1 2025:CGHC:33922-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1470 of 2022 State Of Chhattisgarh Through District Magistrate, District- Koriya At Baikunthpur, Chhattisgarh ... Petitioner versus 1 - Shiv Narain Sahu S/o Late Ram Dulare Aged About 43 Years R/o Village- Kasra Chhattasarai, Police Station- Patna, District- Koriya, Chhattisgarh 2 - Janki Bai W/o Shiv Narain Sahu Aged About 45 Years R/o Village- Kasra Chhattasarai, Police Station- Patna, District- Koriya, Chhattisgarh 3 - Suraj Sahu S/o Shiv Narain Sahu Aged About 24 Years R/o Village- Kasra Chhattasarai, Police Station- Patna, District- Koriya, Chhattisgarh ... Respondents For Petitioner/State : Mr. Shaleen Singh Baghel, Dy. Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Naresh Kumar Chandravanshi, Judge Order on Board Per Ramesh Sinha, Chief Justice 18.7.2025 1. Heard on the application for grant of leave to appeal. 2. The applicant/State has sought leave to appeal against the impugned judgment dated 12.4.2022 passed by Additional Sessions Judge (FTC), Baikunthpur (Korea) (CG) in Sessions Case No.62/2019, whereby respondents have been acquitted/convicted in the following manner:- BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.07.21 18:03:07 +0530 2 Sl. No. Name of the accused Offence charged U/s. Convicted U/s. Acquitted U/s. 01. Shiv Narain Sahu 302, 323, 34 IPC 323 IPC 302, 34 IPC 02. Janki Sahu 302, 323, 34 IPC ……... 302, 323, 34 IPC 03. Suraj Sahu 302, 323, 34 IPC 302 IPC 323, 34 IPC 3. It is pertinent to mention here that respondent No.3- Suraj Sahu filed criminal appeal bearing Cr.A No.823/2022, whereby, this Court vide judgment dated 20.9.2023, partly allowed the appeal and his conviction and sentence under Section 302 IPC was set aside and instead thereof, he was convicted under Section 304 Part-I IPC and sentenced to undergo RI for 10 years and to pay fine of Rs.2,000/- with default stipulation. 4. Case of the prosecution, in brief, is that the respondents have been prosecuted for commission of offence under Sections 302, 323, 34 of the IPC in connection with Crime No.83/2019 registered at Police Station Patna, Distt. Baikunthpur at Korea. The victim Matallu Sahu (PW-9) has lodged FIR on 27.4.2019 in Police Station Patna, Distt. Korea stating that Ambika Sahu (since deceased) along with one Bablu came to him and asked him to accompany them to the house of the accused/respondent No.3 Suraj Sahu, who was the son-in-law of Ambika Sahu. Matallu Sahu along with Bablu and Ambika Sahu went to the house of accused persons in village Kasra. There Ambika Sahu asked the accused persons to return the dowry articles, that had been 3 given during the marriage of his daughter with accused Suraj Sahu, on the ground that his daughter had now settled with someone else. Accused Suraj demanded Ambika Sahu to return the Mangal sutra. In this regard a dispute erupted between the parties. On seeing that the situation is getting tensed, the complainant along with Bablu came out of the house and Ambika Sahu also came out of the house. Accused Suraj followed Ambika Sahu and assaulted him with an axe due to which he fell down. Respondent No.1 Shiv Narain also assaulted Ambika Sahu with danda, Suraj again assaulted Ambika Sahu with lakdi ka batta, even mother of Suraj (respondent No.2 Janki Bai) also assaulted Ambika Sahu with hand and fist. When the complainant tried to save Ambika Sahu, he was also assaulted by danda and lakdi ka batta by Shiv Narain and Suraj, due to which he sustained injuries on his right hand. Then Bablu took him away on his motorcycle. Ambika Sahu succumbed to the injuries. Based on the above, FIR has been registered and further investigation was carried out. Inquest of the dead body of the deceased was prepared vide Ex-P/2, accused persons were arrested Vide Ex-P/9 to P/11. Memorandum statements of the accused Suraj Sahu and Shiv Narain Sahu were recorded vide Ex-P/3 & P/4. On the basis of their memorandum statement, articles used for commission of offence were seized vide Ex-P/7 & P/6 respectively. Statement of the witnesses were recorded. The dead body was sent for postmortem. Dr. Priyanka Pandey (PW-8) conducted postmortem of the deceased and given her report vide Ex-P/14, wherein she opined that cause of death is cardiac pulmonary arrest, mode of death is 4 hypovolaemic shock due to internal and external hemorrhage and ruptured spleen and left kidney. 5. After necessary investigation, charge sheet was filed and respondents were put to face charges before the learned trial Court. Having been charged under Sections 302, 323, 34 IPC, the respondents adjured the guilt. In order to prove its case, the prosecution examined as many as 12 witnesses in its favour. 6. After appreciating the evidence available on record, learned trial Court did not completely believe the evidence proving guilt of the respondents/accused and therefore, acquitted/convicted them of the offence charged vide impugned judgment dated 12.4.2022 in the manner as has been mentioned in para 2 above. Hence, this grant of leave to appeal. 7. Learned Deputy Advocate General appearing for the applicant/State submits that the prosecution has fully proved the case against the respondents/accused, but the trial Court has wrongly discarded the evidence adduced by the prosecution and has acquitted respondent No.1 for the offence under Section 302/34 IPC; respondent No.2 of the offence under Section 302, 323, 34 IPC and acquitted respondent No.3 of offence under Section 323/34 IPC. The learned trial Court is not justified in discarding the evidence of injured eye witness Matallu Sahu (PW-9), who has categorically deposed that the deceased was beaten by all the three accused persons and when he tried to help the deceased for getting up, this witness was also beaten by respondent No.1-Shiv Narain Sahu by wooden stick, due to which he 5 sustained injury on his hand. He further submits that the learned trial Court ought to have appreciated the active role played by respondents No.1 & 2 along with respondent No.3 in assaulting and committing murder of deceased Ambika Sahu, which was made by them in furtherance of their common intention. Thus, the judgment of the trial Court, so far as it relates to acquittal of respondents No.1 of the offence under Section 302/34 IPC ; acquittal of respondent No.2 of the offence under Sections 302, 323, 34 and acquittal of respondent No.3 of the offence under Section 323/34 is bad in law, therefore, leave to appeal deserves to be allowed. 8. We have heard learned Deputy Advocate General appearing for the applicant/State and perused the record of the case including the impugned judgment. 9. Learned trial Court considered witnesses Sanjai Kumar (PW-2), Ajai Sahu (PW-5), Amol Das (PW-6), Matallu Sahu (PW-9) and Bablu @ Istikhar (PW-12) as prime witnesses. However, except PW-9, all other witnesses have turned hostile and they have not supported the case of the prosecution. The learned trial Court while acquitting the respondents No.1 & 2 of the offence under Section 302 IPC has observed in para-23 of its judgment that in so far as role of A-1(Shiv Narain Sahu) and A-2 (Janki Bai) is concerned, Matallu Sahu (PW-9) had deposed that Shiv Narain Sahu assaulted the deceased with lakdi ka batta and Janki Bai with wooden stick, whereas seizure of such batta has been shown from A-3 (Suraj Sahu) and wooden stick from A-1. However, while lodging FIR, PW-9 has stated that A-1 assaulted with wooden stick and A-2 with 6 hand and fist. In this way, while considering the verision of PW-9, there are material contradiction and omission regarding role of A-1 and A-2. Further, as per statement of PW-9, having been assaulted with an axe, the deceased was groaning upon falling on the ground, there was hardly any occasion for A-1 and A-2 to join A-3, as deceased was not in a position to retaliate. Considering the statement of PW-9 with regard to role of A-1 and A-2 in committing assault to the deceased in all the angles, suspicion arise that PW-9 had try to rope in entire family with bald allegation. However, PW-9 has categorically stated in para-2 that, the moment he went to help deceased, A-1 beaten him with stick, causing injury over palm. His statement also finds due corroboration from medical report Ex.P/9 and statement of attending doctor PW-4. The trial Court after appreciating the evidence available in record and also considering the various judgments of Hon’ble Apex Court regarding ‘suspicion’ and ‘proof’ in respect of charge under Sction 302 IPC, has come to the conclusion that A-1 and A-2 are entitled to reap benefit of doubt in respect of charge under section 302 IPC. However, role of A- 1/Shiv Narain having been proved in causing hurt to PW-9, he is liable to be convicted under Section 323 IPC. For want of cogent, clinching and convincing evidence, A-2/Janki is entitled to benefit of doubt of all the charges framed against her. There is no allegation that A-3/Suraj Sahu beaten PW-9, therefore, he is entitled to be acquitted of the offence under Section 323 IPC for causing hurt to PW-9, however, he is liable to be convicted for causing death of deceased Ambika Sahu with such intention. 7 10. After due perusal of the evidence of the said eye witnesses, most of them except PW-9, have not supported the case of prosecution and turned hostile and further considering the findings recorded by the trial Court, acquitting the respondents/accused from aforesaid offences, we do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal. As it is a case of prosecution itself that when the deceased had gone to the house of the accused persons and asking of return of dowry, as his daughter (wife of accused Suraj) has settled with some one else, on this issue altercation erupted between them and all of sudden, accused Suraj assaulted the deceased with axe, hence, he succumbed to the injuries. It is also stated that the assault was also made by danda and lakdi ka batta upon the deceased and PW-9. Thus, as per the case of the prosecution itself, altercation erupted all of sudden. It is not proved from the evidence adduced by the prosecution that there was prior meeting of minds of the accused persons for commission of crime. 11. 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 Ram" reported in 2022 SCC OnLine SC 984, 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 8 be warranted only if the view taken is not possible at all." 12. Recently, the Hon’ble Supreme Court in the case of Constable 907 Surendra Singh & Anr. Vs. State OF Uttarakhand in Criminal Appeal No.355/2013, order dated 28.01.2025, in para 18 & 19 has held as under:- 18. By now it is a settled principle of law that for convicting the accused with the aid of Section 34 of the IPC the prosecution must establish prior meetings of minds. It must be established that all the accused had preplanned and shared a common intention to commit the crime with the accused who has actually committed the crime. It must be established that the criminal act has been done in furtherance of the common intention of all the accused. Reliance in support of the aforesaid proposition could be placed on the following judgments of this Court in the cases of: (i) Ezajhussain Sabdarhussain and another v. State of Gujarat, (2019) 14 SCC 339 (ii) Jasdeep Singh alias Jassu v. State of Punjab, (2022) 2 SCC 545 (iii) Gadadhar Chandra v. State of West Bengal, (2022) 6 SCC 576 (iv) Madhusudan and others v. State of Madhya Pradesh, 2024 SCC Online SC 4035 19. In the present case, as observed by the learned trial judge, the prosecution has failed to place on record any evidence to show that the accused Nos. 2, 3 and 4 (the appellants herein) had common intention with accused No.1-Jagdish Singh prior to the accused No.1-Jagdish Singh’s shooting at the deceased resulting in her death. 9 13. In the instant case also, it is not proved from the evidence adduced by the prosecution that prior to the incident, there is meeting of minds of accused No.1 & 2 along with accused No.3 for commission of said offence. Therefore, we do not find any infirmity or illegality in the impugned judgment acquitting the accused No.1 - Shiv Narain Sahu of offence under Sections 302, 34 IPC, accused No.2 Janki Sahu of offence under Sections 302, 323, 34 IPC and accused No.3 Suraj Sahu of offence under Section 323, 34 IPC. 14. Thus, for the foregoing reasons, the Criminal Miscellaneous Petition seeking for leave to appeal being totally devoid of merits the same is rejected. Consequently, the appeal also stands dismissed. Sd/- Sd/- (Naresh Kumar Chandravanshi) (Ramesh Sinha) Judge Chief Justice Bini