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State of Madhya Pradesh Vs. Ramcharan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1986CriLJ424; 1985MPLJ714
AppellantState of Madhya Pradesh
RespondentRamcharan and ors.
Cases Referred and A.M.A. Rehman v. State of Gujarat
Excerpt:
.....view if the case had been tried by it (see: tiwari, learned panel lawyer for the state, was unable to demolish or dislodge entirely or effectively the main grounds of acquittal passed by the trial court......was put against them. they were thus tried in sessions trial no. 100 of 1979.5. during trial, the prosecution examined virendra kumar (p.w. 1), shantibai (p.w. 2) as the eye-witnesses of the crime. the trial court in the impugned order disbelieved these eye-witnesses and passed the order of acquittal.6. shri r.b. tiwari, panel lawyer on behalf of the state, has submitted that the trial court has recorded the acquittal of the respondents on flimsy contradictions and on discarding the evidence of dr. vijay kumar diwan (p.w. 5) and wrongly acquitted the respondents, though the offence was proved against them beyond all reasonable doubt.7. we were carried through the entire evidence and the impugned judgment, which recorded acquittal of the respondents. according to the evidence.....
Judgment:

Rampal Singh, J.

1. The appellant, after obtaining requisite leave, has preferred this appeal against the acquittal of the respondents recorded by the Additional Sessions Judge, Gwalior on 18-10-1979, in Sessions Trial No. 100 of 1979.

2. The respondents, along with one Nathuram, were prosecuted for having committed an offence of murder of one Radheyshyam Rastogi, in the morning of 13th May, 1979. They were charged under Sections 449 and 302 read with Section 34, Penal Code. Nathuram, co-accused, died during the course of the trial.

3. The case of the prosecution was that the deceased Radheyshyam Rastogi was 'Mukhatyar' of one Sitaram and as a Mukhatyar, he initiated proceedings of eviction against the father of the respondents. It is alleged that on 6-5-1979, the deceased, in the execution of the decree for eviction, took possession of the premises. It was also alleged that on 9-5-1979, the father of the respondents, Nathuram, took forcible possession of the above noted premises. On 12-5-1979, the deceased lodged a report in the police, which is Ex. P. 14. It is in the morning of 13-5-1979, that when the deceased was sleeping in his house, the respondents are alleged to have entered the house and committed murder of the deceased by means of lathi blows, due to which he died on the spot.

4. Ganeshram (P.W. 4), along with Virendra Kumar (P.W. 1) intimated Shambhudayal who immediately proceeded to police station Mohana and lodged the first information report at 8.00 a.m. The police arrived on the spot, investigated the case, arrested the respondents and the charge-sheet was put against them. They were thus tried in Sessions Trial No. 100 of 1979.

5. During trial, the prosecution examined Virendra Kumar (P.W. 1), Shantibai (P.W. 2) as the eye-witnesses of the crime. The trial Court in the impugned order disbelieved these eye-witnesses and passed the order of acquittal.

6. Shri R.B. Tiwari, Panel Lawyer on behalf of the State, has submitted that the trial Court has recorded the acquittal of the respondents on flimsy contradictions and on discarding the evidence of Dr. Vijay Kumar Diwan (P.W. 5) and wrongly acquitted the respondents, though the offence was proved against them beyond all reasonable doubt.

7. We were carried through the entire evidence and the impugned judgment, which recorded acquittal of the respondents. According to the evidence available on record, it is clear that one Prabha Devi Agarwal and Dhannobai were also witnesses to the crime, but the prosecution chose not to put them in the witnessbox during the trial. The trial Court has reasoned that Virendra Kumar (P.W. 1), who is the son of Ganeshram (P.W. 4) and Shantibai (P.W. 2), who is wife of Ganeshram are all interested witnesses and are inimical to the respondents. The trial Court further reasoned that the prosecution has purposely kept away the independent witnesses from the trial. Virendra Kumar (P.W. 1), Shanti bai (P.W. 2) and Ganeshram (P.W. 4) have not been relied upon by the trial Court, because all these three witnesses were not only inimical to the respondents, but looking to the background of enmity, they have been held unreliable. The entire reasoning has been discussed in paras 18, 19, 20 and 21 of the impugned judgment. In para 21, the trial Court has concluded that Virendra Kumar (P.W. 1) and Shantibai (P.W. 2) are no doubt examined as the eyewitnesses, but they have not witnessed the commission of the crime. He had described in details the material contradictions, which have occurred in their testimony. Ganeshram (P.W. 4) was confronted with his previous statements, which were recorded in the litigation in which Ganeshram appeared as a witness against the father of the respondents in different Courts. In this background the trial Court has evaluated the entire prosecution testimony and has rejected them as unreliable.

8. Thus, these prosecution witnesses were held not only inimical to the respondents, but belonging to the group of the deceased and continuously remained deposing in cases after cases against the respondents. Thus, the independent witnesses, named above, were chosen by the prosecution not to produce them for the reasons best known to them. No doubt, it is the choice of the prosecution to examine the witnesses, those who unfold the story of the prosecution, but at the same time, if inimical witnesses are examined and independent witnesses are kept away from the witnessbox, then in that case, the testimony of the inimical witnesses has to be scrutinized very closely. In this context, if those inimical witnesses are proved to be reliable then and only then they should be relied upon. This test was applied by the trial court and according to its opinion, Virendra Kumar (P.W. 1), Shantibai (P.W. 2) and Ganeshram (P.W. 4) were not found reliable.

9. Although in an appeal from an order of acquittal, the powers of this Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should give proper weight and consideration to the view of the trial Judge who had the advantage of seeing the witnesses. If the view of the trial Judge cannot be said to be unreasonable, the appellate court should not disturb it even if it were possible to reach a different conclusion. It is well settled that the appellate Court should be slow in disturbing the finding of fact of the trial Court, and, even if two views are reasonably possible, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it (See: : 1979CriLJ51 : Ganesh Bhavan Patel v. State of Maharashtra.).

10. Yet in another case, their Lordships of the Supreme Court in the case of Babu v. State of U.P. : 1983CriLJ334 reiterated the same principle in the following words:

If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on record, it is not expected to interfere simply because it feels that it would have taken a different view if the case has been tried by it.

11. The same view was consistently taken by their Lordships of the Supreme Court in Kanbi Purshottam Ladha v. State of Gujarat: 1980 Cri App R(SC) 19 : 1979 Cri LJ 1332.

12. Learned Panel Lawyer has cited before us the cases of B.K. Maarfatia v. State of Maharashtra : 1978CriLJ507 and A.M.A. Rehman v. State of Gujarat : 1976CriLJ1382 and submitted that the Supreme Court is also of the view that the High Court can interfere with the order of acquittal. Be that as it may, but the tests laid down in these two decisions are not applicable in the case at hand because the principle of ratiocination is present in the impugned order and it is not based upon the speculations or conjunctures. Suffice it to say that the proper care has been taken by this Court to examine the evidence in this case carefully according to the principles laid down by the Supreme Court. Thus, the ratio of these cases is not applicable to the case in hand.

13. Shri R.B. Tiwari, learned Panel Lawyer for the State, was unable to demolish or dislodge entirely or effectively the main grounds of acquittal passed by the trial Court.

14. In the result, therefore, this appeal fails and is dismissed. The judgment of the trial Court is maintained.


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