Allahabad High Court
State Of U.P. vs Gulam And Others on 27 January, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 51 Case :- GOVERNMENT APPEAL No. - 2612 of 1987 Appellant :- State of U.P. Respondent :- Gulam And Others Counsel for Appellant :- A.G.A.,Sanjeev Ratan Counsel for Respondent :- Smt. Anita Tripathi,Parvez Iqbal Ansari,Tripathi B.G. Bhai Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Gautam Chowdhary,J.
Heard Sri Nafees Ahmad, learned A.G.A. for the State, Sri Parvez Iqbal Ansari, learned counsel for the accused-respondents and perused the impugned judgement of acquittal and record of the appeal.
We have heard on the leave to appeal application on behalf of the State.
In this case, long drawn order-sheets ranging from over two decades are indicative of fact that the process to summon the lower court record has been issued and several reminders have been sent to the District Judge concerned for sending the same, but the learned A.G.A. submits that the leave to appeal application may be heard on the strength of the record already available and particularly, the certified copy of the judgment and order be pronounced on the maintainability of the leave to appeal application as such.
Sri Parvez Iqbal Ansari, learned counsel for the accused-respondents has no objection and he is ready to respond to the leave to appeal application as such.
Consequently, we are hearing on the point of maintainability of the leave to appeal application so far as this appeal is concerned on the strength of record already available.
Sri Nafees Ahmad, learned A.G.A. has informed that accused-respondent no.3, Abdul Salam and accused-respondent no.6, Mohammad Mustafa have since expired during pendency of this appeal.
In view of above, this appeal stands abated qua accused-respondent no.3, Abdul Salam and accused-respondent no.6, Mohammad Mustafa, and is dismissed.
Now, this appeal qua the surviving accused-respondent no.1, Ghulam, accused-respondent no.2, Jhothar, accused-respondent no.4, Abdul Bari and accused-respondent no.5, Abdul Rahman- are for adjudication.
By way of instant Government Appeal, wherein leave to appeal has been sought by the Government against the judgement and order of acquittal dated 26.05.1987 passed in Sessions Trial No. 424 of 1985 by the then Special Judge Basti, under Sections 147 & 304/149 I.P.C., Police Station ? Bhawaniganj, District - Basti, whereby, the accused-respondents Gulam, Abdul Salam, Abdul Bari, Jhothar, Mohd. Mustafa and Abdul Rahman have been acquitted of the charges under Sections - 147, 304 I.P.C. read with Section ? 149 I.P.C. and accordingly, they have been acquitted of charges by the aforesaid order.
Succinctly, facts relevant for adjudication of this appeal, as discernible from perusal of the record, appear to be that - informant Ram Tandon r/o of Village ? Bithariya Khurd, P.S. - Domariyaganj, District - Basti had lodged a written report that on 04.06.1976, at the time of sunset, Gulam Malik of his village, came to his house and asked for some milk from his mother. His mother told Gulam that there was no milk in her house and therefore she was unable to give it to him. On this, Ghulam started abusing her. The informant and his father asked Gulam not to abuse, whereafter, heated exchange of words took place. Thereafter, Gulam, Jhother, Salam, Rahman, Bari and Mustafa came with lathis from their house and started assaulting the informant, his mother and father and his maternal uncle (mama) Rama Nand Yadav. They raised an alarm, on which, several villagers collected there and chased the accused persons. Thereafter, the accused persons ran away. The F.I.R. was lodged at aforesaid police station on the same day under Sections - 147, 323 I.P.C. Later on, the case was converted into one under Section - 304 I.P.C. The accused persons pleaded not guilty and stated that they have been falsely implicated.
The prosecution examined P.W.1 Ram Tandon, P.W.2. Dwarika, P.W.3 Bansh Raj, P.W.4 Ram Sundar as witnesses of facts and also examined formal witnesses viz. P.W.5 Dr. J.N.L. Srivastava, who dissected the dead body of Rama Nand Yadav and proved the post mortem report Ex.Ka.2., P.W.6 Constable Ram Mani Tripathi in order to prove that I.O. Kashi Nath Mishra has expired.
Claim has been made by Sri Nafees Ahmad, learned A.G.A. on the meritorious count by assailing the aforesaid judgment and order on ground that the material witnesses present on the spot have not been examined. A clear-cut case was made out by the informant that the accused arrived on the scene and started hurling abuses on the informant side; and on being asked not to do so, a number of other accused possessing lathi in their hands, arrived on the spot and gave beating to the informant side and caused serious injuries to the maternal uncle of the informant (Rama Nand Yadav), which proved fatal and he succumbed to his injuries. That aspect cannot be bypassed merely having recourse to conjectures and analogy not based on material on record.
The testimony of P.W.1, the informant- Ram Tandon, is most trustworthy and it cannot be brushed aside merely on ground that the probabilities of the case do not inspire confidence and the witness is not telling the truth. The presence of D.W.1 Ram Adharey on the spot, as claimed by him in his testimony before the trial court, cannot be believed to be the correct one, but manufactured and brought-up evidence in order to mislead the court and the court below could not read the correct position and it was swayed by the reasoning and logic not applicable to the attendant facts and circumstances of the case. That way, the trial court, while appraising the facts and the evidence on record, erred in passing the aforesaid judgment.
We have also heard the learned counsel for the accused-respondents. He has claimed that the analogy drawn by the lower court cannot be brushed aside merely on reasoning, but the judgment and order is just and consistent and is based on facts, evidence and circumstances of the case for the reason that the story, as narrated and unfolded by the informant, if taken to be correct in all its sincerity, then the same does not fit into the shoes of the prosecution, for the simple reason that no one else except Rama Nand Yadav sustained injuries, whereas the assault was caused to the mother and father of the informant including the informant himself, apart from his maternal uncle Rama Nand Yadav on the spot not by one person, but by as many as 5-6 persons bearing lathi, is it possible and the correct that material aspect of the case were tried to be concealed, which were very much divulged by the testimony of D.W.1 Ram Adharey.
We have considered the rival submissions and also perused the copy of the judgment and order, wherein, we find a detailed discussion on the aforesaid aspects. The trial court has rightly arrived at finding that in this case, the real story has not been brought in its limbs before the trial court accordingly did not believe the version set up by the prosecution, as per the origin of the incident itself, whereas the testimony of D.W.1 cannot be brushed aside as his presence on the spot was very much established.
It cannot be said that the finding recorded in relation to all the aforesaid facts by the trial court are either perverse or erroneous on the face. It is stringent law and the principle of criminal jurisprudence is well settled on the point that in the judgment of acquittal, if the two views are possible, then the view that favors to the accused will be preferred by the appellate court. In this case, the view taken by the trial judge appears to be grounded on material on record. Consequently, the finding of acquittal is on the face just and consistent and needs no interference by us.
Consequently, the leave to appeal is refused.
Resultantly, the appeal fails and the same is liable to be dismissed.
Ordered accordingly.
Order Date :- 27.1.2020 S Rawat