State Of M.P. vs Raju

The State has filed Criminal Appeal No.301/2002 against accused-Raju and Criminal Appeal No.2181/2003 against accused Jhabbu and others. Both

appeals arise out of the judgments dated 19.07.2001 and 18.10.2001 passed by the First Additional Sessions Judge, Sagar in Sessions Trial

No.108/2000, whereby the respondents/accused persons were acquitted by the trial Court from the charge under Section 436 of the Indian Penal

Code (herein after referred to I.P.C.).

State challenged the aforesaid conclusion of learned trial Court on the grounds that the Court below has wrongly appreciated the evidence of

prosecution witnesses. There is sufficient evidence on record to convict the respondents under Section 436 of I.P.C.

Charge-sheet under Sections 147, 323 read with Section 149, 436 and 294 of I.P.C. has been filed by the Police Station Baheriya, District Sagar

against the respondents alleging that on 11.02.2000 at about 7.45 pm near tempo stand at Karrapur due to enmity of election of Upsarpanch, the

respondents committed mischief by fire with intent to destroy the tapare and shops of Bhawanibai, Churaman, Ramnath etc.

Heard learned counsel for the parties. Perused the record.

In appeal against acquittal, it is always open to appellate Court to express right conclusion after re-appreciating evidence and if the charge is proved

beyond reasonable doubt to convict accused.

In case of Sudha Renukaiah and others vs. State of A.P. (2017) 13 SCC 81, the Supreme Court has held that :-

“In exercise of appellate power under Section 386 of I.P.C., High Court has full power to reverse an order of acquittal and if accused are found

guilty, they can be sentenced according to law.â€​

The question for determination is that whether the findings of trial Court acquitting accused are perverse and unsupported by evidence on record ?

In the instant case, the trial Court held that for the offence under Section 436 of I.P.C. the prosecution evidence on record is contradictory. On

the contrary, as per paragraph 20 of the impugned judgment, on the evidence of Asharam (PW-1), Shriramju Prasad (PW-2), Manohar Singh (PW-3),

Swaroop Singh (PW-4) and Premnarayan (PW-7) learned trial Court held that the appellants guilty for committing offence under Sections 147,

323/149 and 294 of I.P.C. The trial Court also held that on the date of incident the election of Upsarpanch was conducted. In result of election Kalyan

Singh won the election, he defeated Indar Singh. Respondents were follower of Indar Singh and Asharam (PW-1), Shriramju Prasad (PW-2),

Manohar Singh (PW-3), Swaroop Singh (PW-4) and Premnarayan (PW-7) were followers of winning party of Kalyan Singh. This is the reason for

this happening.

The findings of leaned trial Court clearly indicates that the trial Court has not relied on the testimony of Ashram (PW-1) for offence punishable

under Section 436 of I.P.C. In fact, Asharam (PW-1) clearly deposed against all the respondents (except Khumbalal) that the respondents committed

mischief by fire, intending to cause destruction and damages of shops belongs to Churaman, Ramnath and hut of Bhawanibai. Asharam (PW-1)

clearly stated that occurrence started by respondents Sitaram and Jhabbu, at the same time other respondents were assisting them. From the

testimony of Asharam (PW-1), it is apparently clear that he is eye witness of the incident. His presence on the spot at the time of incident is

unchallenged. For the other offence, learned trial Court relied on him as trustworthy eye witness.

It is important to mention here that an FIR (Ex.P/1) has been lodged by Asharam (PW-1) on the same date of the incident. In FIR, he specifically

narrated that the respondents (name mentioned in FIR) committed mischief by fire to shops and huts of Churaman, Ramnath and Bhawanibai. Name

of Premnarayan and Pappu were narrated as an eye witnesses. Shriramju Prasad (PW-2), Manohar Singh Rajput (PW-3), Swaroop Singh (PW-4)

and Premnarayan Pandey (PW-7)Â all these witnesses duly supported testimony of Asharam (PW-1).

Churaman (PW-5), Gopal Prasad (PW-8), Hariom Shrivastava (PW-14), Janki Prasad (PW-15) husband of Bhawanibai, Bhawanibai (PW-16)

admitted that their shops/huts were ablaze by someone. Of course, they did not state against the respondents but their testimony partly supported the

prosecution story.

Therefore, we do not find any reason to disbelieve the evidence of Asharam (PW-1), Shriramju Prasad (PW-2), Manohar Singh (PW-3),

Swaroop Singh (PW-4) and Premnarayan (PW-7). They have no intention to falsely implicate the respondents. On their same set of the evidence, the

respondents were convicted for other offence by the trial Court.

Mahesh Kumar, Head Constable (PW-18) established that he registered crime under Sections 147, 148, 149, 294, 506-B, 435, 323 and 427 of

I.P.C. against the respondents on the FIR lodged by Asharam (PW-1). On the same date, he sent Asharam (PW-1), Shriramju Prasad (PW-2),

Manohar Singh (PW-3), Swaroop Singh (PW-4) and Premnarayan (PW-7) to District Hospital, Sagar for treatment and medical examination.

In the impugned judgment, learned trial Court found that aforesaid witnesses were injured in the same incident. The testimony of injured witnesses

also inspires confidence of the prosecution story.

S.N. Pindra, Sub Inspector (PW-19) came to the spot on the next date of incident, i.e. 12.02.2000, he prepared “Nuksani Panchnamaâ€Â

(Ex.P/12, P/16, P/22 and P/23). As per Nuksani Panchnama (Ex.P/12, P/16, P/22 and P/23) due to fire, loss of Rs.5000/- was caused to Gopal

Prasad, loss of Rs.1000/- was caused to Hariom, loss of Rs.1500/- was caused to Jankiprasad husband of Bhawanibai and loss of Rs.40,000/- was

caused to Churaman.

This evidence is still unshaken and unrebutted. Even though, the owner of the aforesaid properties may not support the prosecution story but

further they have not denied the aforesaid damages in their shops/huts by mischief.

We do not find any material, contradiction and omission in the evidence of prosecution witnesses. Trial Court erred in unnecessarily emphasizing

that there was no direct evidence to connect the accused with crime. Therefore, from the testimony of Asharam (PW-1), Shriramju Prasad (PW-2),

Manohar Singh (PW-3), Swaroop Singh (PW-4) and Premnarayan (PW-7), it is established without any doubt that the respondents put fire on the

aforesaid shops and huts intentionally to cause damage more than Rs.1,000/up to Rs.40,000/-.

Therefore, after discussing the evidence on record come to the conclusion that the decision of Court below is based on erroneous views and

against the settled position of law. It should be reversed.

In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that :-

“In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with

the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do

substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that

may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard

to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence

on which the order of acquittal is founded.â€​

Similar, In case of Harijan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665, the Supreme Court has held that :-

“No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate

court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same

should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or

perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond

reasonable doubt on record, and convict the accused.â€​

In case of Anjandas vs. State of West Bengal and others 2017 Cr.L.J. 529 SC, the Supreme Court has held that :-

“If order of acquittal has been made on improper and erroneous appreciation of evidence, can be set aside by the appellate Court.

All ingredients of offence under Section 436 of IPC have been duly established by the prosecution. We are not inclined to accept the evidence of

defence witnesses because such defence taken by the respondents was not put to the aforesaid eye witnesses who established the crime against the

respondents. Defence taken by the respondents is seems to be made after thought. Therefore, it is not sufficient to create any doubt on the testimony

of supporting eye witnesses. Some minor contradiction and omission are not sufficient to brush aside the whole prosecution case which was otherwise

proved by the evidence on record. There is sufficient evidence on record to prove that the respondents committed aforesaid offence in furtherance of

their common intention. Therefore, they all are liable to be punished for same with the aid of Section 34 of I.P.C.

Therefore, we find appeals filed by the appellant-State are liable to be and are hereby allowed. The findings of learned trial Court regarding

acquittal of the respondents under Section 436 of I.P.C. is hereby set aside. All the respondents are convicted under Section 436/34 of the I.P.C. and

awarded sentence for 03 years with fine of Rs.5,000/- each. In case of default of payment of fine amount, further R.I. for one year. The respondents

are on bail. Their bail bonds are cancelled and they are directed to surrender immediately before the concerned trial Court to undergo the jail sentence,

failing which the trial Court shall take appropriate action under intimation to the registry.

Copy of this order be sent to the Court below for information and compliance alongwith its record.