Ramesh Sinha, CJ
1. Challenge in this appeal is to the order dated 11.04.2013 passed by the Special Sessions Judge, Janjgir-Champa in Special Sessions Trial No. 92/2012 whereby the respondents/accused have been acquitted of the charges under Sections 354, 302/34 of the Indian Penal Code and Section 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, the Act of 1989).
2. Case of the prosecution, in brief is that on 23.01.2012, at about 4:00 p.m., the deceased, who was a minor aged about 13 years, had gone on her bi-cycle to fetch tomatoes from the fields (Badi) but did not come back. After one hour, her sister Sheet Kumari (PW-3) went out in search of the deceased. She found that the bi-cycle was lying near the gate of the Badi and in a polythene bag, the plucked tomatoes were kept. When she could not found the deceased, she raised an alarm by shouting her name. At that time, she saw that in the adjacent Badi of Pitamar Yadav, both the accused were leaning on somebody. On hearing the hue and cry of Sheet Kumari, both the accused ran away. She returned back on the bi-cycle and on the way, she met her brother Ganesh and informed the entire incident and after reaching home, she informed her father also. After some time, Ganesh came home and informed that the dead body of the deceased was lying in the water of Shanichara Dam when all of them reached the spot and saw the dead body.
3. The brother of the deceased Ganesh Kumar Suman (PW-10) lodged the first information report (for short, the FIR) (Exhibit P/29) on 24.01.2012 at about 18:30 hours which was registered at Police Station, Baloda, as Crime No. 0/2012 for the offence punishable under Section 302, 354, 34 of the IPC as well as Section 3(2)(v) of the Act of 1989 against the respondents/accused. The said FIR was registered on the basis of merg intimation (Exhibit P/26) bearing No. 6/2012 which was registered on 23.01.2012 at about 19:30 hours on the basis of information given by Ganesh Kumar Suman (PW-10) i.e. the brother of the deceased. Later on, the Police of Police Station AJK, Janjgir registered a numbered FIR bearing Crime No. 7/2012 on 25.01.2012 at about 13:20 hours.
4. After investigating the matter, the police submitted the police report on 19.04.2012 alongwith charge-sheet against the respondent/accused under the aforementioned Sections of the IPC and the Act of 1989 which was registered as Criminal Case No. 300/2012 in the Court of Chief Judicial Magistrate, Janjgir and the same was committed to the Court of Sessions vide order dated 04.05.2012 and it was registered as Special Sessions Trial No. 92/2012.
5. The learned Special Sessions Judge, framed charges against the respondents/accused on 18.05.2012 charging them for the offence punishable under Sections 354, 302 read with Section 34 and Section 3(1)(xi) and Section 3(2)(v) of the Act of 1989. The respondents/ accused denied the charges and prayed for trial.
6. Amongst others, the prosecution has exhibited the following documents in support of its case:
· Search Panchnama (Exhibit P/1)
· Spot Panchnama (Exhibit P/2)
· Property Seizure Memo (Exhibit P/3 to P/6)
· Arrest/Court Surrender Memo (Exhibit P/7 and P/8)
· Summons under Section 175 Cr.P.C. (Exhibit P/9)
· Inquest Report (Exhibit P/10)
· Nazri Naksha (Exhibit P/11)
· Application for postmortem (Exhibit P/12)
· Crime Details Form (Exhibit P/13)
· Application for MLC Report (Exhibit P/14 and P/15)
· Information of Arrest (Exhibit P/16)
· Information of Arrest (Exhibit P/17)
· Memo for FSL report (Exhibit P/18 and P/19)
· Receipt of Exhibits (Exhibit P/20 and P/21)
· Postmortem report (Exhibit P/22)
· MLC report (Exhibit P/23)
· Application for query report and query report (Exhibit P/23 and P/24)
· Property seizure memo (Exhibit P/25)
· Merg Intimation (Exhibit P/26)
· Dead body Supurdnama (Exhibit P/27)
· Copy of Caste certificate (Exhibit P/28)
· Unnumbered FIR (Exhibit P/29)
· Numbered FIR (Exhibit P/30) Receipt (Exhibit P/31)
7. In order to bring home the offence, prosecution examined as many as 17 witnesses namely:
Shyamlal (PW-1): This witness was acquainted with the respondent/accused and was present at the time of Search Panchnama (Exhibit P/1) and is also witness to Spot Panchnama (Exhibit P/2). He is also the witness to seizure Panhnama (Exhibit P/3 to P/6) and the arrest memo (Exhibit P/7 and P/8). He was declared hostile. In the cross-examination, he states that police had seized tomatoes as per Exhibit P/3. He has denied that the police had seized one bi-cycle, empty bottles of liquor or the sample of water. He also denied that caste certificate was seized in his presence, however, he had signed the Panchnama (Exhibit P/6). He had seen the dead body in the morning.
Dilesh Kumar Suman (PW-2): He is the brother of the deceased and he knew the respondents/accused. He is the witness to seizure memorandum in respect of tomatoes (Exhibit P/3), empty country made liquor bottle and beer bottle (Exhibit P/5), Search Panchnama (Exhibit P/1).
Sheet Kumari Suman (PW-3): As this witness was minor, the Court had asked few questions to ascertain as to whether she could understand the questions and answer it properly and after being satisfied, this witness was allowed to give her deposition. She states that the deceased was her younger sister. She states that the deceased had gone to the Badi near the Sanichari Dam for collecting tomatoes. When she did not return back after one hour, she went to the Badi at about 5 p.m. on her bi-cycle where she saw that the bi-cycle of the deceased was lying there. She entered the Badi where she saw that in a bag, tomatoes were kept. When she called the name of the deceased and started searching for her, she saw that both the accused had immersed the deceased inside the water under the Babool tree and the clothes of the deceased was floating on the surface. On watching this scene, she started crying and seeing this, both the accused ran away. She came to her house and on the way she met her brother Ganesh, however, she did not inform him anything about the incident and only after reaching her house, she informed the incident to her father, grand mother and other people that the accused had killed her sister by immersing her under the water. She further states that both the accused had eve teased her on earlier occasion. In cross-examination, she stated that police had asked questions to her on two occasions. She also states that she had seen the accused eve teasing the deceased, however, she cannot tell the reason as to why the same was not written in her police statement (Exhibit D/1).
Faguram Gond (PW-4): This witness's Badi is situated near the Badi of the father of the deceased and the Badi of accused-Sahdev @ Lalu was also near to it. He had not gone to the spot where the deceased was murdered but he was at the house of the deceased. He had also stated that he came to know that the people of Bhainstara village had asked the accused Lalu not to eve tease the girls.
Jogiram (PW-5): He is the witness to the inquest report (Exhibit P/10), spot map Exhibit P/11, and Talashi Panchnama (Exhibit P/1).
R.K.Shukla (PW-6): He is the Investigating Officer who had investigated the entire case.
Dr. Santosh Modi (PW-7): He is the Doctor who had conducted postmortem of the deceased. He had also conducted the MLC of the accused persons. He had opined that the death could have been caused because of syncopic heart attack.
Sukhdev Satnami (PW-8): He is the witness to Exhibit P/6.
Joseph Kujur (PW-9): He is the constable who had presented the parts of the body given after the post mortem in a sealed container, containing liquid from the stomach, nails, underwear of the deceased, slides prepared from the private part of the deceased, before the Police Station which is Exhibit P/25.
Ganesh Kumar Suman (PW-10): He is the brother of the deceased. He stated that while he was going to take the booking amount of the vehicle, he met her sister Sheet Kumari (PW-3) who was crying and did not inform anything to her on the way. After returning home, she informed that the accused had killed the deceased and thrown near a tree. He had given the merg intimation (Exhibit P/26) to the police. In his presence, the police had prepared the spot map (Exhibit P/13). In the cross examination, he had denied that her sister died because of heart attack.
Daroga Satnami (PW-11): He is the father of the deceased. He states that her daughter was aged about 13 years. He also stated that the accused used to eve tease the girls going on the way upon which they were warned. He had no enmity with the accused for the last two years. He had narrated the entire sequence of events how her another daughter Sheet Kumari told him that the accused had throttled the deceased.
S.S.Dubey (PW-12): He is the Tahsildar who had issued the caste certificate of the deceased (Exhibit P/28).
P.S.Markam (PW-13): He is the Sub Inspector of Police, who had recorded the merg intimation (Exhibit P/26).
Sitaram Patel (PW-14): He is the witness to the inquest report (Exhibit P/10), spot map prepared by the Patwari (Exhibit P/11). He is also witness to the Talashi Panchnama (Exhibit P/1), seizure of sample of water (Exhibit P/4). However, he had denied that police had ever seized beer and liquor bottles (Exhibit P/5).
Yash Karan Deep Dhruw (PW-15): He is the Inspector who was posted at AJK Thana, Janjgir and had registered the numbered FIR (Exhibit P/30) after receiving the unnumbered FIR (Exhibit P/29).
Manhari Prasad Patle (PW-16): He is the Patwari who had prepared the spot map (Exhibit P/11) and spot panchnama (Exhibit P/2).
Ramesh Pandey (PW-17): He was posted as Deputy Superintendent of Police at Janjgir. He had seized the parts of the body after postmortem and prepared Exhibit P/25 property seizure memo. He had sent a query (Exhibit P/23) to the Medical Officer. He had seized the caste certificate of the deceased (Exhibit P/6). He had also recorded the statements of Daroga Prasad, Ganesh Kumar, Sheel Kumari, Firti Bai, Faguram, Gendbai as was stated by them.
8. The statement of the respondents/accused under section 313 CrPC s recorded on 15.03.2012. They stated that they were innocent and have been falsely implicated in this case. In their defence, they got the statements of Sheet Kumari Suman (PW-2) and Daroga Satnami (PW-11) exhibited as Exhibit D/1 and D/2, respectively.
9. The learned Special Sessions Judge, Janjgir, after considering the evidence on record, acquitted the respondents/accused of the charges, and directed to be released if not required in any other case. Hence, the present appeal by the appellant/State.
10. The said acquittal order was challenged by the State/appellant by filing Cr.M.P. No. 725/2013 seeking leave to appeal, on 02.08.2013. On 04.10.2013, notices were issued to the accused/respondents and on 10.07.2017, the record of the Court below as called and the matter was directed to be listed after five weeks and on 28.08.2017, the application filed under Section 378(3) of the Cr.P.C. seeking leave to appeal was allowed and the Registry was directed to register the case as a regular acquittal appeal and accordingly, the present acquittal appeal came to be registered. The matter was further directed to be listed in due course. Again, the matter came up for hearing on 06.10.2023 when the matter was adjourned to 10.10.2023 and on the said date, again for a period of four weeks. Ultimately, the acquittal appeal was heard finally on 04.12.2023.
11. Mr. Avinash K. Mishra, learned counsel for the State/appellant submits that thought he scope of interference with the order of acquittal is very limited, however, this Court is vested with wide powers of re-appreciation of the evidence. The learned Trial Court has erred by acquitting the respondents of the charges. The learned Court below has recorded contradictory findings with regard to the nature of death of the deceased. At paragraph 10, it has been held that the deceased has died other than under normal circumstances, wherein at paragraph 26 of the judgment, it has held that the death of the deceased was natural which, at the face of it is erroneous. The evidence of the sole eye-witness of the incident i.e. Sheet Kumari (PW-3) has not been considered in its true perspective. Only on the ground that similar statements were given by Sheet Kumari (PW-3), Ganesh Kumar (PW-10) and Daroga Prasad (PW-11), their evidence have been discarded. Merely because the name of the respondents did not found place in the merg intimation (Exhibit P/26), the same has also not been given proper weightage. It is a case where a minor girl has been done to death and they may not be allowed to escape from the clutches of law on account of acquittal by the learned trial Court on erroneous reasons, when there is an eye witness and all the circumstances indicate that the respondents/accused are the perpetrator of the crime in question.
12. On the other hand, Mr. Ravindra Sharma, learned counsel for the respondents/accused submits that the learned Court below has not committed any error by acquitting the respondents. In absence of cogent evidence and corroborating materials on record, the prosecution story falls flat and the respondents deserved acquittal as has been done by the learned Trial Court and the same does not warrant any interference by this Hon'ble Court.
13. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
14. The deceased was a minor girl aged about 13-14 years which is not in dispute. She was hail and hearty and no one has stated that she was physically unfit or ill. As per the prosecution witnesses, the deceased had gone to collect tomatoes on her bi-cycle and she was able to ride bi-cycle and go by herself to the field, which was about 2 KM away from their house. The Doctor (PW-7), in the post-mortem report (Exhibit P/22), has observed that the deceased was average built, there was neither any injuries nor any sign of bleeding, her private parts were normal. No water was found in the lungs. He had opined that the cause of death was syncopic heart attack which could have been caused because of fear. He further stated that if any girl is subjected to eve teasing/harassment, she can die because of heart attack.
15. The eye-witness Sheet Kumari Suman (PW-3) has deposed that when she reached the Badi, she found the bi-cycle of the deceased lying there. She also found the tomatoes collected in a bag. When she started calling the name of the deceased, she saw both the accused had caught hold of the deceased and she was immersed in the water and the clothes of the deceased was floating on the surface. As soon as the accused saw this witness, they ran away. This incident was narrated by her to her father. She had also stated that these accused had eve teased her also on earlier occasion.
16. Other than the eye-witness Sheet Kumari Suman (PW-3), the act of eve teasing to other girls of the village by the accused persons has been narrated by the prosecution witnesses namely Ganesh Kumar Suman (PW-10), Daroga Satnami (PW-11) which indicates that the accused were in a habit of eve teasing the girls.
17. The Doctor (PW-7) has also examined the accused persons and in his deposition, he has stated that so far as accused Sahdev is concerned, he found scratch marks on the right side of his face which were 3-4 c.m. long. He also found linear abarasion on the neck of Sahdev. So far as other accused Laxmi Prasad is concerned, he did not find any injuries on his body. Further, in the postmortem, no injuries were found on the body of the deceased nor there was any sign of sexual assault. However, as per the deposition of the Doctor, the deceased died out of syncopic heart attack which could be caused because of sudden fear or threat. No fluid was found in the lungs of the deceased which suggest that the deceased did not die because of drowning or throttling. But one thing is to be kept in mind that the threat which was sustained by the deceased was not because of any natural act but was because of the act of eve-teasing being done by the respondents, though there is no direct evidence with regard to the same. However, as the villagers had earlier warned the respondents not to indulge in such activities of eve teasing, coupled with the fact that the witness Sheet Kumari Suman (PW-3) has has clearly deposed that she had seen that both the respondents had immersed the sister inside the water and her clothes were floating on the surface of the water.
18. From the above facts and circumstances, it is evident that the deceased died as she sustained syncopic heart attack which was a result of the eve teasing being done to her by the respondents. The chain of circumstances lead to the only conclusion that as the respondents/accused persons tried to outrage the modesty of the deceased, out of fear, she sustained such fatal heart attack that she died on the spot. The accused Sahdev @ Lalu Yadav has not explained the scratch marks and abarasion marks on the face and neck as to how and when he received those marks. Further, the act of the accused persons who ran away as soon as the witness Sheet Kumari (PW-3) came in search of her sister i.e. the deceased, raises suspicion as to why they would try to run away if they had not committed any crime.
19. It is also a fact that no injury marks were found on the body of the deceased which may indicate that the deceased and the accused had any kind of scuffle.
20. This is appeal against the judgment of acquittal filed by the State under Section 378(1) 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.
21. The Supreme Court in the matter of C. Antony v. Raghavan Nair AIR 2003 SC 182 has held that 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.
22. The Supreme Court in the matter of Ramanand Yadav v. Prabhunath Jha AIR 2004 SC 1053 has held that 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.
23. The scope of interference in appeals against acquittal is well settled. In the matter of Tota Singh and another v. State of Punjab AIR 1987 SC 1083, 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.”
24. 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.
25. In the opinion of this Court, the learned trial Court has erred by acquitting the respondents/accused of the charge under Section 302 and 354 of the IPC and Section 3(1)(xi) and 3(2)(v) of the Act of 1989. The respondents/accused as well as the deceased were resident of same village and by no stretch of imagination can it be said that the respondents did not knew as to which caste the deceased belonged, as such, the respondents/accused are liable to be punished under the Act of 1989 also as they had tried to outrage the modesty of a minor girl.
26. Even if the name of the accused did not find place in the merg intimation (Exhibit P/), that cannot vitiate the entire investigation and the deposition made by the witnesses are sufficient to hold the accused guilty of the crime.
27. In the light of aforesaid dictum and proposition of law, we have examined the evidence adduced on behalf of the prosecution. The deposition of the witness Sheet Kumari (PW-3) who is the real sister of the deceased, is clear and unambiguous that she had seen the respondents/accused immersing the deceased under the water. The other circumstances as discussed above also lead to the only conclusion that it was the accused/respondents who had tried to outrage the modesty of the victim and because of fear, she sustained syncopic heart attack. In his statement under Section 313 Cr.P.C also, the accused-Sahdev @ Lalu Yadav has not given any explanation as to how he received the injuries on his face and neck.
28. When on the one hand, the learned trial Court at paragraph 10 of its judgment, has been held that the deceased has died other than under normal circumstances, wherein at paragraph 26 of the judgment, it has held that the death of the deceased was natural which, at the face of it is erroneous. If a person dies of heart attack which can be a result of his/her physical condition or other chronic ailments, it can be said to be a natural death. But when a hail and hearty person is subjected to sudden shock and threat and he/she dies, it cannot be said to be a natural death. In the case in hand, the deceased rode her bi-cycle and went to her fields to collect tomatoes, which was at a distance of 2 KMs. If the deceased could do so much of work by herself, it is suggestive of the fact that she was in a good state of health. However, she was a minor girl aged about 13-14 years and she was subjected to molestation and eve teasing by the respondents/accused who are grown up boys aged about 29 years and 20 years, respectively. Out of the threat and fear of being molested, she sustained syncopic heart attack. It cannot be presumed that the respondents were not having any intention either to cause murder of the deceased as after sustaining heart attack by the deceased, the respondents have been seen immersing the body of the deceased under the water of the dam which was nothing but an act to hide their crime. Though the deceased must have died out of syncopic heart attack, but the conduct of the respondents/accused is such that they intended to cause murder to conceal their act of molestation, which has been clearly explained by the witness Sheet Kumari (PW-3).
29. Evidence adduced on behalf of the prosecution is sufficient for arriving at a finding that respondents/accused had tried to outrage the modesty of the victim and because of threat and fear, she died. As such, the impugned judgment relating to acquittal of respondents is clearly unreasonable and and bad in law. By acquitting respondents, the trial Court has committed manifest illegality resulting into injustice. Therefore, as held by the Supreme Court in C. Antony, Ramanand Yadav and Tota Singh (supra), interference is called to cause justice.
30. Consequently, the acquittal appeal is allowed. Acquittal of respondents Sahdev @ Lalu Yadav and Laxmi Prasad @ Gulgul Yadav by the trial Court is hereby set aside. They are convicted for the offence punishable under Section 302 read with Section 34 of the IPC and sentenced to rigorous imprisonment for life, under Section 354 of the IPC and sentenced to undergo rigorous imprisonment for five years, under Section 3(1)(xi) of the Act of 1989 and sentenced to rigorous imprisonment for six months with fine of Rs. 1000/- each, under Section 3(2)(v) of the Act of 1989 and sentenced to rigorous imprisonment for life with fine of Rs. 1000/- each. In default of payment of fine, they shall be liable to undergo further imprisonment for six months. All the sentences shall run concurrently.
31. The respondents/accused are directed to surrender forthwith before the concerned trial Court for serving the sentences as awarded by this Court failing which they shall be taken into custody by the trial Court.
32. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
