Allahabad High Court
State Of U.P. vs Balister And 4 Ors. on 13 December, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 10.12.2019 Delivered on 13.12.2019 Government Appeal No.471 of 2019 State of Uttar Pradesh ---- Appellant Vs 1. Balister 2. Nempal 3. Sishupal alias Bhure 4. Dhake alias Om Prakash 5. Soran Singh alias Karru ---- Respondents For Appellant : Sri Amit Sinha, AGA For Respondents : None Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
Heard on admission.
2. Challenge in this appeal is to the judgment and order dated 18.7.2019 passed by IV Additional Sessions Judge/Special Judge (EC Act), Badaun in Sessions Trial No.395 of 2014 (State vs. Balister and others) and Sessions Trial No.396 of 2014 (State vs. Dhake alias Om Prakash), acquitting all the private respondents-accused of the offence under Sections 147, 302 read with Section 34 of IPC and further acquitting accused Dhake alias Om Prakash under Section 3/25 of Arms Act.
3. In the present case, name of the deceased is Shiv Kumar @ Bablu. On 20.5.2014, deceased was talking to two minor girls of accused Balister, aged about 12 and 13 years respectively, which was not liked by accused-respondent Balister and his family members. It is said that on 20.5.2014 at about 12.00 in the afternoon, accused persons committed murder of the deceased by throttling. On the basis of written report, Ex.Ka.2 dated 21.5.2014, FIR Ex.Ka.3 was registered against accused persons under Sections 147, 148, 149, 302 of IPC. After conducting the inquest on the dead body of the deceased, the same was sent for postmortem. On 30.5.2014, a separate FIR was also registered against accused Dhake alias Om Prakash under Section 3/25 of the Arms Act.
4. While framing charge, learned trial Judge has framed charge against the respondents-accused under Sections 147, 302/34 of IPC and in a separate trial, charge was also framed against accused Dhake alias Om Prakash under Section 3/25 of the Arms Act.
5. So as to hold accused guilty, prosecution has examined 10 witnesses. Statements of accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
6. By the impugned judgment, trial Judge has acquitted the respondents-accused of the offence, as mentioned in para-2 of this judgment. Hence the present appeal by the State, assailing the acquittal.
7. Learned counsel for the appellant-State submits:-
(I) that the trial judge has erred in law in acquitting the respondents-accused.
8. We have heard Sri Amit Sinha, learned counsel for the State-appellant and perused the record.
9. In the Court, (PW-3) Roop Ram, an eyewitness to the incident, has not supported the prosecution and turned hostile. (PW-5) Ved Ram, has though partially supported the prosecution case, but he also admitted that he has an old enmity with the accused persons and one Sessions Trial relating to offence under Section 307 is pending between them. While considering his statement, the court below has also considered an important aspect of the case that (PW-5) Ved Ram was a witness of inquest (Ex.Ka.5) conducted on 20.5.2014, but he kept silence at the time of inquest. The court below has come to the conclusion that had (PW-5) Ved Ram seen the incident, at the time of conducting inquest itself he would have disclosed this fact. The evidence of last seen by (PW-7) Hem Raj has also not been found worth consideration by the court below. (PW-7) was also a witness of inquest, but he (this witness) kept silence at the time of conducting inquest and had not said that he saw the deceased in the company of the accused persons.
10. Considering all the aspects of the case, the court below has come to a conclusion that the prosecution has failed to prove its case against the respondents-accused and held that the respondents-accused are not guilty of the offence, as alleged. The view taken by the trial court is one of the possible view and it cannot be said to be perverse.
11. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonable possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna, reported in (2005) 9 SCC 291, the Supreme Court, while dealing with an appeal against acquittal, observed as under:
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evnidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
12. In Sudershan Kumar v. State of Himachal, reported in (2014) 15 SCC 666 the Supreme Court observed thus;-
"31. It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -
"37. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, this Court held: ( SCC p. 432 para 42), (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) 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.
(4) An 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 secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) 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."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible 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."
13. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(4) An 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 secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) 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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."
14. Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was fully justified in acquitting the respondents-accused.
15. Taking all the circumstances as it is, leave as prayed for by the State, is refused. Hence, the appeal is dismissed at the admission stage itself.
Date:13.12.2019
RKK/Mohit
(Raj Beer Singh, J) (Pritinker Diwaker, J)