Allahabad High Court
State Of U.P. vs Jamshed And Others on 18 November, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 48 Government Appeal No. 7207 of 2010 State of U.P. ---- Appellant Vs. 1. Jamshed 2. Furkan 3. Kurban ---- Respondents For Appellant : Sri J.K. Upadhyay, A.G.A. For Respondents : Sri Arvind Kumar Srivastava, Amicus for respondent no.3. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (18.11.2019)
1. Challenge in the present appeal is to the judgment and order dated 03.06.2010 passed by Additional District & Sessions Judge, Fast Track Court No.1, Kairana, District Muzaffarnagar in Sessions Trial Nos. 419 of 2004, 420 of 2004, 421 of 2004 & 422 of 2004, whereby court below has acquitted the private respondents of the offence under Sections 307/34 of IPC, 25/27 and 25/4 of the Arms Act.
2. As per prosecution case, on 18.02.2003, when the police apprehended the accused persons namely, Jamshed, Furkan and Kurban in connection with kidnapping of Prempal Sharma and Suhendra Lal Jain, accused persons fired at the police party, but luckily no one suffered any injury. After arresting the accused persons, they were tried under Sections 364-A and 368 of I.P.C. and in the said case, vide Sessions Trial No. 467 of 2004, the accused persons have been acquitted.
3. In the present case, while framing charge, the trial judge framed charge against the accused persons under Sections 307/34 of I.P.C., 25/27 and 25/4 of the Arms Act.
4. So as to hold accused persons guilty, prosecution has examined four witnesses whereas two defence witnesses have also been examined. Statements of accused persons were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.
5. By the impugned judgement, the trial Judge has acquitted the respondents of all the offences. Hence the present appeal by the State, assailing the acquittal of the accused persons.
6. Learned counsel for the State submits:
i) that the trial judge has erred in law in acquitting the respondents.
7. We have heard the learned counsel for the appellant, Sri Arvind Kumar Srivastava, Amicus for respondent no.3 and perused the record. None for other accused persons.
8. From the evidence, it is evident that there are material contradictions in the statements of PW-1 Rahees Pal Singh and PW-3 Harun. The evidence of PW-1 Rahees Pal Singh does not inspire the confidence of the Court. While considering the evidence, the trial court has recorded a categorical finding that there are material contradictions in the statements of PW-1 Rahees Pal Singh and PW-3 Harun. There was no evidence of dispersal of pellets at the place of occurrence.
9. Considering all the aspects of the case, the trial court came to the conclusion that the prosecution has failed to prove its case beyond all doubts and, therefore, the trial court has acquitted all the accused persons. The trial court has recorded a finding that the police party was duly armed with weapons, but did not make any attempt to fire aiming the accused persons and, therefore, false implication of the accused persons cannot be ruled out.
10. 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 Hon'ble 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 evidence 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."
11. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble 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, 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."
12. 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."
13. Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was justified in acquitting the accused-respondents.
14. The appeal has no substance and the same is, accordingly, dismissed.
Date: 18.11.2019 RK/SK/TS (Raj Beer Singh, J) (Pritinker Diwaker, J)