1 2025:CGHC:12767-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 463 of 2010 State Of Chhattisgarh, Through : District Magistrate Korba, District Korba (CG) ... Appellant versus 1 - Santosh Kumar Gond, aged about 28 years, S/o Jai Singh Gond, 2- Jai Singh Gond, aged about 55 years, S/o Baisakhu Gond, Both of R/o Patarapara, Sirmina Korbi, Katghora, District Korba ---- Respondents For Appellant/State : Mr. Ruhul Ameen, Panel Lawyer For Respondents : Mr. Akhtar Hussain, Advocate Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board. 18.03.2025 Per Sanjay S. Agrawal, J. 1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 11.08.2009 passed by the SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.03.19 10:58:26 +0530 2 Additional Sessions Judge, Katghora (CG) in Sessions Trial No.75/2007, whereby, the respondents have been acquitted from the offence punishable under Section 302/34 of IPC. 2. Briefly stated, the case of the prosecution is, that on 18.06.2007, at 8.45 am, a Merg intimation (Ex.P-1) was lodged by one Karuna Singh Raju, who is the nephew of deceased- Lalchand, before the Police Chowki- Korbi, stating therein, that on 17.06.2007, around 4.00 pm, when he was about to go to village Koti Kharra, had heard the noise of his uncle deceased- Lalchand “cpkvksa cpkvksa”, owing to which, he rushed to the spot where he has seen that his brother- Jai Singh and Santosh, the son of said Jai Singh, were quarreling with him and when the deceased- Lalchand ran towards the field of one Gajaha, where Santosh took a wooden stick lying there and assaulted on the back side of his head, as a result of which, blood was oozing and stated further that one Fekuram Yadav also reached there at that particular time and the said Santosh told both of them not to give any evidence. Upon receiving the alleged information, an First Information Report (Ex.P-2) was registered against the respondents in connection with Crime No.74/2007 for the offence punishable under Section 302/34 of IPC. Inquest of the dead body was conducted vide Ex.P-4 and was sent for autopsy, which was conducted by Dr. Kiran Kishore (PW-6), who vide his report (Ex.P-14) opined the cause of death to be coma which occurred due to injuries to the vital centre of the brain and hypovolemic shock due to massive internal and external bleeding and, accordingly, cause of death was opined to be homicidal in nature. 3 During investigation, a wooden stick which contains dots like blood was recovered at the instance of respondent No.1- Santosh Kumar Gond vide Ex.P-8 and a full pant with stained like blood was recovered vide Ex.P-9, while sweater with blood stained was recovered from respondent No.2- Jai Singh Gond vide seizure memo Ex.P-10 and the articles, so recovered, were sent for chemical examination, but, no report in this regard has been placed on record. After recording the statements of the eye-witnesses, i.e. Karuna Singh Raju and Fekuram Yadav, along with others’, the concerned Investigating Officer has submitted his charge-sheet before the Judicial Magistrate First Class, Katghora against the respondents with regard to the offence mentioned herein-above and the matter was, thereafter committed to the learned Additional Sessions Judge, Katghora for its trial, where charge has been framed against the respondents under Section 302/34 of IPC, which was denied by them and claimed to be tried. 3. In order to bring home the guilt of the accused/respondents, the prosecution has examined as many as 8 witnesses and has exhibited 25 documents, while one witness was examined by the respondents in their defence. 4. The trial Court, after considering the evidence led by the prosecution, particularly, the statements of Karuna Singh Raju (PW-1) and Fekuram Yadav (PW-4), held that the statements of theirs’ are not trustworthy and accordingly, acquitted the respondents from the commission of the alleged crime and, being aggrieved, the instant appeal has been 4 preferred by the appellant/State. 5. Learned counsel appearing for the appellant/State submits that the finding of the trial Court holding that the respondents are not involved in connection with the alleged crime, is apparently contrary to law, in as much as, the evidence led by the prosecution, particularly, the statements of Karuna Singh Raju (PW-1) and Fekuram Yadav (PW-4) have not been scanned in its proper manner and thereby, erred in acquitting the respondents from the commission of the alleged offence, as such. 6. On the other hand, learned counsel appearing for the respondents while placing his reliance upon the decision rendered by the Supreme Court in the matter of Mallappa and Others Vs. State of Karnataka, reported in (2024) 3 SCC 544, has supported the impugned judgment of acquittal as passed by the trial Court. 7. We have heard learned counsel appearing for the parties and perused the entire record carefully. 8. Before considering the propriety of the judgment passed by the trial Court, acquitting the respondents from the alleged offence punishable under Section 302/34 of IPC, it would be appropriate to see the approach, which is required to be adopted, while dealing with an acquittal appeal, in the light of the principles laid down by the Supreme Court in the matter of Mallappa (supra), wherein, it has been observed in this regard at paragraphs 25 to 29 as under :- 5 “25. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re- visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The ‘two-views theory’ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a 6 plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of the law. 28. In Selvaraj v. State of Karnataka (2015) 10 SCC 230,(SCC pp. 236-37,para 13) “13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p.643, para 9) “9...…We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.” 29. In Sanjeev v. State of H.P. (2022) 6 SCC 29 4 , the Hon’ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus: (SCC p.297, para 7) 7 “7. It is well settled that: 7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436 and, Anwar Ali v. State of H.P. (2020) 10 SCC 166). 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. (1955) SCC OnLine SC 51) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala (1998) 5 SCC 412)” 9. In view of the aforesaid principles laid down by the Supreme Court, it is necessary to examine the facts and the evidence as led by the prosecution in order to ascertain as to whether the findings recorded by the trial Court, acquitting the respondents from the commission of the alleged offence, are perverse or would deserves to be upheld. 10. From perusal of the record, it appears that on account of the incident occurred on 17.06.2007, a Merg intimation (Ex.P-1) was lodged by one Karuna Singh Raju, who was the nephew of deceased- Lalchand, by intimating to the concerned Police Station that when he heard the noise “cpkvksa cpkvksa” of his uncle- Lalchand, he rushed to the spot, where, he has seen that the respondents were quarreling with him (Lalchand) and the respondent No.1- Santosh Kumar Gond had 8 assaulted on the backside of his head with the aid of wooden stick and at that particular time, one Fekuram Yadav had also reached there and upon seeing both of them, said Santosh told them not to give any evidence of it and stated further that said Jai Singh Gond and his son Santosh have murdered the deceased- Lalchand while assaulting him. In order to establish the alleged fact, said Karuna Singh Raju was examined as PW-1 and, a bare perusal of his statement would show that a quarrel had taken place between the deceased- Lalchand and the respondent No.1- Santosh Kumar Gond and not with said Jai Singh Gond, who was the real brother of the deceased- Lalchand and was standing far from the spot, though, it was stated by said Karuna Singh Raju in the said Merg intimation (Ex.P-1) that he ( Jai Singh Gond) was also involved regarding the alleged assault with said Lalchand. It appears further from his testimony that he has seen one Fekuram Yadav who was going towards the place of incident, when he was running away from the spot and, he (Karuna Singh Raju) went to the village “Koti Kharra”. 11. It is to be noted here that when he (Karuna Singh Raju) had seen the alleged incident that his uncle Lalchand was being assaulted by said Santosh Kumar Gond with the aid of wooden stick and was lying on the floor, but he did not come forward for his help, nor had took him to the Hospital and instead went to the village “Koti Kharra”, nor even intimated the alleged information on the said day itself. The conduct of the said witness, thus, appears to be highly unreasonable, particularly, when he was the real nephew of deceased- Lalchand, but has not 9 taken appropriate steps immediately thereafter, nor has lodged the report immediately on the said fateful day and, instead reported the matter on the next day, i.e. on 18.06.2007 at 8.45 am. Even otherwise, his statement is not found to be corroborated by said Fekuram Yadav (PW-4), as he turned hostile without supporting the prosecution case. The prosecution has, thus, failed to produce any cogent and reliable evidence in order to show that the respondents were involved in connection with the alleged crime, so as to call for any interference in the judgment impugned passed by the trial Court. 12. The appeal being devoid of merit, is accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge sunita