1 2025:CGHC:48240-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 448 of 2010 Shamsher Khan, aged about 18 years S/o Sikander Khan R/o Lapur Road, Baghbahara, Ward No.7, P.O. & P.S. Bagbahara, District - Mahasamund (C.G.) ... Appellant versus 1. Subhash Thakur S/o Sarju Singh, aged about 37 years, R/o Harnadadar, P.S. Baghbahra, District Mahasamund (C.G.) 2. Pravin Soni S/o Manoj Soni, aged about 23 years, R/o Thana Para, Baghbahara, District - Mahasamund (C.G.) 3. Niraj Soni, S/o Lekhram Soni, aged about 19 years, R/o Thana Para, Baghbahara, District - Mahasamund (C.G.) 4. Adikant, S/o Gopal Dewangan, aged about 34 years, R/o Thana Para, Baghbahara, District - Mahasamund (C.G.) 5. Hetram @ Hetu Chandrakar, S/o Bhojram, aged about 43 years, R/o Thana Para, Baghbahara, District - Mahasamund (C.G.) 6. Chaman Sahu, S/o Chhabilal Sahu, aged about 35 years, R/o Ward No.4, P.S. Bagbahara, District - Mahasamund (C.G.) 7. Dilip,S/o Ramo, aged about 26 years, R/o Fulwaripara, Bagbahara, District - Mahasamund (C.G.) 8. State of Chhattisgarh, Through – Police Station, Bagbahara, District - Mahasamund (C.G.) ... Respondents _________________________________________________________ For Appellant : Mr. Adil Minhaj, Advocate For Respondent Nos. 1 to 5 & 7 : Ms. Monisha Chatri, Advocate For Respondent No. 6 : Mr. Shivendu Pandya, Advocate For Respondent No.8/State : Mr. Shailendra Sharma, PL Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 Judgment on Board Per Ramesh Sinha , Chief Justice 19 .0 9 .202 5 1. This Acquittal Appeal under Section 378 of the Criminal Procedure Code has been filed on behalf of the appellant (victim), challenging the legality, validity and propriety of judgment dated 03.07.2010 passed by the learned First Additional Sessions Judge, Mahasamund (Chhattisgarh) in Sessions Trial No.16/2010, whereby the learned trial Court has acquitted the accused/respondent Nos. 1 to 7 of the charge of Sections 307 read with Section 34 of the IPC for attempt to murder of appellant Shamsher Khan in sharing common intention by giving benefit of doubt. 2. As per case of the prosecution, the incident occurred on 13.12.2009 at about 10:00 p.m., near Station Chowk, Bagbahara. The appellant Shamsher Khan was allegedly abused by accused Praveen Soni, who began using obscene language. At that time, the other accused—Subhash Thakur, Dilip Kumar, Chamanlal Sahu, Hetram @ Hetu Chandrakar, Adikant, and Neeraj Soni arrived at the spot and jointly assaulted the appellant (victim). It is alleged that accused Neeraj Soni struck the appellant (victim) on the head with a beer bottle and thereafter all the accused persons beat him with fists and hands. During the assault, accused Neeraj Soni is stated to have lifted the appellant (victim) and thrown him head-first onto the ground. On the same day, the appellant’s 3 brother, Shamshad Khan, lodged a written report of the incident at Police Station Bagbahara, upon which a formal crime was registered. The injured Shamsher Khan was medically examined and referred to Dr. B. R. Ambedkar Hospital for treatment, where it was found that he had sustained a fracture of the frontal bone of the skull. During investigation, the Investigating Officer prepared a site-inspection map and also had a site plan prepared by the Halka Patwari. A beer bottle was seized from accused Neeraj Soni, and the statements of witnesses Shamsher Khan, Firoz Khan, Shamshad Khan, and Mahendra Yadav were recorded. 3. Upon completion of the investigation, a charge-sheet was filed before the Court of Judicial Magistrate First Class, Mahasamund, for offences punishable under Sections 147, 307, and 324 read with Section 34 of the Indian Penal Code. The case was thereafter committed to the Court of Session, wherefrom the case was received on transfer to the Court of Additional Sessions, Mahasamund for trial. 4. When the accused were charged under Section 307 read with 34 of the Indian Penal Code, they denied the charge. 5. In order to prove the case of the prosecution, the prosecution has examined as many as 11 witnesses and exhibited 20 documents. Accused were examined under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and claimed innocence and false implication in crime in question. 4 6. After providing opportunity of hearing to the parties, the learned trial Court has acquitted the respondents from all the charges. Hence, this acquittal appeal. 7. Mr. Adil Minhaj, learned counsel for the appellant (victim) vehemently argued that the learned trial Court has erred in law by giving benefit of doubt to the accused as the learned trial Court itself has recorded the finding (vide para-10 of the judgment) that the appellant Shamsher Khan had received fracture on his head, which is grievous in nature. He further argued that the learned trial Court had acquitted the accused persons merely on the basis of minor discrepancies between the statements of prosecution witnesses. The trial Court ought to have considered that such discrepancies were not so material that the same would become fatal to the prosecution case. The learned trial Court ought to have seen that mere 12 days delay in recording of 161 statements would not affect the prosecution case. He submitted that the learned trial Court ought to have seen that the statement given by the injured witness i.e the appellant inspire full confidence and no where in his cross examination, he has given any contradictory statement to his examination in chief. The learned trial Court has given undue weightage to the fact that the appellant is suppressing the factum of his being drunk. The trial Court ought to have seen that there were eyewitnesses available to the incident as well as a prompt report was lodged and there was no previous animosity between the appellant and the accused persons, 5 therefore there was no occasion for the appellant to unnecessarily implicate the accused persons. He also submitted that merely non mentioning of fact that which part of the body of the appellant received injuries in the FIR and 161 statements could not result acquittal of the accused persons. The learned trial Court ought to have asked the P.W.-3 Dr. Vijay Pratap Singh as to on what basis, he is making statement that the appellant had come twice for treatment because no where in the MLC report or any other medical document it has been mentioned that the appellant was taken to hospital twice. The learned trial Court also ought to have asked the P.W.-3 as to where has he written in the report that the injuries sustained by the appellant were simple in nature. He contended that P.W.-3 Dr. Vijay Pratap Singh has given a false statement that the appellant was got to the hospital twice as the documents (entry register of the hospital) clearly shows that the appellant was only taken once to the hospital, as such, therefore, the impugned judgment is liable to be set aside. 8. On the other hand, Ms. Monisha Chatri as well as Mr. Shivendu Pandya, learned counsel appearing for respondents Nos.1 to 5 & 7 as well as respondent No.6 oppose the submissions made by learned counsel for the appellant and submit that learned trial Court after considering the material available on record has rightly acquitted the respondents from all the charges, which warrants no interference by this Court. 9. We have heard learned counsel appearing for the parties, perused 6 the impugned judgment of acquittal and record of the trial Court. 10. This is appeal against the judgment of acquittal filed by the appellant (victim) under Section 378 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. 11. 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 materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 1 AIR 2003 SC 182 2 AIR 2004 SC 1053 7 12. 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.” 13. 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:- 3 AIR 1987 SC 1083 4 2022 SCC OnLine SC 984 8 "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." 14. 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 only by thorough scrutiny on the accepted legal parameters." 15. 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 5 (2022) 8 SCC 440 9 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. 16. In the light of aforesaid dictum and proposition of law, we have examined the evidence adduced on behalf of the prosecution. 17. To prove the charges levelled against the accused by the prosecution, Pankaj Soni (PW-1), Mahendra Yadav (PW-2), Dr. Vijay Pratap Singh (PW-3), Vijay Kumar Sahu (PW-4), Firoz Khan (PW-5), Naresh Chandrakar (PW-6), Shamshad Khan (PW-7), Appellant - Mohd. Shamsher (PW-8), Inspector R.L. Chauhan (PW-9), Head Constable Somchand Dahriya (PW-10), Dr. Rajiv Sahu (PW-11) have been examined before the trial Court. 18. Shamshad Khan (PW-7) has deposed that he had filed a written report of Ex.P-6 at Police Station Bagbahara on the night of 13.12.2009. The statement of Inspector R.L. Chauhan (PW-9) confirms that on 13.12.2009, on the submission of a written application by Shamshad Khan, he had registered the First Information Report of Ex.P.7. Thus, it is proved from the statements of Shamshad Khan (PW-7) and Inspector R.L. Chauhan (PW-9) that on 13.12.2009, Shamshad Khan had filed a written complaint of Ex.P-6 at Police Station Bagbahara, on the basis of which the First Information Report of Ex.P-7 was registered at Police Station Bagbahara. 10 19. Head Constable Somchand Dahriya (PW-10) has stated that upon receiving information about the incident, he reached CHC Bagbahara on 13.12.2009 and filled out the medical examination form for the injured Shamsher Khan. This is confirmed by the medical examination form Ex.P.10. Dr. Vijay Pratap Singh (PW-3), while certifying the examination report Ex.P-2, has stated in his deposition that on 13.12.2009, the injured Shamsher Khan was brought to the hospital by some persons as an outpatient in an inebriated state and with minor injuries. He then provided first aid to Shamsher Khan. The men who brought him then took Shamsher Khan to his home. Thereafter, after some time later, Shamsher Khan was brought back to the hospital by his family. He was bleeding from his nose and found following injuries :- 1- There was a scratch mark above his right eye measuring 2 cm x 1 cm and was irregular in shape. 2- The right eyelid was swollen and appeared blue. 3- There was a scratch mark on the right side of the mouth measuring 1 x 1 cm. 4- There was a bruise and a cut on the thumb of the left hand, measuring 1 x 1 cm. 5- There was a scratch mark in front of the eye, the size of which I have not shown. 6- There was a torn wound on the lower lip, measuring 2 x 1 cm. 7- There was a scratch mark on the knee of the left leg, the size of which was 1 times 1 cm. 11 20. Dr. Vijay Pratap Singh (PW-3) opinion is that some of the blows to Shamsher Khan were inflicted by a hard, blunt, and rough instrument, and that the injuries occurred within two hours of his examination. Dr. Vijay Pratap Singh's examination report proves that Shamsher Khan suffered seven blows to his body, and that the injuries to Shamsher Khan occurred on 13.12.2009. 21. Dr. Vijay Pratap Singh (PW-3) had advised to get X-ray done of the forehead area above the right eye of Shamsher Khan and he had referred Shamsher Khan to Medical College Raipur for treatment. Dr. Rajiv Sahu (PW-11) has certified the bed head ticket Ex.P20 relating to the admission and treatment of Shamsher Khan at Dr. B.R. Ambedkar Hospital and has stated that there was a fracture in the frontal bone of Shamsher Khan's head and a blood clot had formed in the outer layer of the brain near the said injury and air had also entered inside the brain. Shamsher Khan was treated under his supervision. Thus, according to the statement of Dr. Rajesh Sahu (PW-11), Shamsher Khan had suffered a fracture in his head and a blood clot had formed in the outer layer of his brain. 22. In the instant case, X-ray report has not been presented. Therefore, based on the oral statement of Dr. Rajiv Sahu (PW-11), it cannot be assumed that Shamsher Khan suffered a skull fracture. Thus, the prosecution has failed to prove that Shamsher Khan suffered a serious head injury. 12 23. Appellant – Shamsher Khan (PW-8) has stated in his Court statement that accused Neeraj first hit him with a bottle-like object. This witness further stated that he did not see the color of the bottle or whether it was labeled, nor could he determine whether it was a plastic or glass bottle. A plastic bottle cannot cause a head injury. In such a situation, it would be presumed that the bottle he claims to have hit him with must have been a glass bottle. Bottles do not have any specific identification marks, and appellant Shamsher was unable to see its color or whether it was labeled. In this situation, the seizure of the bottle without obtaining the accused's statement under Section 27 of the Evidence Act cannot be used to conclude that the bottle itself was the one used to inflict injury on appellant Shamsher. The seizure witnesses Pankaj Soni (PW-1) and Naresh Chandrakar (PW-6) have also denied the seizure of the bottle. There is no basis to believe that the seized bottle was used in the incident, as beer bottles are commonly available, and the seizure of the beer bottle occurred three months after the incident. Thus, the prosecution's evidence does not establish that the bottle seized in this case was used by accused Neeraj Soni to cause injury to appellant Shamsher Khan. 24. When many people come together to assault one person, although that person can tell who struck him first, but it is impossible for him to explain how the accused subsequently struck him and where they struck him. Contrary to his police statement, Ex.D-3, 13 appellant Shamsher Khan stated for the first time in Court that Neeraj grabbed both his legs, lifted him up, and threw him headlong. The origin of the incident also appears to be questionable from appellant Shamsher Khan's statement. Dr.Vijay Pratap Singh (PW-3) has stated in his testimony that the people who first brought Shamsher to the scene said that Shamsher had fallen down after drinking alcohol and had a minor scratch on his forehead. The above statement by Vijay Pratap Singh (PW-3) casts doubt on the credibility of the entire prosecution, and the evidence presented by the prosecution indicates that appellant Shamsher Khan was drunk at the time of the incident. Being in an inebriated state, it is not possible to tell how many people assaulted him and for this reason there is contradiction in the Court statement of the appellant Shamsher Khan and his statement given to the police in Ex.D-3. 25. The statements of appellant Shamsher Khan (PW-8) and his brothers Firoz Khan (PW-5) and Shamshad Khan (PW-7) were taken approximately 12 days after the incident, and the Investigating Officer and the aforementioned witnesses have given different reasons for the delay. This fact also casts doubt on the credibility of the prosecution. 26. Based on the above analysis and conclusions, the trial Court has acquitted accused/ respondents of the charge of Sections 307 read with Section 34 of the IPC for attempt to murder of appellant 14 Shamsher Khan in sharing common intention by giving benefit of doubt. 27. 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 03.07.2010. The incident in question pertains to the year 2009, and the petition seeking leave to appeal against acquittal was filed in the year 2010. Subsequently, the appeal was admitted on 24.02.2011. 28. Given the fact that more than 15 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. 29. Accordingly, the appeal, being devoid of substance, deserves to be dismissed and is hereby dismissed. 30. 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 Chandra