State of M.P. (Now C.G.) Vs Radheshyam and Others

Sunil Kumar Sinha, J.@mdashBeing aggrieved with the judgment of acquittal dated 4.12.1990 passed in Sessions trial No. 50/89 by the First Additional Sessions Judge, Raigarh, the State has filed this appeal with the leave of the Court.

2. By the impugned judgment, the Respondents were acquitted of the charges framed u/s 395 IPC.

3. Respondent No. 7- Dilchand died during the pendency of the appeal. Therefore, the appeal filed against Respondent No. 7 has been dismissed as abated vide order dated 29.6.2009.

4. The facts, briefly stated, are as under--

Complainant- Tarachand Patel (PW-1) was residing in village Usraota. In the intervening night of 31.1.89 & 1.2.89, dacoity was committed in his house. The allegations are that the dacoits entered into his house; they were armed with knife etc.; they caused injuries to Tarachand; and they took the ornaments and cash Rs. 2,500/-. The further allegations are that the dacoits while leaving their house, tied the complainant (PW-1), his wife Kaushaliya Bai (PW-9) and his son Mukesh by ropes. After sometime, any how they became free, then Tarachand went to the house of his nephew, Niyatram and narrated the story to him. In the morning a written report (Ex.-P/l) was lodged by Tarachand (PW-1) in Thana Kotwali, Raigarh, on which, the First Information Report (Ex.-P/2) was registered.

During the course of investigation, the accused/Respondents were taken into custody and their memorandum statements u/s 27 of the Evidence Act were recorded. Memorandum statement of Radheshyam is Ex..-P/20, memorandum statement of Hiradas is Ex.-P/l 9, memorandum statement of Ram Lal is Ex.-P/25, memorandum statement of Johan is Ex.-P/23, memorandum statement of Basant Lal is Ex.-P/27, memorandum statement of Koshal Prasad is Ex.-P/29, memorandum statement of Dilchand is Ex.-P/31, memorandum statement of Pyari is Ex.-P/33, memorandum statement of Ganesh Prasad is Ex.-P/7, memorandum statement of Virendra Kumar is Ex.-P/l 1 and memorandum statement of Murlidhar is Ex.-P/9.

On the above memorandum statements, one pair of silver anklet (pqyal), golden necklace (? ? ), chargeable torch, white coloured foam bag & a knife with button were seized at the instance of Radheshyam vide seizure memo Ex.-P/21. On memorandum statement of Haridas, one pair of silver anklet (payed), golden necklace, torch Eveready with three battery & one bicycle (Avon) were seized vide seizure memo Ex.-P/22. On memorandum statement of Ram Lal, silver belt & one torch with two battery were seized vide seizure memo Ex.-P/26. On memorandum statement of Johan, golden necklace & one bicycle (Atlas) were seized vide seizure memo Ex.-P/24. On memorandum statement of Basant Lal, silver belt & Avon bicycle were seized vide seizure memo Ex.-P/28. On memorandum statement of Koshal Prasad, one pair of golden ear rings was seized vide seizure memo Ex.-P/30. On memorandum of Dilchand, one pair of golden ear rings was seized vide seizure memo Ex.-P/32. On memorandum of Pyari, one golden necklace was seized vide seizure memo Ex.-P/34. On memorandum statement of Ganesh Prasad, one golden chain & one golden necklace were seized vide seizure memo Ex.-P/8. On memorandum statement of Virendra Kumar, golden necklace (? ? ) was seized vide seizure memo Ex.-P/l 2 and on memorandum of Murlidhar, one golden necklace, golden nose-pin & a knife with button were seized vide seizure memo Ex.-

The seized articles were identified by Tarachand (PW-1) and Kaushaliya Bai (PW-9) in the identification proceedings conducted by Naib Tehsildar, Arvind Kumar Dixit (PW-11) on 24.3.89. The identification memo is Ex.-P/4.

Test Identification Parades (T.I. Ps.) were also conducted for identification of the Respondents in District Jail Raigarhon 13.3.89, in which, Tarachand identified six Respondents namely Hiradas, Virendra Kumar, Ganesh Prasad, Murlidhar, Ram Lal & Radheshyam and Kaushaliya Bai identified two Respondents namely Basant Lal and Ganesh. The identification memos are Ex.-P/3 & Ex.-P/36.

After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Raigarh, who in turn committed the matter to the Sessions Court, Raigarh, from where, it was received on transfer by the First Additional Sessions Judge, Raigarh, who conducted the trial and acquitted the Respondents/accused by the impugned judgment dated 4.12.90.

5. The learned Sessions Court did not rely on the evidence of identification of the Respondents and also that the articles were seized at the instances of the Respondents. Therefore, the Respondents were acquitted of the charges framed against them.

6. Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State/Appellant, argued that it was established by the evidence led by the prosecution that the Respondents committed dacoity in the house of the complainant in the intervening night of 31.1.89 & 1.2.89; six of them were duly identified in T.I.P.; the above ornaments were seized on the discoveries made by the Respondents; and they were duly identified by the complainant and his wife, therefore, the learned Sessions Judge erred in law in passing the judgment of acquittal.

7. Mr. S.R.J. Jaiswal, Mr. Rajendra Tripathi & Mr. Ashish Gupta, learned Counsel appearing on behalf of the respective Respondents, opposed these arguments and supported the judgment passed by the Sessions Court.

8. We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case.

9. According to Tarachand Patel (PW-1), there was no light (electric supply) in their house on the fateful night. The dacoits were holding torches with them. He could see the faces of the dacoits in their torch lights. He deposed that all, dacoits were wearing pant & shirt. The learned Sessions Judge observed that Tarachand did not mention in the F.I.R. (Ex.-P/l) that the dacoits were holding the torches. He also did not mention their whereabouts. In the court evidence, he deposed that the dacoits were holding knifes, whereas, in the F.I.R. (Ex.-P/l), he mentioned that one of the dacoit was holding a pipe and some of them were holding knifes. The Sessions Judge further observed that Tarachand did not mention in the F.I.R. about the altercation, which according to him, took place between the dacoits and this witness. According to Tarachand his son untied them from the ropes but the son has not been examined by the prosecution. Even the persons whom Tarachand immediately disclosed about commission of dacoity in his house i.e. his nephew- Niyatram and neighbours Laxman & Narendra and chowkidar-Chandlal, none of them were examined by the prosecution. It is on this account, oral evidence of Tarachand (PW-1) regarding involvement of the Respondents has been disbelieved. The Sessions Judge has taken the view that when there was no light in the house of the complainant, it was not possible for him to identify the dacoits in the torch light of the dacoits. We find that it was not the case of the prosecution that the dacoits were holding torches and they used them in such a manner that it threw lights on their faces, so that, it was sufficient for inmates of the house to identify them in the dark-night. Normally the persons committing dacoity would not throw the torch light on the faces of each other so that they may be identified by the victims. Therefore, the view taken by the Sessions Judge that it was not possible for the victims to identify the dacoits in a dark-night in the light of the torches used by the dacoits when there was no other light in the house, appears to be reasonable.

10. In this matter, Respondents 1 to 8 were arrested on 12.2.89, Respondent No. 9 was arrested on 21.2.89 and Respondents 10& 11 were arrested on 24.2.89. The Test Identification Parade was conducted on 13.3.89. It comes in Para-19 of the judgment that firstly the date for conducting T.I.P. was fixed on 9.3.89, but on some reason it was not conducted on the said date and the same was conducted on 13.3.89. The Respondents were remanded by the concerned Court on 25.2.89 for their production on 11.3.89 but it does not come in the evidence that they were produced baparda (with closed faces). The Sessions Court has held that the above incident of not conducting the T.I.P. on 9.3.89 in the above facts and circumstances of the case, creates a doubt on the identification which took place on 13.3.89.

11. The Sessions Judge further observed that in T.I.P. conducted through Kaushaliya Bai (PW-9), she had rightly identified the two Respondents, Basant Lal & Ganesh Prasad, and she also identified Manglu, Dinesh, Matte, Jasvinder and Abdul Sattar, who were just mixed with the Respondents and were not the accused persons of the case. Therefore, there were material discrepancies in the evidence of Kaushaliya Bai (PW-9). Apart from the above, the Sessions Judge also observed that though the Executive Magistrate, who conducted the T.I.P. was examined, but independent witnesses of the T.I.P. were not examined. The Sessions Judge further observed that when most of the accused persons were arrested on 12.2.89 and their remands were being taken, the delay, in light of the above facts and circumstances, in conducting the T.I.P. was fatal to the prosecution. It is on these grounds, the evidence of identification of the Respondents has been disbelieved by the Sessions Court.

12. So far as discovery memos are concerned, out of 2 common witnesses for such discoveries, only Bhujbal Prasad Yadav (PW-10) has been examined. The Sessions Judge did not rely on the testimony of this witness for the discoveries made by the accused persons/Respondents. We note that there is no signatures of the Respondents in their discovery memos prepared by the Investigating Officer u/s 27 of the Evidence Act. In Jackaran Singh Vs. State of Punjab, the Supreme Court held that "The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement". Therefore, in view of the cogent reasons given by the Sessions Judge for disbelieving the testimony of Bhuj bal Prasad Yadav (PW-10) and also in view of the fact that none of the discovery memos bear the signatures/thumb impressions of the Respondents, the reliability of the said memos become doubtful. It is in these facts and circumstances, the Sessions Judge held that it was not established beyond all reasonable doubts that the ornaments seized by the police were, in fact, seized at the instances of the respective Respondents as per their disclosure statements. Therefore, in view of the above facts and circumstances of the case, identification of the articles cannot be attributed to the Respondents.

13. In Budh Singh and Others Vs. State of U.P., the Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with ajudgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court.

14. In V.N. Ratheesh Vs. State of Kerala, the Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and Ors. v. State of Madhva Pradesh 2002 (2) Supreme 567 It was further held that the principle to be followed by Appellate Court considering the appeal against the 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.

15. In Ramesh Babulal Doshi Vs. State of Gujarat, the Supreme Court said that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions".

16. We have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Judge were perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. The Sessions Judge has considered the entire evidence led before it and has taken a view, which appear to be one of the possible views which can be taken by a court of law while appreciating the evidence led before it.

17. For the foregoing reasons, we do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed.