Page No.1 of 15 IN ACQA-153-2015 2025:CGHC:49779-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Acquittal Appeal No. 153 of 2015 [Arising out of judgment dated 29.03.2014, passed in Sessions Trial No.73 of 2009 (State of Chhattisgarh v. Vijay Kumar Kaser and others) by the 5th Addl. Sessions Judge, Durg (CG)] The State of Chhattisgarh, through- District Magistrate Durg, (Chhattisgarh) ... Appellant Versus 1 - Vijay Kumar Kaser, S/o Visnu Prasad Kaser, aged about 28 years R/o Dipaknagar, Gali No.-04, P.S. Mohannagar, District- Durg, (Chhattisgarh) 2 - Rinku Shukla, S/o Bholanath Shukla, aged about 19 years, R/o Professer Colony, Dipaknagar, P.S. Mohannagar, District- Durg, (Chhattisgarh) 3 - Omprakash @ Ommu S/o Govind Patnayak, aged about 2 years, R/o Dipaknagar, P.S. Mohannagar, District- Durg (Chhattisgarh) ... Respondents [Cause-titles taken from Case Information System (CIS)] -------------------------------------------------------------------------------------------------- For Appellant/State: Mr. R.S. Marhas, Addl. Advocate General For Respondents: Mr. Aman Pandey & Ms. Anuja Sharma, Advocates -------------------------------------------------------------------------------------------------- Division Bench Hon'ble Mr. Justice Sanjay K. Agrawal and Hon'ble Mr. Justice Radhakishan Agrawal Judgment on Board (07.10.2025) Sanjay K. Agrawal, J (1) By this acquittal appeal filed under Section 378(1) of the Code of Criminal Procedure (for short the “CrPC”), the appellant/State is SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 15 IN ACQA-153-2015 calling in question the legality, validity and correctness of impugned judgment of acquittal dated 29.03.2014, passed in Sessions Trial No.73 of 2009 (State of Chhattisgarh v. Vijay Kumar Kaser and others) by the 5th Addl. Sessions Judge, Durg (CG), whereby the learned trial Court has acquitted all the accused/respondents No.01 to 03 herein for offence under Sections 302/34 of the Indian Penal Code (IPC). Facts of the case, in brief: (2) According to the case of the prosecution, on 13.10.2008 between 22:15 hours to 22:30 hours, at Gali No.6, Deepak Nagar, which comes within the ambit of Police Station Mohannagar, District Durg (CG), the accused/respondents No.01 to 03 firstly shared common intention with each other of killing Satwant Singh @ Banti (hereinafter referred to as the “deceased”) and, thereafter, in furtherance thereof, accused/respondents No.02 & 03 herein caught hold of the deceased and accused/respondent No.01 herein caused stab injury to the deceased by means of knife on his abdomen, due to which, the deceased firstly suffered grievous injuries and died on the way to the hospital. It is also the case of the prosecution that one- Abhishek Gupta was also involved in the crime in question alongwith the accused persons herein, but he remained absconded during the trial. In the present case, firstly, zero numbered merg intimation was registered by the police vide Ex.P/10 and thereafter Page No.3 of 15 IN ACQA-153-2015 numbered merg was registered vide Ex.P/11 by SI- Vinod Kumar Singh (PW-10) on 14.10.2008. Thereafter, on 13.10.2008, on the basis of written report (Ex.P/19) lodged by Khalvinder Singh (PW-12) [brother-in-law of the deceased], FIR vide Ex.P/15 was registered by the police for offence under Sections 307/34 of IPC against the accused/respondents No.01 to 03 herein alongwith absconded accused- Abhishek Gupta and wheels of investigation started running, in which, summons under Section 175 of CrPC was issued vide Ex.P/06 and inquest proceedings were conducted vide Ex.P/07. However, when the deceased was brought dead to the hospital certificate to that effect was issued vide Ex.P/08 by Dr. Vivek Sinha (PW-09) and intimation of the same was also sent to the police vide Ex.P/09 and, upon which, offence under Section 302/34 of IPC was registered against the accused persons. (3) Thereafter, the dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Anil Agrawal (PW-04) and, according to PM report (Ex.P/03) the cause of death of the deceased is cardio-respiratory failure as a result of hemorrhagic and neurogenic shock due to injury over abdomen and nature of death is homicidal. The accused-respondents herein were arrested vide Ex.P/13, Ex.P/17 & Ex.P/18 respectively. Further, memorandum statement of the accused- Vijay Kumar Kaser (A-1) was recorded vide Ex.P/04 and, pursuant to which, one knife has been seized. Though, as per final report (Ex.D/15) it is mentioned that the seized Page No.4 of 15 IN ACQA-153-2015 articles were sent for chemical examination, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the accused-respondent No.1 for offence under Section 302 of IPC and against the accused-respondent No.02 to 03 for offence under Section 302/34 of IPC, in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the accused persons abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 19 documents, whereas the accused persons in support of their defence, have examined 01 witness and exhibited 14 document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to acquit all the accused/respondents No.01 to 03 herein for offences under Sections 302/34 of IPC vide impugned judgment dated 29.03.2014, against which, this acquittal appeal has been preferred before this Court. Submissions of parties: (6) Mr. R.S. Marhas, learned Additional Advocate General appearing on behalf of the appellant-State would submit that the Page No.5 of 15 IN ACQA-153-2015 learned trial Court is absolutely unjustified in acquitting the accused persons, as there are ample evidence available on record to connect them with the offences in question in shape of direct testimony of eye-witness, namely, Bhupendra Singh @ Goldi (PW- 02), Ranjay Singh (PW-05), Kundan Singh (PW-06) and Rakesh Rajput (PW-07). The learned trial Court has committed grave legal error while disbelieving the testimonies of these eye-witnesses, which is contrary to the evidence available on record by recording findings which are perverse and contrary to the record. Hence, in exercise of appellate power, the acquittal appeal preferred by the appellant-State deserves to be allowed and, further, the accused persons (respondents No.01 to 03) are liable to be punished for the offences in question. (7) Per-contra, Mr. Aman Pandey and Ms. Anuja Sharma, learned counsel appearing for the acquitted accused persons (A-1 to A-03) by rely upon the decision of the Supreme Court in the matter of Constable 907 Surendra Singh and another v. State of Uttarakhand 1 jointly submit that the scope of interference in an appeal against the judgment of acquittal is extremely limited. They further submits that the testimonies of the prosecution witnesses, specially the so called eye-witnesses, namely, Bhupendra Singh @ Goldi (PW-02), Ranjay Singh (PW-05), Kundan Singh (PW-06) and Rakesh Rajput (PW-07) are not reliable and trustworthy and there are various 1 2025 INSC 114 Page No.6 of 15 IN ACQA-153-2015 contradiction and omissions in their statements. Even otherwise, nothing incriminating has been seized from the exclusive possession of any the acquitted accused/respondents. Forensic evidence is also not available in the present case to hold the accused persons herein guilty for the offences in question. Accordingly, the findings recorded by the learned trial Court in acquitting all the accused persons are well merited and, no interference by this Court is called for in it. Hence, the acquittal appeal preferred by the appellant-State is liable to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Discussion and analysis: (9) At the very outset, we would firstly consider the scope of interference in an appeal against the judgment of acquittal, for which, it would be profitable to notice the relevant principle of law laid down by their Lordships of the Supreme Court in the matter of Constable 907 Surendra Singh and another (supra), whereby in Para-11 & 12 it has been held that the High Court should interfere in the order of acquittal, if the same suffers from perversity and is based on misreading of material evidence etc. and observed as under: “11. Recently, in the case of Babu Sahebagouda Page No.7 of 15 IN ACQA-153-2015 Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482- 83, para 29) 6 (2024) 8 SCC 149 “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, Page No.8 of 15 IN ACQA-153-2015 “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however,must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.’ ” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further Page No.9 of 15 IN ACQA-153-2015 strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of Page No.10 of 15 IN ACQA-153-2015 acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” (10) Thus, in light of the above quote guidelines, we have to examine whether the findings recorded by the learned trial Court suffers from patent perversity or the same is based on misreading/omission to consider material evidence on record and whether two reasonable views are possible or only the view consistent with the guilt of the accused is possible from the evidence available on record. (11) In the case at hand, the case of the prosecution is mainly based on the testimonies of eye-witnesses, namely, Bhupendra Singh @ Goldi (PW-02), Ranjay Singh (PW-05), Kundan Singh (PW-06) and Rakesh Rajput (PW-07) and, therefore, it would be appropriate to scrutinize the same carefully to consider whether their testimonies are trustworthy and reliable qua witness to the incident. a) Bhupendra Singh @ Goldi (PW-02): it is the case of the prosecution that the Bhupendra Singh @ Goldi (PW-02) has witnessed the incident in question. However, the statement of Bhupendra Singh @ Goldi (PW-02) under Section 161 of CrPC (Ex.D/1) was recorded on the next day to the incident i.e. on Page No.11 of 15 IN ACQA-153-2015 14.10.2018. Though, in his statement before the Court he has stated that at the time of the incident, accused-respondents No.02 & 03 i.e. Rinku (A-2) and Omprakash (A-3) came towards the deceased and caught hold of the deceased and accused-respondent No.01 i.e. Vijay Kumar (A-1) assaulted the deceased by means of knife on his abdomen, but in his statement recorded under Section 161 of CrPC (Ex.D/01) the said fact is completely missing. It is also not clear from his statement recorded under Section 161 of CrPC (Ex.D/01) whether he was informed about the incident from someone else or he has personally seen the incident. Even otherwise, if the statement of Bhupendra Singh @ Goldi (PW-02) that he has seen the accused- respondent No.01 assaulting the deceased on the date of offence is accepted, then also it cannot be relied upon for the reason that he did not report the matter to the police or lodged FIR in the present case. As such, for the aforementioned reasons, the learned trial Court has rightly disbelieved the testimony of Bhupendra Singh @ Goldi (PW-02) to be an eye-witness to the incident, as there are material contradiction and omission in his statement. We do not find any perversity or illegality in the findings recorded by the learned trial Court while disbelieving the testimony of Bhupendra Singh @ Goldi (PW-02) to be an eye-witness to the incident. It is held accordingly. b) Ranjay Singh (PW-05): it is further case of the prosecution that Ranjay Singh (PW-05) was present at the time of incident in Page No.12 of 15 IN ACQA-153-2015 question and has seen the same. However, according to the statement of Head Constable No.824- Phool Chand Bhuarya (DW- 01), Ranjay Singh (PW-05) remained absconded from 16.10.2006 to 07.11.2008 in connection with the criminal case being Crime No.331/2008. As such, Ranjay Singh (PW-05) has criminal antecedent. Though, he is stated to be an eye-witness to the incident, but his statement under Section 161 of CrPC (Ex.D/02) was only recorded on 07.11.2008 i.e. the date of his arrest in the said crime. Ranjay Singh (PW-05) has neither took the deceased to the hospital after the incident nor he lodged FIR in the present case. Even otherwise, Ranjay Singh (PW-05) has also not informed about the incident to any of the relatives of the deceased. Further, there is no explanation at any point of time as to why the statement of Ranjay Singh (PW-05) under Section 161 of CrPC (Ex.D/02) was not recorded promptly, as the incident is said to have taken place on 13.10.2008 and his statement was recorded on 07.11.2008 i.e. after a delay of 23 days. As such, for the aforementioned reasons, it creates a doubt on the statement of Ranjay Singh (PW-05), which makes it unreliable and untrustworthy. Hence, we do not find any perversity or illegality in the findings recorded by the learned trial Court while disbelieving the testimony of Ranjay Singh (PW-05) to be an eye- witness to the incident also. It is held accordingly. c) Kundan Singh (PW-06) and Rakesh Rajput (PW-07): though it is the case of the prosecution that Kundan Singh (PW-06) and Page No.13 of 15 IN ACQA-153-2015 Rakesh Rajput (PW-07) both were present at the spot at the time of incident i.e. on 13.10.2008 and have seen the incident in question, but their statements under Section 161 of CrPC (Ex.D/03 & Ex.D/04) were recorded on 26.12.2008 i.e. after a delay of more than 02 months. Even, IO- Vinod Kumar Singh (PW-10) has stated that the statements of Kundan Singh (PW-06) and Rakesh Rajput (PW-07) was recorded on 26.12.2008 and there is no explanation for delay of 02 months in recording the same. Furthermore, Kundan Singh (PW- 06) and Rakesh Rajput (PW-07) both have neither took the deceased to the hospital nor they reported the matter to the police or informed about the incident to any of the relatives of the deceased. As such, for the aforementioned reasons, the learned trial Court has rightly disbelieved the testimonies of Kundan Singh (PW-06) and Rakesh Rajput (PW-07) to be eye-witnesses to the incident, as there are sufficient reason for disbelieving their testimonies, which suffers from major contradiction and omissions. We do not find any perversity or illegality in the findings recorded by the learned trial Court while disbelieving the testimony of Kundan Singh (PW-06) and Rakesh Rajput (PW-07) to be eye-witnesses to the incident. It is held accordingly. (12) Apart from it, it is also the case of the prosecution that pursuant to the memorandum statement of the accused-respondent No.01 herein i.e. Vijay Kumar (A-1) recorded vide Ex.P/04, one knife has been seized vide Ex.P/05, which is stated to be sent for chemical Page No.14 of 15 IN ACQA-153-2015 examination. However, no FSL report has been brought on record for the reasons best known to the prosecution and, which, the learned trial Court has also recorded in Para-23 of the impugned judgment of acquittal. Even otherwise, the said knife, which is said to be seized from the accused/respondent No.01 vide Ex.P/05, has not been produced before the learned trial Court. In this regard, the Supreme Court in the matter of Niranjan Panja v. State of West Bengal 2 has held that non-production of the murder weapon will make its recovery unreliable and observed in Para-20 as under: “20. For effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only the part of the statement which is not incriminating and leads to discovery which becomes admissible. The evidence of this witness does not inspire confidence and it is of no use, more particularly, because the so- called hansua allegedly produced by the accused never saw the light of the day nor had the witness identified the same and the prosecution had also not given any explanation whatsoever about the disappearance of this weapon.” Conclusion: (13) In view of foregoing analysis, we are unable to hold that the accused persons (respondents No.01 to 03 herein) are the authors of the crime and, therefore, they are liable to be convicted for the offences in question. The learned trial Court has rightly held all the accused persons (respondents No.01 to 03 herein) entitled for 2 (2010) 6 SCC 525 Page No.15 of 15 IN ACQA-153-2015 acquittal for offences under Sections 302/34 of IPC on the basis of findings recorded in the impugned judgment dated 29.03.2014 and we do not find that the said findings recorded by the learned trial Court suffers from patent perversity or the same is based on misreading/omission to consider material evidence on record and two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. (14) Accordingly, this acquittal appeal filed by the State is liable to be and is hereby dismissed. No cost. Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge s@if