Allahabad High Court
State Of U.P. vs Munna And Others on 17 March, 2020
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- CRIMINAL APPEAL No. - 285 of 1998 Appellant :- State of U.P. Respondent :- Munna And Others Counsel for Appellant :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
Heard learned A.G.A. and perused the record.
Present appeal has been filed by State against the judgment and order dated 10.12.97 passed by IIIrd Addl. Sessions Judge, Hardoi in Sessions Trial No. 743/96 (State Vs. Munna & others) arising out of Crime No. 43/96 under Section 307/34 I.P.C. P.S. Sandila, District Hardoi whereby acquitting the accused/respondents of their charge U/S 307/34 I.P.C.
The prosecution story is that informant Gyanendra Pratap Singh P.w. 1 lodged the report on 15.04.96 at 13.40 hours at P.S. Sandila stating that he alongwith his brother Taqdir Bahadur Singh and their advocate Shiv Dularey Tewari were coming from the Court of Sub Divisional Magistrate, Sandila in a case under Section 107/116 Cr.P.C.
The informant was driving the vehicle and Shiv Dularey Tewri Advocate sitting behind him with his Taqdir Babadur Singh, when they reached at Sandila Railway Fatak, Munna and Mansha Lal armed with country-made pistol stopped the motorcycle and they exhorted that complainants brother Taqdir Bahadur Singh be killed and their open nanahakkey the respondent No. 2 fired with country made pistol on Taqdir Bahadur Singh, who was injured and firing also caused some injury to Sri Shiv Dularey Tewari Advocate also.
Accordingly, an F.I.R. has been lodged in Case Crime No. 43/96 under Section 307/34 I.P.C. at Police Station Sandila district Hardoi and the injured are sent for medical examination.
According to injury report (exhbt. Ka-2) following injuries were found on the body of Taqdir Bahadur Singh:-
"1. Fire arm injury in the area of 8.5 cm x 5 cm t the base of right side of neck, 5.5cm below from the occifital. Advised for X-ray fro confirmation of pellets. Patient referred to the District Hospital, Hardoi for X-ray and for X-ray management."
According to injury report (exhbt. Ka-3) following injuries were found on the body of Sheo Dularey Tiwari:-
"Abraded contusion 4.5 cm x 2.5 cm at left scapular region, 4 cm above from the interior angle of the left scapula."
Accordingly, a charge-sheet was filed and S.T. Case Crime 743/96 out of Crime No. 43/96 under Section 307/34 I.P.C. P.S. Sandila, District Hardoi has been registered in the Court of IIIrd Additional Sessions Judge, Hardoi.
Prosecution in order to prove its case, in addition to documentary evidence has produced following witnesses:-
1. Sri Gyanendra Pratap Singh complainant-eye witness.
2. P.W. 2 Uma Shanker formal witness.
3. P.W. 3 Taqdir Bahadur Singh injured witness.
4. P.W. 4 Dr. P.C. Verma who examined the injuries.
5. P.W. 5 S.I. Sri Ajay Kumar Singh investigating Officer.
6. P.w. 6 head Constable Babu Ram Verma who proved Chik F.I.R.
The accused-appellant has denied their guilt under Section 313 Cr.P.c.
The trial court by means of judgment and order dated 10.12.1997 has acquitted the accused-appellant with the following findings:-
"11. The injury report of Taqdir Bahadur Singh (Ext Ka-2) shows that the injruy ws caused by fire arm, the patient was referred for X-ray, No X-ray was done and no supplementary report was filed by the doctor P.W. 4. It is said that he has not prepared any supplementary report. There is six hours difference on either side. The injuries are said to be fresh. Dr. P.W. 4 has said that injuries of the injured persons can be caused withing six hours of that time of incident. P.W. 4 could not able to tell the distance from where fire arm made. P.W. 4 has said that injury of Sheo Dularey Tiwari can be caused by fall from motorcycle. P.W. 1 and P.W. 3 have also said that injury of Sheo Dularey Tiwari ere caused by fall from motorcycle, but, in (Ext. Ka-1) complainant Gyanendra Pratap Singh as written that in this occurrence Sheo Dularey Tiwari has got pellet injury on the back. thus, the statement of P.W. 1 and P.W. 3 are against the contents of the (Ext. Ka-1).
12. There is over writing in the time of medical examination of Sheo Dularey Tiwari ........ is evident from (Ext. Ka - 3), (Ext. Ka 5) recovery memo is said to be prepared on 15.4.96, but there is over writing in the date of number"45" in (ext. ka - 5). this creates doubt ont eh recovery memo that the recovery memo was not prepared on 15.4.96. The recovery memo of blood stained clothes were prepared on 20.4.96. It is clear from (Ext. ka - 6), but there is over writing int eh date "20" which shows that this recovery memo as P.W. 6 H.C. has said that the clothes of Sheo Dularey Tiwari have been taken by the S.I. and seated and deposited all the Police Station, but P.W. 1 has said that he has given blood stained clothes of himself Sheo Dularey Tiwari and Taqdir Bahadur Singh ofn 20.4.96, so ther is mark difference between taking the blood stained clothes of the injured persons. From the perusal of (Ext. Ka - 6) blood stained clothes of Sheo Dularey Tiwari were one KURTA half sleeves, one white CHADDAR and it is said that the complainant Gyanendr Pratap Singh, injured Sheo Dularey Tiwari and Taqdir Bahadur Singh were returning from the court of Sub Divisional magistarte Sandila, after attending the hearing and Sheo Dularey Tiwari, Advocate was the Advocate of the complainant and injured Taqdir Bahadur Singh. He has appeared before the court on behalf of the complainant and Taqdir Bahadur Singh, Advocate appears in the Court in proper dress. Half Sleeves KURTA never comes in the category of proper dress when he appears before the Court. This shows that the prosecution story is completely doubtful. this story of one P.W.1 coming from the court at the place of occurrence is totally baseless because Advocate is always appear before the court in proper dress. From the blood stained clothes of Advocaet, Sri Sheo Dularey Tiwari, if improved that he was certainly not been in the proper dress at the place and time of occurrence.
13. Thus, P.W. 1 in his statement in the examination-in-chief has altered the date of occurrence. He has said that date was 15.7.96. According to (Ext. Ka - 1) and (ext. Ka 8) the date of occurrence is 15.4.96. there is over writing in time, in the injury report of Sheo Dularey Tiwari (Ext. ka - 3() and there is also over writing in the date of (Ext. Ka - 5), recovery memo of empty cartridge and recovery memo of blood stained clothes (Ext. Ka- 6). Thus, there is important lacuna in the investigation of the case and the prosecution evidence is according to the above discussion is not trustworthy."
Learned A.G.A. while challenging the impugned judgment submits that on the basis of evidence led by the prosecution, the case is being made out against the accused-appellant, however, ignoring the said evidence, the trial court has passed the judgement of acquittal.
We have heard learned counsel for parties and gone through the statement of the witnesses Gyanendra Pratap Singh as well as Taqdir Bahadur Singh/injured witness and from the careful scrutiny of the statements given by them, we are of the concerned opinion that the trial court does not committed any illegality or infirmity in passing the judgement of acquittal on the basis of the findings given in the judgment dated 10.12.1997 and taking into consideration the evidence given by two prosecution witnesses as well as finding given by the trial court while passing the judgment of acquittal.
In view of the abovesaid facts as well as the law as laid down by the Hon'ble the Apex Court in the case of Mathai Methews Vs. State of Maharashtra, 1970 (3) SCC 772, held as under:-
"It is now well-settled that the power of an appellate court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions. It is also well settled that before an appellate court can set aside the order of acquittal, it must carefully consider the reasons given by the Trial Court in support of its order and must give its own reasons to reject those reasons. If a finding reached by the Trial Judge cannot be said to be on unreasonable finding them the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record. It should bear in mind the presumption of innocence of the accused and the fact that the Trial Judge had the advantage of seeing and hearing the witnesses, la brief, the appellate court should not disturb an order of acquittal except on very cogent grounds. On an examination of the entire material on record we have come to the conclusion that the High Court was nto justified in setting aside the order of the trial court"
In the case of Umedbhai Jadavbhai Vs. State of Gujarat, 1978 (1) SCC 228, Hon'ble the Apex Court held as under:-
"6. In an appeal against acquittal, the High Court would not ordinarily interfere with the trial court's conclusion unless there are compelling reasons to do so, inter alia, on account of manifest errors of law or of fact resulting in miscarriage of justice. We are satisfied in this case that the High Court was justified in intervening in the matter for the reasons to follow.
7. It is well-established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.
8. We will first consider whether the High Court was justified in entertaining the appeal and secondly in interfering with the order of acquittal. Entertainment of the appeal by the High Court against an acquittal will be justified only under special circumstances. They exist in this case. We find that the Sessions Judge has committed a manifest error of record when he held that "there was a pool of blood in the outer room and trail of blood-stains leading from the outer room to the inner room". We do not find a tittle of evidence, oral or documentary to substantiate the above statement in the judgment of the Sessions Judge relying on which he came to the conclusion "that the victim was stabbed in the outer room while she was running from the outer room into the inner room". The Sessions Judge fell into a grave error by coming to this grossly erroneous conclusion absolutely unsupported by any evidence.
9. Did the assault on the deceased take place while she was asleep lying on her bed? Or was it outside the inner room when she was going out for the purpose of urinating as pleaded by the accused? This aspect was the crux of the case. Since the Sessions Judge committed a manifest error in holding that the victim was stabbed in the outer room which can by no means be supported by the evidence on record, the High Court was justified in entertaining the appeal against acquittal. An absolutely erroneous conclusion on such an important aspect in this particular case has led to a failure of justice.
10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
In the case of Union of India and others Vs. Sepoy Pravat Kumar Behuria, 2019 (10) SCC 220, Hon'ble the Apex Court held as under:-
"17. It is trite law that judgments of acquittal should not be disturbed unless there are substantial or compelling reasons. The substantial or compelling reasons to discard a judgment of acquittal were examined by this Court in Ghurey Lal v. State of U.P. [Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60] which are as follows: (SCC p. 477, para 70) "(i) The trial court's conclusion with regard to the facts is palpably wrong;
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached ? one that leads to acquittal, the other to conviction ? the High Courts/appellate courts must rule in favour of the accused."
This extract is taken from Union of India v. Pravat Kumar Behuria, (2019) 10 SCC 220 : (2019) 2 SCC (L&S) 815 : 2019 SCC OnLine SC 1426 at page 225
18. Applying the law laid down by this Court as stated above, we are of the opinion that the judgment of the Tribunal should not be interfered with.
This extract is taken from Union of India v. Pravat Kumar Behuria, (2019) 10 SCC 220 : (2019) 2 SCC (L&S) 815 : 2019 SCC OnLine SC 1426 at page 225
19. We have carefully examined the evidence. A view that the respondent is guilty is possible on a scrutiny of the oral evidence. However, the relevant factors taken into account by the Tribunal present another probable view. It is settled law that if two views can be reached, the one that leads to acquittal has to be preferred to the other, which would end in conviction. That apart, there is a clear violation of Rules 179 and 180 of the Rules and the respondent was deprived of an opportunity to defend himself."
We do not find any good ground or reasons to interfere in the matter in question as the finding given by trial court while passing the judgment of acquittal dated 10.12.1997 is based on the facts and material on record.
For the foregoing reasons, the appeal lacks merit and is dismissed.
No order as to costs.
(Vikas Kunvar Srivastav, J.) (Anil Kumar, J.) Order Date :- 17.3.2020/Ravi/