Ehsan vs State Of U.P. And 3 Ors. on 6 July, 2022

[Cites 36, Cited by 1]

Allahabad High Court

Ehsan vs State Of U.P. And 3 Ors. on 6 July, 2022

1. Heard Sri Anil Mullick, learned counsel for the appellant in the leading criminal appeal and Sri Ratan Singh, learned counsel for the appellant-State of UP in the connected appeal and perused the record.

2. Present Criminal Appeal under Section 372 Cr.P.C. as well as connected Government Appeal have been filed against the judgement and order dated 21.8.2019 passed by the Additional Sessions Judge, Court No. 1, Muzaffar Nagar acquitting the accused persons under Sections 302/34 IPC and 25 Arms Act in Sessions Trial No. 1513 of 2008 (State vs. Shamshad and another) arising out of Case Crime No. 69 of 2008, Sessions Trial No. 278 of 2009 (State vs. Mujabir) arising out of Case Crime No. 69 of 2008, Sessions Trial No. 1520 of 2008 (State vs. Shamshad @ Kallan) arising out of Case Crime No. 184 of 2008, and Sessions Trial No. 279 of 2009 (State vs. Mujabir) arising out of Case Crime No. 296 of 2008, P.S. Meerapur, District Muzzafar Nagar.

3. Prosecution story, in brief, is that the complainant Ehsan s/o Yamin gave a written report stating therein that his real brother Roshan s/o Yamin used to do the work of Kabad. The villager Munna s/o Baja also used to do the work of Kabad and due to the business dispute, time and again altercation took place between his brother and Munna and Munna bore enmity with his brother. On 7.3.2008 at 5:00 pm when he along with his brother was returning home after watering his agricultural filed, the accused-respondents Munna s/o Baja, Rashid and Sajid, after chasing them, fired on his brother closely, due to which his brother fell down on the ground and when the complainant made hue and cry, the accused Sajid also fired upon him, but he luckily escaped. The persons, namely, Akhlim s/o Yasin and other persons working in the nearby field came there. The accused persons also threatened them of dire consequences if they do not retreat. The dead body of the complainant's brother was lying on the spot. On the basis of the aforesaid, a first information report was registered in which after due investigation charge-sheet against the accused-respondents was submitted.

4. Four Sessions Trials being Sessions Trial No. 1513 of 2008 (State vs. Shamshad and another) arising out of Case Crime No. 69 of 2008, Sessions Trial No. 278 of 2009 (State vs. Mujabir) arising out of Case Crime No. 69 of 2008, Sessions Trial No. 1520 of 2008 (State vs. Shamshad @ Kallan) arising out of Case Crime No. 184 of 2008, and Sessions Trial No. 279 of 2009 (State vs. Mujabir) arising out of Case Crime No. 296 of 2008, P.S. Meerapur, District Muzzafar Nagar were proceeded and decided by a common judgment dated 21.8.2019, which is under challenge before this Court.

5. In support of prosecution case, PW-1 Akhlim, PW-2 Dr. Rakesh Kumar, PW-3 complainant Ehsan, PW-4 Inspector Hukum Singh, PW-5 Inspector M.P. Ashok, PW-6 Constable Dharmendra Sharma, PW-7 Sub-Inspector Bhupendra Rathi, PW-8 retired Head Constable Veer Singh, PW-9 retired Sub-Inspector Rupendra Kumar, PW-10 retired Inspector Jainath Yadav, PW-11 retired Inspector Hukum Singh, PW-12 retired Sub-Inspector Balveer Singh and PW-13 retired Inspector Dharampal Singh were produced and examined before the Court below.

6. Apart from other formal documents, the statement of informant Ehsan recorded under Section 164 Cr.P.C. is Ext. Ka-1A, site plan is Ext. Ka10, recovery memo recovering one country made pistol and one empty cartridge recovered from the accused Shamshad @ Kallan is Ext. Ka23.

7. The judgement of acquittal was passed on the ground that there had been contradictory stand taken regarding identify of accused persons. The first information report was lodged on 7.3.2008 against the three persons, namely, Munna, Rashid and Sajid on the ground that there was a business rivalry with accused Munna. After three days of incident on 9.3.2008, in the statement recorded under Section 161 Cr.P.C., the informant Ehsan, who is PW-3, had named Mujabir and two unidentified persons. This statement was verified by formal witness PW-13 Dharmapal Singh. Subsequently on 5.4.2008 Akhlim, who was alleged eye witness as per first information report, in his statement recorded under Section 161 Cr.P.C. named two persons, namely, Mujabir and Shamshad and one unidentified person who can be recognized from the front. This statement was also verified by the PW-7 Investigating Officer (formal witness). Subsequently, statements of informant Ehsan and Akhlim were recorded under Sections 164 Cr.P.C. wherein they have taken the names of Mujabir, Shamshad @ Kallan and Sardar. That apart, it has also been admitted by the informant that Shajid, Rashid and Munna had no concern with the business and writer of the first information report did not read out the tehrir to him. It was further found that although PW-7 has verified the bundle containing 315 bore country made pistol, 5 empty cartridges and 4 bullets received from the Forensic Science Laboratory (FSL), however, the ballistic report was not placed before the court below, therefore, the recovery of country made pistol etc. was also disbelieved and the recovery of weapon was not found to be connected with the alleged offence. Under such circumstances, the judgement of acquittal was passed.

8. Challenging the impugned judgment, Sri Anil Mullick, learned counsel for the appellant submits that the there was cogent evidence to convict the accused persons and there was strong motive as noted above which was lightly brushed aside by the trial court. It was further submitted that all the three accused persons were specifically named by the informant and since he was not writer of the first information report, therefore, how the name of other persons was included was not known to the informant and in any case, benefit of such lapse on the part of the writer of tehrir cannot go in favour of the accused persons. It was submitted that it had been specifically stated by PW-3 Ehsan (informant) that Shamshad, Sardar and Mujabir are residents of the village of informant and he knew them and accused Mujabir murdered one minor girl wherein deceased Roshan was a witness, therefore, there was a strong motive to commit the offence and recovery of weapon used in the offence was recovered on the pointing of the accused persons, therefore, the judgement of acquittal suffers from perversity. Submission, therefore, is that the impugned judgment is liable to be set aside and the accused persons are liable to be convicted.

9. We have considered the submissions and have perused the record.

10. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:

"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:

"10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-

"12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:

"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."

14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:

"(1) An appellate court has full power to review, re-appreciate 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."

16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:

i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

ii) The High Court's conclusions are contrary to evidence and documents on record;

iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

v) This Court must always give proper weight and consideration to the findings of the High Court;

vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.

A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.

12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."

12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 2 SCC 471.

13. On perusal of record we find that the court below has taken possible view of the matter on appreciation of entire evidence on record. The stand taken by the PWs 1 and 3 clearly shows that admittedly the accused Sardar, Mujabir and Shamshad @ Kallan are well known to them as they are residents of the same village whereas both the witnesses claimed that they are eye witnesses and have seen the incident. Under such circumstances, if that be so, there is no such possibility of naming three persons Munna, Rashid and Sajid who are later on claimed to be no connection with the offence whatsoever. The statements recorded under Sections 161 of PW-1 and PW-3 were verified by the formal witness PW-7 wherein only one accused person was named and two other persons were not named and other persons are said to be unknown person. In the statement recorded under Sections 164 Cr.P.C. both the prosecution witnesses PW-1 and PW-3 have stated that accused persons herein were involved. This story does not inspire confidence, inasmuch as it is alleged that both the witnesses were eye witnesses of the incident and all the three accused persons are known to him being the residents of the same village. Moreover, even though the recovery was shown to have been made from the accused persons and even the bundle containing the alleged weapons allegedly used in the incident was received from the FSL but still the ballistic report was not placed before the court below. Therefore, it is clear that eye witness count of the incident is not worth to be believed as in the absence of identification of the accused persons who were admittedly known to the PW-1 and PW-3 could not be proved on the appreciation of evidence on record. As such, their presence on the spot become highly doubtful. In such view of the matter, this Court is of the opinion that the trial Court has deeply gone in the matter and appreciated the evidence on record and we find no merit in the appeal filed by the informant-appellant. The Criminal appeal is accordingly dismissed.

14. Sri Ratan Singh, learned AGA has adopted the argument of learned counsel for the appellant we, therefore, for the discussions made hereinabove, find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected. Consequently, the Government Appeal No. 550 of 2019 also stands dismised.

15. Resultantly, present Criminal Appeal as well as connected Government Appeal No. 550 of 2019 both stands dismissed.

Order Date :- 6.7.2022 Abhishek

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Allahabad High Court