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2013 Supreme(Chh) 87
HIGH COURT OF CHHATTISGARH, BILASPUR
Hon'ble Shri Yatindra Singh, C.J. & Hon'ble Shri Pritinker Diwaker, J.
STATE OF M.P. – Appellant
Vs.
DHANESHWAR SONI - Respondent
Criminal Appeal No. 2308 of 1997
Decided on : 7-3-2013
Shri D.K. Gwalre, G.A., for the Appellant/State.
Shri Ravi Bhagat, Advocate, for the Respondent/accused.
Headnote:
Indian Penal Code Sections 302, 457 – Appeal has been preferred against the judgment and order passed by Sessions Judge, Raipur in Sessions Trial acquitting the respondent/accused of the charge – In the case in hand there are two deceased, As per the case of the prosecution, in the intervening night respondent/accused entered the office of M.P.A.K.V.N. for committing theft and found both the deceased who were working there as security guards, sleeping – Further case of the prosecution is that before committing the theft, respondent/accused committed the murder of both the deceased by assaulting with hammer and crowbar and thereby causing injury on their head – It is alleged that respondent/accused failed to commit the offence of theft and when he was running away from the spot, he met SHO of police station, Raipur and some other officers and during interrogation he failed to give satisfactory answer but later on he confessed that he was running after committing the murder –Held, Various expressions; such as, "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 – 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 his acquittal, the presumption of his innocence is further reinforced" reaffirmed and strengthened by the trial court – 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 – Thus findings recorded by the Court below being contrary to the material available on the record are liable to be set aside – Appeal is thus allowed. Judgment impugned is hereby set aside – Accused/appellant is convicted under Section 302 we and sentenced to, imprisonment for life – He be sent to jail forthwith – Appeal Allowed.
1. This appeal has been preferred against the judgment and order dated 6.6.1997 passed by Sessions Judge, Raipur in Sessions Trial No, 52/1996 acquitting the respondent/accused of the charge under Sections 302 and 457 IPC.
2. In the case in hand there are two deceased namely Narendra Singh Thakur and Motilal Gupta, As per the case of the prosecution, in the intervening night of 5/6.10.1995 respondent/accused entered the office of M.P.A.K.V.N. for committing theft and found both the deceased who were working there as security guards, sleeping. Further case of the prosecution is that before committing the theft, respondent/accused committed the murder of both the deceased by assaulting with hammer and crowbar and thereby causing injury on their head. It is alleged that respondent/accused failed to commit the offence of theft and when he was running away from the spot, he met V.K. Pandey (PW-8) - SHO of police station City Kotwali, Raipur and some other officers and during interrogation he failed to give satisfactory answer but later on he confessed that he was running ayvay after committing the murder of Narendra Singh Thakur and Motilal Gupta. On 6.10.1995 at 4.45 a.m. memorandum of respondent/accused Ex. P-1 was recorded and based on that at 4.50 a.m. recovery of two dead bodies was made vide Ex. P-2. At the spot itself Dehati Nalisi Ex. P-18 was recorded at 4.55 a.m. by V.K. Pandey (PW-8) and subsequently registered Dehati Nalisi Ex. P-17 was recorded at 5.05 a.m. by V.K. Pandey (PW-8) himself. Merg intimation Ex. P-19 was recorded at 5.10 a.m. by V.K. Pandey (PW-8) and based on that, two separate FIRs were registered vide Ex. P-23 and P-24 by S.K. Jangde at 5.25 and 5.35 a.m. respectively against the respondent/accused under Section 302 IPC. Other memorandum of respondent/accused was recorded at 6.25 a.m. vide Ex. P3 and based on that, recovery was made vide Ex. P4 at 8 a.m. by which one hammer, crowbar and key bunch were seized at the instance of respondent/accused. Postmortem examination on the dead bodies of the deceased was conducted on 6.10.1995 vide Ex. P-15 and P-16 by Dr. Arvind Nerulwar (PW6) and according to him cause of death was coma due to head injuries. After completion of investigation, charge-sheet was filed on 30.12.1995 under Section 302 IPC.
3. In support of its case the prosecution has examined 08 witnesses. Statement of the respondent/accused was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.
4. By the judgment impugned the Court below has acquitted the respondent/accused of the charges leveled against him. Hence this appeal.
5. Heard counsel for the parties and perused the material available on record.
6. Counsel for the appellant/State submits that present case is based on circumstantial evidence against the respondent/accused and the circumstances are so strong that only one view is possible i.e. conviction. He submits that immediately after murder of the aforesaid two persons, respondent/accused was apprehended by V.K. Pandey (PW-8) and other police officials in suspicious circumstances and this has been proved by Satpal Singh (PW -1), Gajraj Pagaria (PW-3), Suresh Kumar Sharma (PW-5), Ram Krishna Mishra (PW-7) and V.K. Pandey (PW-8). He further submits that other strong circumstance against the respondent/accused is that dead bodies were recovered at his instance and he even identified the same. To substantiate this argument, he placed reliance on the memorandum Ex. P-1 and recovery Ex. P-2. Another circumstance, according to the State counsel is that recovery of blood stained articles like pant of respondent/accused was made under Ex. P-6 and hammer used in the commission of crime and key bunch was made under Ex. P-4. He submits that as per the FSL report Ex. P-31 blood was found on the pant and hammer seized at the instance of the respondent/accused and in his state
