Sikku @ Madhav vs State Of Madhya Pradesh

These two appeal Cr.A. No. 65/1995 and Cr.A. No. 1971/2001 have been filed against a common judgment dated 14/11/1994 passed in Sessions Trial

No. 115/1992.

Criminal Appeal No. 65/1995 has been filed by appellantSikku @ Madhav who has been convicted by the trial court for commission of offence of

murder. Criminal Appeal No. 1971/2001 has been filed by the State. Initially seven accused persons were prosecuted for commission of offence. The

trial court convicted appellant- Sikku and acquitted other accused persons. State has filed appeal against acquittal of six accused persons. During

pendency of appeal accused Prakash Yadav who is respondent in the State appeal has been died, the appeal filed by him is abated on account of his

death.

Prosecution story in brief is that on 03/06/1991 deceased Sabbir along with Fulle @ Gudda Chourasia and Harprasad had gone to attend function of

lagun. They were talking to each other. At that time accused Sikku armed with sword, Raju with Ballam, Prakash with lathi, Ganesh armed with

Khukhari and Asgar with small knife came there. They had beaten them. Sikku inflicted a blow of sword on the head of Sabbir. Ganesh inflicted a

blow of Khukhri on his stomach Raju, Prakash and Asgar had also beaten them. Prakash had inflicted a blow at Gudda Chourasia thereafter they ran

away from the spot. Deceased Sabbir was taken to the hospital. Fulle @ Gudda Chourasia lodged report at the police station Damoh. Deceased was

referred to medical college where he was died. Police conducted investigation and filed charge-sheet. During trial appellants abjured their guilt. The

trial court acquitted six accused persons except accused Sikku Patel. Accused Sikku Patel has been convicted for commission of offence of murder

and awarded sentence of life.

Learned counsel appearing on behalf of the appellant Sikku has submitted that the evidence of PW/4 who is an injured eye witness is not sufficient

to hold the appellant guilty beyond reasonable doubt. It has further been submitted by learned counsel for the appellant that the trial court has

committed an error in placing reliance on the dying declaration of the deceased because Naib Tehsildar who recorded the dying declaration was not

examined and the police recorded the dying declaration of the deceased which is in the shape of statement under Section 161 of Cr.P.C. is not

reliable.

Learned counsel for the State has submitted that eye witness deposed clearly about the presence of accused persons. Their names have been

mentioned in the FIR. The deceased in his dying declaration stated about participation of all the accused persons, hence, the trial court has committed

an error in acquitting the accused persons.

Learned counsel appearing on behalf of the respondents in the State appeal has submitted that the trial court has appreciated evidence properly.

There is proper marshaling of evidence by the trial court. There is no illegality or perversity in the findings recorded by the trial court, hence, the

appeal filed by the State is liable to be dismissed. In support of her contentions learned counsel relied on the judgment of Hon’ble Apex Court in

the case of V. Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga (2016) 12 SCC 150.

PW/4 Fulle @ Gudda Chourasiya is an injured eye witness. Other witnesses did not specifically narrate the story. PW/3 deposed that function of

lagun was going on and there was quarrel in the function. Sabbir was injured, I cannot say. He was declared hostile. PW/5 also declared hostile. He

completely denied the fact that he had seen the incident. PW/6 deposed that there was quarrel between Sabbir and accused persons. Except this he

denied all the facts. PW/7 deposed that I was present in the function of lagun at the residence of Ramkishan. All the accused persons had beaten

Sabbir and Gudda who was present before the court thereafter, he did not describe any particular act of the accused persons. PW/8 also declared

hostile.

The evidence remains to be examined is the evidence of PW/4 and dying declaration of deceased Ex. P/4 recorded by the Naib Tehsildar. Naib

Tehsildar has not been examined by the prosecution. Hence, the dying declaration is not proved. In such circumstances, dying declaration recorded by

the Naib Tehsildar could not be considered. There is another evidence of statement recorded under Section 161 of Cr.P.C. of the deceased Ex. P/32

which was recorded by I.O. PW/13. We would like to examine the evidence of PW/4 and dying declaration Ex. P/32 statement of the deceased under

Section 161 of Cr.P.C.

Hon’ble Apex Court in the case of V. Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga (2016) 12 SCC 150 has held as under in

regard to principles required by the appellate court in the case of appeal against acquittal:-

“22. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds

on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is

possible. Merely because the appellate court on re- appreciation and reevaluation of the evidence is inclined to take a different view, interference with

the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K.

Narasimhachary (2005) 8 SCC 364, this Court reiterated the well settled principle that if two views are possible, the appellate court should not

interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused,

the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N. (2006) 1

SCC 401.

In Muralidhar alias Gidda and Anr. v. State of Karnataka (2014) 5 SCC 730, this Court noted the principles which are required to be followed by

the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:""12. The approach of the appellate court in the

appeal against acquittal has been dealt with by this Court in Tulsiram Kanu AIR 1954 SC 1, Madan Mohan Singh AIR 1954 SC 637, Atley AIR 1955

SC 807, Aher Raja Khima AIR 1956 SC 217, Balbir Singh AIR 1957 SC 216, M.G. Agarwal AIR 1963 SC 200, Noor Khan AIR 1964 SC 286, Khedu

Mohton (1970) 2 SCC 450, Shivaji Sahabrao Bobade (1973) 2 SCC 793, Lekha Yadav (1973) 2 SCC 424, Khem Karan (1974) 4 SCC 603, Bishan

Singh (1974) 3 SCC 288, Umedbhai Jadavbhai (1978) 1 SCC 228, K. Gopal Reddy (1979) 1 SCC 355, Tota Singh (1987) 2 SCC 529, Ram Kumar

(1995) Supp 1 SCC 248, Madan Lal (1997) 7 SCC 677, Sambasivan (1998) 5 SCC 412, Bhagwan Singh (2002) 4 SCC 85, Harijana Thirupala (2002) 6

SCC 470, C. Antony (2003) 1 SCC 1, K. Gopalakrishna (2005) 9 SCC 291, Sanjay Thakran (2007) 3 SCC 755 and Chandrappa (2007) 4 SCC 415. It

is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal,

the appellate court must bear in mind the following:

(i) There is presumption of innocence in favourof an accused person and such presumption is strengthened by the order of acquittal passed in his

favour by the trial court;

(ii) The accused person is entitled to the benefitof reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court inconsidering the appeals against acquittal are as extensive as its powers in appeals against convictions

but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of

seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the

judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if

such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with

such conclusions is fully justified; and

(iv) Merely because the appellate court onreappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the

judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in

the interference by the appellate court in the judgment of the trial court.â€​

It is not necessary to consider other judgments on the point because the Hon’ble Apex court has considered number of judgments on this aspect.

The principle of law is that if the findings recorded by the trial court do not suffer from any illegality or perversity and the grounds on which the

trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible.

Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the

judgment of acquittal is not justified if the view taken by the trial court is a possible view.

PW/4 Gudda @ Fullu Chourasiya is injured eye witness. He deposed that four years before there was a quarrel with Ganesh and he had inflicted

a blow of sword on me. On the date of incident I was present in the function of lagun along with deceased Sabbir bhaiya. At around 11 O’clock

Sikku Patel Ganesh Patel Prakash Yadav, Ravi, Rammu Patel Raju, Asgar came there. Asgar had a knife in his hand, Sikku Patel Ballam Ganesh

Talwar, Raju Thakur Ballam, Prakash Yadav Knife Rammu Patel Lathi and Ravi Raikwar was armed with lathi. Sikku Patel inflicted a blow of

ballam on my left side thereafter he had inflicted a blow on the stomach of the deceased Sabbir by ballam . Ganesh Patel inflicted a blow by sword at

Sabbir. Rammu also inflicted a blow of lathi at Sabbir. Raju did not commit any act and thereafter I ran away to adjacent room and came out from the

house. I had taken the deceased Sabbir to police station and lodged report which is Ex. P/29. I signed the same. Police sent me and deceased to the

hospital. Sabbir was admitted in the hospital. He was referred to medical college and thereafter he was died. Police prepared spot map Ex. P/24, I

signed the same. Shirt was seized from me vide seizure memo Ex. P/18. In his cross examination he admitted that in the report lodged by me which is

Ex. P/29 I did not mention the names of Rammu and Ravi. He further admitted that Raju was present, however he did not participate in the quarrel.

The same witness lodged FIR at 23.40 immediately after half an hours of the incident. In the aforesaid FIR it is stated that Ganesh Patel was

armed with Khukhri and he had inflicted a blow at the stomach by Khukhari. Names of accused Ravi and Rammu were not mentioned in the FIR.

Deceased in his 161 statement Ex. P/32 recorded by I.O. PW/13 stated that I was present in the Lagun alongwith Gudda and other persons. We

were talking to each other. At that time 8 to 10 persons Sikku Patel armed with sword, Raju Ballam, Ganesh Patel with Khukhri, Prakash Yadav with

lathi, Asgar with knife and other persons were armed with lathis came there. They had beaten me. Sikku Patel inflicted a blow of sword on my head

and at my stomach, other accused persons had also beaten me by knife and lathis. Thereafter they ran away from the spot.

From the possession of Sikku Patel a sword was seized vide seizure memo Ex. P/20 and from Ganesh a Farsa was seized vide seizure memo Ex.

P/21. The trial court discussed the evidence in para 44 and 45 of the judgment. It is observed by the trial court that the statement of the deceased

recorded under Section 161 of Cr.P.c. and the statement of Gudda PW/4 are inconsistent. It is further observed by the trial court that deceased did

not mention in his dying declaration that whether Ganesh had inflicted injuries. He further mentioned that Prakash had inflicted injuries on the back

side of Gudda. Because accused Prakash Yadav has been died, hence, it is not necessary to consider the evidence against him. The trial court further

observed that there is no concrete evidence against Ganesh Patel. The trial court further observed that from the evidence, presence of Rammu, Ravi,

Raju, and Asgar has not been established and presence of Ganesh Patel and Prakash Yadav is suspicious, thereafter, the trial court acquitted the

aforesaid accused persons. Names of Ravi and Rammu have not been mentioned by PW/4 in the FIR. There is no act mentioned of Asgar and Raju

 by PW/4. It is mentioned by PW/4 that Ganesh was armed with sword or Khukhari. The deceased in his statement under Section 161 mentioned

that Ganesh was armed with Farsa. Farsa was seized from Ganesh, hence, there is major contradictions in regard to Ganesh in the dying declaration

of the deceased and the statement of PW/4 recorded before the trial court.

In view of the principle of law laid down by the Apex Court, in our opinion, acquittal of the six accused persons by the trial court is proper.

In regard to appellant-Sikku, PW/4 specifically deposed that he had inflicted a blow of Ballam or sword and in the dying declaration, it is mentioned

that Sikku was armed with sword. He had inflicted a blow on the head and stomach of the deceased. This fact has been proved from the evidence of

doctor PW/14 who performed postmortem of the deceased. He deposed that there was incised wound on the head and penitrating wound on the chest

and there were abrasions. Another doctor PW/1 who had examined the deceased soon before the incident deposed that I noticed following injuries on

the person of the body of the deceased. One incised wound right eyebro 1x2x4’ on right side. On incised wound 3â€x1â€x3†on the parietal

bone. One incised wound 1/2â€X1â€x3†left side of chest and abrasions. A sword was seized from the appellant Sikku and as per FSL report blood

was found on the aforesaid sword.

In this view of the matter, in our opinion, the trial court has rightly convicted the appellant-Sikku for commission of offence of murder and awarded

a proper sentence.

Consequently, appeal filed by the State Cr.A. No. 1971/2001 is hereby dismissed. The appeal filed by appellant-Sikku Cr. A. No. 65/1995 is also

dismissed. The appellant is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the trial court to undergo remaining part of

jail sentence.

Copy of this judgment be sent to trial court for necessary action.