted the respondents of all the charges. Hence, this appeal against acquittal. 10. Learned State Counsel submits that learned trial Court ought to have accepted the evidence of Ajju Samundre @ Siddharth (PW-1), younger brother of the deceased, who categorically stated that shortly before the death of the deceased, a quarrel had taken place between the deceased and the respondents; that the respondents had abused and assaulted him and thereafter taken him towards Bandha Talab, and soon thereafter he was found dead. His testimony stood corroborated by the evidence of his maternal grandmother, Smt. Sundari Bai (PW-3), as well as that of 6 Mohammad Sabir (PW-7). Thus, according to the State, the prosecution case was fully established beyond reasonable doubt, but learned trial Court disbelieved the said evidence and acquitted the respondents/accused which is bad in law and liable to be set aside. He further submits that learned trial Court overlooked the fact that, pursuant to the memorandum statements of the respondents, blood-stained clothes and shoes were seized, and as per the FSL report (Ex.P/21), human blood was found on the seized articles. This circumstance, according to the prosecution, clearly established the involvement of the respondents in commission of the offence. However, while delivering the impugned judgment, the learned trial Court ignored this vital aspect and rendered its decision in a mechanical manner. Learned trial Court gave undue weight to minor omissions and contradictions in the prosecution evidence. The conclusion arrived at by the learned trial Court is, therefore, bad in law, improper, and unjust, warranting interference by this Court. It is thus contended that the appeal deserves to be allowed and the impugned judgment of acquittal deserves to be set aside. 11. Per contra, learned counsel appearing for the respondents opposes the submissions advanced by learned State Counsel and submits that the trial Court, upon proper appreciation of the material available on record, has rightly acquitted the respondents of all charges, and such a finding warrants no interference by this Court. 7 12. We have heard learned counsel appearing for the parties, perused the impugned judgment of acquittal and record of the trial Court. 13. This is appeal against the judgment of acquittal filed by the State under Section 378(1) of the Cr.P.C. in exercising the appellate jurisdiction under Section 378(1) or under Section 378 of the Cr.P.C. The appellate Courts are required to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box and also required to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonably person would honestly and conscientiously entertain as to the guilt of the accused. 14. As held by the Supreme Court in C. Antony v. Raghavan Nair1, unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective and also as held by the Supreme Court in Ramanand Yadav v. Prabhunath Jha2, the appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing 1 AIR 2003 SC 182 2 AIR 2004 SC 1053 8 materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 15. The scope of interference in appeals against acquittal is well settled. In Tota Singh and another v. State of Punjab3, the Supreme Court has held in para 6 as under:- “……….the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere within an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.” 3 AIR 1987 SC 1083 9 16. Applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Kistoora Ram4 has held as follows:- "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 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." 17. In the matter of Jafarudheen and others v. State of Kerala5, the Supreme Court held as under: "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 enures in favour of the accused has to be disturbed 4 2022 SCC OnLine SC 984 5 (2022) 8 SCC 440 10 only by thorough scrutiny on the accepted legal parameters." 18. While exercising the appellate jurisdiction against judgment of acquittal, the High Courts or the appellate Courts are fully empowered to appreciate and reappreciate the evidence adduced on behalf of the parties while reversing the judgment of the trial Court. The appellate Court is required to discuss the grounds given by the trial Court to acquit the accused and then to dispel those reasons. 19. In the light of aforesaid dictum and proposition of law, we have examined the evidence adduced on behalf of the prosecution. 20. In the present case, homicidal death of Virendra Samundre, as a result of the injuries found on his body, has not been substantially disputed on behalf of the respondents. On the contrary, the same stands duly established by the evidence of Dr. V.S. Baghel (PW- 11) and the postmortem report (Ex.P/20). Thus, the death of the deceased, Virendra Samundre, was clearly homicidal in nature. 21. In the present case, there is no eyewitness account of the incident. The learned trial Court, in paragraph 18 of the impugned judgment, has observed as under: “As regards consideration of the facts mentioned in the FSL report and the Serologist’s report in this case, it is clear from the FSL report (Ex. P/21) that, except for Ex. C (soil), blood was found on all the seized articles sent for examination, namely Exhibits 11 A, B, B-1, D-2, D-3, E, F, and G. According to the Serologist’s report, human blood was found on Item Nos. 36, 37, 38, 40, and 41, i.e., stone (Ex. A), soil (Ex. B), vest (Ex. D-1), shoe (Ex. D-3), and full shirt (Ex. E). In respect of the other items, no definite opinion was given. On Item No. 41, i.e., the full shirt (Ex. E), blood of group “B” was found. However, in this case, neither the blood group of the deceased has been mentioned, nor was it determined during the course of investigation. In such circumstances, it cannot be conclusively said that the blood found on the seized clothes was that of the deceased. On an overall analysis of the evidence available in this case, it becomes clear that there is no reliable evidence to prove that the accused had assaulted the deceased or dragged him away. As regards the memorandum statements and seizures, these too have not been proved beyond doubt. Therefore, merely on the basis of the FSL report and the Serologist’s report, it cannot be established that the accused persons committed the murder of the deceased Virendra.” 22. In Padala Veera Reddy v. State of A.P. and Ors.6, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 6 AIR 1990 SC 79 12 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 23. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra7, which state as under :- “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; 7 (1984) 4 SCC 116 13 (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 24. In the present case, witness Ajju Samundre @ Siddharth (PW-1), brother of the deceased, stated in his statement before the trial Court that on 04.03.2007, his brother Virendra Samundre had died. The incident occurred on the day of the Holi festival. Around 6:30 P.M., accused / respondents Roshan Parihar, Chana Roshan, and Lucky were quarreling with, abusing, and assaulting Virendra while taking him towards Bandha Talab. In paragraph 3 of his statement, he further stated that his grandmother, Sundar Bai (PW-3), also saw the accused persons dragging his brother towards the Talab while assaulting him. Around 7:30–7:45 P.M., some residents of Satti Choura informed him that his brother was lying dead near Bandha Talab and that his head had been crushed. Ajju Samundre @ Siddharth (PW-1) stated that Mohammad Sabir (PW-7), a resident of Satti Choura, was also present among those who informed him about the incident. Ajju Samundre @ Siddharth (PW-1) immediately went to Bandha Talab, saw the dead body of Virendra, and lodged the report (Ex.P/1) at the police station; he also personally submitted the merg intimation (Ex.P/2). However, witness Sundar Bai (PW-3) 14 stated that she had gone towards Indira Market, Shanichari Bazar, around 7:00 P.M., and while sitting there, Virendra came and sat with her. When she was about to go buy medicine, Chana Roshan and Bada Roshan approached her grandson Virendra near the Shanichari Bazar fountain and asked him to go with them to Bandha Talab to drink liquor and roam around. Virendra refused, stating he would go home with his grandmother, but the accused / respondents forcibly dragged him by holding his hand. Lucky was standing a little further away. All three accused dragged Virendra away. Sundar Bai returned home around 7:30 P.M. Soon thereafter, boys from the neighborhood, Narendra and Birbal, along with a Pathan individual (whose name she did not know), came to inform Virendra’s father about the murder. Ajju Samundre @ Siddharth (PW-1) stated that he was informed of the incident by Mohammad Sabir and others. However, Mohammad Sabir (PW-7) deposed that he did not inform anyone after seeing the dead body; he saw it only around 9:30 P.M., after noticing a crowd near Satti Choura. He also denied providing his full statement to the police as recorded in Ex.P/16. Thus, PW-1’s assertion that he was informed by Mohammad Sabir appears unreliable. Similarly, Smt.Sundar Bai (PW-3) stated that the persons informing about the incident were Narendra, Birbal, and a Pathan person whose name she did not know. From the witness list, Mohammad Sabir appears to be that individual, but he did not support Sundar Bai’s statement. Therefore, the claim that Mohammad Sabir informed 15 anyone, though mentioned in the FIR (Ex.P/1), is uncorroborated and unreliable. 25. Smt.Sundar Bai (PW-3) also admitted that in her police statement (Ex.D/1), she mentioned that Chana Roshan and Bada Roshan were near the Shanichari Bazar fountain and then approached her grandson Virendra, who was sitting with her. She could not explain why the police did not record this statement. In paragraph 6 of her testimony, she admitted that she saw Bada Roshan and Chana Roshan, intoxicated, assaulting Virendra, but this fact was not recorded in Ex.D/1. She also stated that certain parts of her statement, i.e.,. “when she reached in front of the Ayurvedic Hospital,” were recorded without her telling the police. In contrast, Investigating Officer Aditya Sharma (PW-12) stated that he recorded her statement as per her narration. This suggests that Sundar Bai may have exaggerated the incident. She further admitted that when she and Virendra were sitting near the Nigam area, no family members were present. Under these circumstances, PW-1’s statement that the accused assaulted Virendra while dragging him towards Bandha Talab appears inconsistent and contradictory. 26. Another witness, Suklal (PW-6), stated that he knows Virendra and Siddharth’s father, Surendra Samundre, and that he is his sadu. He stated that on 04.03.2007, around 6:30–6:45 P.M., he, along with Shambhu, Ganesh, and Manny, was standing near the Shanichari Bazar fountain when Bada Roshan and Chana Roshan 16 scuffled with Virendra. He stated that he separated them from Virendra and scolded them, after which they went for tea. Around 8:15 P.M., Narendra and Birbal informed him that Virendra had been murdered near Bandha Talab, and he along with other locals went to the scene. In this case, no statement of witness Narendra was recorded. Moreover, the statement of Suklal is not corroborated by other witnesses present at the time, namely Shambhu (PW-4), Dharmendra Kumar @ Manny (PW-5), and Ganesh Ragde (PW-8), who stated that they had no knowledge of the incident. They also did not provide their police statements (Exs.P/13, P/14, P/17). Thus, Suklal’s testimony is unsupported. He also admitted that no family members were present when the accused allegedly assaulted Virendra. Therefore, there is also a contradiction between Suklal and Sundar Bai, making her testimony unreliable as well. 27. Regarding the memorandum statements and seizures, Investigating Officer Aditya Sharma (PW-12) stated that on 05.03.2007 at 2:00 P.M., accused Roshan Parihar @ Bada Roshan was taken into custody and interrogated in the presence of witnesses Jaiprakash (PW-2) and Ajju @ Siddharth (PW-1). His memorandum statement was recorded as Ex.P/5, in which he stated that the lined shirt he had been wearing, which had blood stains on the front, was hidden in a suitcase at his home and that he would produce it. Similarly, accused Lucky was interrogated, and his black shirt, kept in his cupboard, was recorded in Ex.P/7 17 and seized as Exs.P/6 and P/8. On 06.03.2007 at 11:00 A.M., accused Chana Roshan’s memorandum statement (Ex.P/9) recorded that the blood-stained inner garment he wore was hidden at home and would be produced, and it was seized as Ex.P/10. 28. Upon examining the statements of witnesses Ajju Samundre (PW-1) and Jaiprakash (PW-2), Ajju Samundre (PW-1) stated that the memorandum statements were recorded in his presence. However, Jaiprakash (PW-2) clearly deposed in examination-in- chief that no police questioning of any accused occurred in his presence. When declared hostile, Jaiprakash (PW-2) stated that the statements were taken but later clarified that no memorandum was given before him. Thus, discrepancies exist between the two witnesses regarding the recording of memorandum statements. Further, Ajju Samundre (PW-1) stated that he was not present during the seizure at the accused’s homes and that the items were shown to him at the police station. Jaiprakash (PW-2), however, stated that the seizure occurred in his presence. During cross-examination, Jaiprakash (PW-2) admitted that he was sitting outside in the police vehicle when clothes were seized from Bada Roshan and that all signatures he gave were at the police station. He also confirmed that Chana Roshan did not bring the inner garment in his presence; the seizure was conducted at the police station, where he signed the memo. Thus, the statements regarding seizures and memorandum statements are 18 contradictory. While both witnesses agree that the seizures were conducted at the police station, regarding the memorandum statements, Jaiprakash (PW-2) stated that no statements were given in his presence. Consequently, the testimonies of Ajju Samundre (PW-1) and Jaiprakash (PW-2) do not support the claims of Aditya Sharma (PW-12) and reliance cannot be placed solely on the investigating officer’s testimony regarding the seizures and memorandum statements. 29. Based on the above analysis and conclusions, the trial Court has acquitted accused/respondents of the offence punishable under Section 302/34 of the IPC. 30. After appreciating the evidence available on record and considering the circumstantial evidence shown by the prosecution, no option except to acquit the respondents was left to the trial Court. 31. Upon careful and close scrutiny of the entire evidence available on record, this Court finds no compelling reason to take a view different from that taken by learned trial Court. The trial Court, after due appreciation of the evidence, acquitted the accused/respondents by its judgment dated 26.03.2008. The incident in question pertains to the year 2007, and the petition seeking leave to appeal against acquittal was filed in the year 2008. Subsequently, leave to appeal was granted on 07.04.2010, 19 and the matter was registered as an acquittal appeal in the year 2010. 32. Given the fact that more than 18 years have elapsed since the date of the incident, and taking into consideration the protracted nature of the proceedings, as well as the findings recorded by the trial Court which do not appear to suffer from perversity or manifest illegality, this Court finds no merit in interfering with the acquittal. Accordingly, the appeal, being devoid of substance, deserves to be dismissed and is hereby dismissed. 33. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu