1 2025:CGHC:50038-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 482 of 2010 The State of Chhattisgarh, Through – District Magistrate, Surguja (C.G.) --- Appellant versus 1 - Raju Khanna Raju Khanna, S/o Jagjit Singh Khanna, aged about – 29 years, R/o Ward Mamnipur, P.S. Ambikapur, District – Surguja (C.G.) 2 - Raju Vishwakarma, S/o Bhansaram Vishwakarma, aged about 32 years, R/o Village- Khutiya, P. S. Udaypur, Distt. Surguja (C.G.) 3 - Kameshwar Singh @ Rinku, S/o Keshav Prasad Rajput, R/o Gajipur (U. P.) and Baikunthpur, District-Korea (C.G.) 4 – Anil Mishra, S/o Halev Mishra, aged about 37 years, R/o Namnakala, P.S. Ganghinagar, District – Surguja (C.G.) ... Respondents _________________________________________________________ For State/Appellant : Mr. Shashank Thakur, Dy. A.G. For Respondent Nos. 1, 2 & 4 : Mr. H.S. Ahluwalia, Advocate For Respondent No. 3 : Mr. Amiyakant Tiwari, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 08 . 10 .202 5 1. This Acquittal Appeal under Section 378 (1) of the Criminal Procedure Code has been filed by the State/appellant challenging the legality, validity and propriety of judgment dated 08.10.2009 ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 passed by the learned 4th Additional Sessions Judge (Fast Track Court), Ambikapur (C.G.) in Sessions Trial No.75/2007, whereby the learned trial Court has acquitted the accused/respondents from the charges punishable under Sections 147, 302/149, 120-B & 201 of IPC and further also acquitted accused/respondent Nos. 1 and 3 from the charges punishable under Section 303/149 of IPC holding that the prosecution has failed to prove its case beyond reasonable doubt. 2. The prosecution's case, in brief, is that at the time of the incident, Shubkaran Dwivedi was imprisoned in Central Jail, Ambikapur, on charges of murdering Jagamko, along with PW-23 Amit Soni and others. Shubkaran Dwivedi frequently fought with the prison administration over prisoners' demands and rights, even organizing strikes, which earned him popularity among the prisoners. This led to his dislike by other prisoners, who believed that Shubkaran had come from Uttar Pradesh and was gaining popularity in the jail and was running his own affairs. On 30.09.2006, a day before the incident, some prisoners, including the accused, had a dispute with Shubkaran over a matter of community. The inmates, agitated, abused Shubkaran and threatened to kill him. Shubkaran Dwivedi expressed his fear of being attacked to the Jail Superintendent, PW-26 S.S. Tigga, and requested for protection, promising to go on a hunger strike until he was transferred to another jail. On which the Jail Superintendent gave necessary instructions regarding his 3 security. 3. It is further case of the prosecution that on 01.10.2006, Jail Superintendent S.S. Tigga, after obtaining permission from the District and Sessions Judge for the transfer of prisoner Shubkaran Dwivedi to another jail, demanded police force from the Superintendent of Police and was taking necessary action for the transfer and besides him, PW-2 Ashok Kumar Soni (jail guard), PW-7 Ashok Kumar Sao (Assistant Deputy Jailer), PW-11 Lalghar Ram Bhagat (jail guard), PW-16 Salik Ram Verma (Chief Guard), PW-19 R.R. Rai (Assistant Jailer) were present in Central Jail Ambikapur. Then in the afternoon, when the prisoners had been fed and the lock-up was closed, around 1 pm, about 70-80 prisoners came and in front of barrack No.1 where Shubkaran was lodged, accused Raju Khanna snatched the lock from PW-2, guard Ashok Kumar Soni, and after opening the lock of barrack No.1, entered inside and started assaulting PW-23, prisoner Amit Soni and Shubkaran Dwivedi. They locked Amit Soni in the prison cell and took out Shubkaran Dwivedi, beating him with a stick and fists, who ran towards the mate. The assault by the accused was witnessed by PW-2, jail guard Ashok Kumar Soni, PW-4, Sushil Mishra, PW-5, Raju Pandey, PW-6, Arun Sharan Singh, PW-19, Ganesh Kashyap, PW-21, Samar Vijay Singh Tomar. Jail guard Ashok Kumar Soni rushed to inform the Chief Guard, PW-16, Salik Ram Darma, and the Deputy Jailer, PW-7, Ashok Kumar Sao. PW-7, Ashok Kumar Sao, in turn, informed PW-26, the Jail 4 Superintendent, S.S. Tigga, and PW-18, the Assistant Jailer, R.R. Rai. They all gathered and went to barrack No.1 to find Shubkaran Dwivedi missing. Upon inquiry, the other inmates in that barrack failed to provide any information about Shubkaran, so an alarm was raised. Hearing this, the in-charge Jailer, PW-1, V.K. Saraf, and the Chief Guard, PW-22, Lakshmi Prasad, also gathered. A search was conducted for Shubkaran Dwivedi, but he was not found. Seeing blood in the platform of well, on suspect, a hook was thrown into the well and the body of Shubkaran Dwivedi was found. 4. Written information regarding the discovery of the said dead body was sent to Police Station Ambikapur vide Ex.P-1. Then PW-14 Naib Tehsildar Irshad Ahmed reached there and after informing the Panchanas vide Ex.P-4, prepared the Panchnama of the dead body vide Ex.P-5. The dead body was sent for postmortem, on which PW-3 Dr. J.K. Bhutani, along with Dr. A.K. Jaiswal, examined it and submitted the report vide Ex.P. 2. On 06.10.2006, the investigating officer PW-24 Inspector Nasr Siddiqui prepared the seizure vide Ex.P-3 by taking blood scrapings and plain scrapings from the platform of the well and the bedroom and wall of barrack No.1. Ex.P-6 was prepared by seizing the day and night duty register of the jail. The First Information Report was registered as Ex.P-19. The statement of PW-2, constable Ashok Kumar Soni, was taken. On 07.10.2006, a site map of Ex.P-20 was prepared. On 21.12.2006, PW-24, Inspector Nasr Siddiqui, 5 recorded the statements of prisoners PW-4 Sushil Mishra, PW-5 Raju Pandey, PW-6 Arun Sharan Singh, PW-19 Ganesh Kashyap and PW-21 Samar Vijay Singh Tomar. On 12.01.2007, PW-25, Inspector Bajilal Singh recorded the statements of Jail Superintendent S.S. Tigga and on 18.01.2007, Assistant Deputy Jailer PW-7 Ashok Kumar Sao and Assistant Jailer PW-18 R.R. Rai. On 17.01.2007, information regarding prisoners was taken as per Ex.P-9. The accused were arrested, and after completing the investigation, a challan was presented against them in concerned Jurisdictional Court. It was stated that another accused, Dayashankar Pandey, could not be arrested due to his bail, and a request was made to present a supplementary challan against him. After the challan was presented against the accused, the 4th Additional Sessions Judge received it for consideration of transfer. 5. When the charge sheet was read out and explained to the accused, they denied the crime and claimed trial. Then a total of 26 witnesses were examined by the prosecution. In which Inspector Bajilal Singh was mistakenly examined twice as PW-20 and PW-25. Under Section 313 Cr.P.C., the accused expressed ignorance about the statements of the prosecution witnesses and said that they are innocent and have been falsely implicated. But no defence witness was examined. 6. After providing opportunity of hearing to the parties, the learned trial Court has acquitted the accused/respondents from all the charges. Hence, this acquittal appeal has been filed by the State. 6 7. Mr. Shashank Thakur, learned Deputy Advocate General submits that the learned trail Court has erred by acquitting the respondents from the offence charged by discarding the evidence of prosecution witnesses without there being any strong reason to discard their evidences. The prosecution had examined as many as 26 witnesses and exhibited 21 documents in its support. The learned trial Court has committed error of law in not believing the testimony of the prosecution witnesses and acquitting the accused/respondent only on the basis of minor omission and contradictions. 8. On the other hand, Mr. H.S. Ahluwalia as well as Mr. Amiyakant Tiwari, learned counsel, appearing for the respective accused/ respondents support the impugned judgment passed by the learned trial Court and submitted that the learned trial Court, considering the evidence available of record, has rightly acquitted the accused/respondents and as such, the acquittal appeal filed by the State deserves to be dismissed. 9. We have heard learned counsel appearing for the parties, perused the impugned judgment of acquittal and record of the trial Court. 10. This is an appeal against the judgment of acquittal filed by the State under Section 378(3) 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 7 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. 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 1 AIR 2003 SC 182 2 AIR 2004 SC 1053 3 AIR 1987 SC 1083 8 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:- "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." 4 2022 SCC OnLine SC 984 9 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 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. 5 (2022) 8 SCC 440 10 17. To prove the charges levelled against the accused/respondents, the prosecution has examined as many as 26 witnesses and exhibited 21 documents. 18. The main witness in this case is PW-2, guard Ashok Kumar Soni, from whom the unlawful assembly snatched the key and opened the lock of barrack No. 1, where Shubkaran was confined. The seizure of the day and night duty registers by PW-24, Inspector Nasr Siddiqui, as per Ex.P-6, is confirmed by the statement of PW-12, Arun Kumar Tiwari. The day lockup register, Articles 1C, 2C, and the same, and the night lockup register, Ex.P. 4C and 5C, have been confirmed by guard Ashok Kumar Soni in his Court statement. According to Ex.P-6, his duty in the jail was from 10:00 AM to 2:00 PM. However, guard Ashok Kumar Soni has refused to identify any of the accused and in his police statement and as such, he has been turned hostile without confirming the incident. He stated that a mob of 40-50 prisoners snatched his keys from him. However, he did not confirm that the accused, Raju Khanna, was the one who snatched the keys. Instead, he stated that he had been posted in the jail for only a month, so he could not identify the person who snatched the keys. This witness, who was a government servant while serving as a jail guard, did not corroborate the prosecution's case, and his statement that he could not identify anyone in the crowd or the key snatchers is not credible, as he was not unfamiliar with the prisoners. Therefore, it is conceivable that he may have withheld his true statements due 11 to fear of the accused or prisoners or some other reason. However, a conviction cannot be based solely on this conjecture, as conjecture can never substitute for evidence. However, it can certainly be said that as a guard and a witness at the scene, PW-2. Ashok Kumar Soni neither performed his duties properly nor told the Court the truth. Thus, his statement does not establish that any of the accused were involved in a criminal conspiracy or unlawful assembly. 19. The second important witness is PW-23 Amit Soni, who was imprisoned in barrack No. 1 along with the deceased Shubkaran on the day of the incident has stated that 20-25 other inmates of barrack No.1 entered the jail and started abusing Shubkaran, and when he intervened, he too was manhandled. He was then locked in the criminal cell in the jail room. He learned at around 6:30 pm that Shubkaran had been beaten and thrown into a well, resulting in his death. This witness clearly stated during the main examination that the accused were not among the prisoners who beat Shubkaran. But he has not disclosed who those people were. Although he confirmed the fact that Shubhankar Dwivedi had become popular in the jail after being declared a traitor, he did not confirm the police statement that due to his popularity, he was considered a nuisance by the local prisoners. He also did not confirm the prosecution's suggestion that the accused were among those who assaulted Shubhankar. Thus, Amit Soni, a 12 crucial witness at the scene, also did not testify against the accused. 20. Upon due consideration of the prosecution's case, the assault was also witnessed by jail inmates: PW-4 Sushil Mishra, PW-5 Raju Pandey, PW-6 Arun Sharan Singh, PW-19 Ganesh Kashyap, and PW-21 Samar Vijay Singh Tomar. However, all these witnesses, who were incarcerated at the time, turned hostile and did not support the prosecution's case in their Court statements. Their Court statements do not provide evidence that the accused, or any of them, were part of the illegal group that committed the crime. 21. Based on the above analysis and conclusions, the trial Court has acquitted accused/ respondents of the charges punishable under Sections 147, 302/149, 120-B & 201 of IPC and further also acquitted accused/respondent Nos.1 and 3 from the charges punishable under Section 303/149 of IPC holding that the prosecution has failed to prove its case beyond reasonable doubt 22. 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 08.10.2009. The incident in question pertains to the year 2006, and the petition seeking leave to appeal against acquittal was filed in the year 2010. Subsequently, the appeal was admitted on 30.11.2010. 13 23. Given the fact that more than 19 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. 24. Accordingly, the appeal, being devoid of substance, deserves to be dismissed and is hereby dismissed. 25. 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