Allahabad High Court
State Of U.P. vs Dilshad Kamran And 4 Others on 16 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- GOVERNMENT APPEAL No. - 156 of 2021 Appellant :- State of U.P. Respondent :- Dilshad Kamran And 4 Others Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Shiv Shanker Prasad,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Ms. Nand Prabha , learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 11th February, 2021 passed by the Special Judge (POCSO)/Additional Sessions Judge, Court No. 16, Saharanpur in Session Trial No. 243 of 2018 (State of U.P. Vs. Dilshad & Others), Session Trial No. 610 of 2019 (State of U.P. Vs. Dilshad), Session Trial No. 537 of 2018 (State of U.P. Vs. Ahsan), Session Trial No. 594 of 2018 (State of U.P. Vs. Mukesh @ Monu), Session Trial No. 16 of 2019 (State of U.P. Vs. Naseem) and Session Trial No.254 of 2019 (State of U.P. Vs. Waseem), whereby all the accused-opposite parties, who are five in number, have been acquitted from the charges under Sections 147, 148, 149, 307, 468, 471 I.P.C. and Sesions 4/25, 3/25 I.P.C. of the Arms Act.
3. Prosecution story, in brief, is that on 8th September, 2017 at about 20:30 p.m. when the complainant/informant Station House Officer, namely, Chhotey Singh along with some other police personnels was patrolling and checking illegal vehicles and miscreants, he was informed through a Police Informer that some criminal persons with intention to loot, are hidden behind the Eidgah near Pandauli Road Railway Fatak. After receiving the said information, the police team reached and saw two motor cycles. On first motorcycle three persons were standing and on the second motorcycle, two persons were standing. When the police personnels tried to check them, seeing them, the said criminal persons started running away and when the police personnels chased them, they fired upon them, which did not hit any of the Police personnels. However, after making some efforts, the Police Personnels succeeded to catch four criminal persons out of five and one person, taking advantage of darkness, succeeded to flew away by motorcycle. The persons, who were caught by the Police personnels, interrogated and searched. Amongst them, one told his name as Dilshad son of Sham Shad, from whose possession, one pistol of 315 bore, one empty cartridge, two live cartridges and Rs. 37,000/- cash were recovered. The second person told his name as Naseem son of Shaukat, from whose possession, one pistol of 315 bore, one empty cartridge of 315 bore, one live cartridge of 315 bore and Rs. 23,000/- cash were recovered. The third person told his name as Monu son of Rohtas, from whose possession, one big size knife was recovered. The fourth person told his name as Waseem son of Saleem, from whose possession a big size knife and Rs. 6,000/- cash were recovered. When the police personnels asked for licence about the firearms, which were recovered from their possession, they did not show any licence. About the cash, which were recovered from their possession, they replied that the same were looted by them from the passengers and other various articles including rings, mangalsootra. The person who succeeded to flew away was recognized by the aforesaid persons, as Ahsan son of Illiyas and he was also involved in lootings along with other accused persons. After following the guidelines framed by the Apex Court and the Human Rights Commission, the recovery was made and the arrest of the accused persons/opposite parties as affected. The investigation in the matter was done and the charge-sheet was submitted against them under Sections . After submission of the charge-sheet and framing of charge against the accused-opposite parties, the trial was proceeded by the trial court. Resultantly, the impugned judgment and order has been passed.
4. In support of prosecution case, PW-1 Sub-Inspector Ashveer Sharma, P.W.-2 Inspector Chhotey Singh, P.W.-3 Constable Sachin Kumar and P.W.-4 Sub Inspector Naveen Kumar were produced and examined before the Court below.
5. In order to prove its case, the prosecution also relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are cataloged herein below:-
The fard baramadagi was marked as Exhibit-Ka-1, arrest memo was marked as Exhibits Ka-2 & 3, the first information report was marked as Exhibit Ka-4, G.D. return was marked as Exhibit Ka-5, the first information report of accused Dilshad was marked as Exhibit Ka-6, the first information report of accused Naseem was marked as Exhibit Ka-7, the first information report of accused Mukesh was marked as Exhibit Ka-8, the first information report of accused Vaseem was marked as Exhibit Ka-9, Cite Plan was marked as Exhibit Ka-10, framing of charge paper was marked as Exhibit Ka-11, framing of charge paper of accused Ehshan was marked as Exhibit-Ka 13, framing of charge paper of accused of Naseem was marked as Exhibit Ka-14, framing of charge paper of accused Dilshad was marked as Exhibit-Ka 15, framing of charge paper of accused Waseem.
6. Apart from the above, oral evidence of P.W.-1 to P.W.4 were also examined by the court below.
7. The impugned judgment of acquittal was passed on the ground that there was no independent eye witness in the present case. No entry about the Rawangi of police party and the weapons which were alleged to have been recovered from the accused-opposite parties, was mentioned in the G.D. Though, in examination-in-chief, P.W.1 Ashveer Sharma has stated that the accused-opposite parties fired upon the Police personnels including P.W. 1 but admittedly no firearm injuries were caused to any of the Police Personnels. There was no injury report regarding any one. As such, offence under Section 307 I.P.C. against the accused-opposite parties is also not proved. It was further found that the recovery of motor cycle is also not proved, inasmuch as there is no independent eye witness of the said motorcycle and the oral evidence could not be proved that the accused persons have committed any offence. There is no evidence collected from the spot that there was any firing on the spot nor there is any ballistic expert report. So far as fabrication of number plate on the alleged recovered motorcycle is concerned, it was also found that it could not be proved that the accused persons had changed the number plate and attacked to the police party. As such, offence under Sections 468 and 471 I.P.C. by is also not proved. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the judgement of acquittal was passed.
8. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that there was cogent evidence to convict the accused persons herein. She next submits that the trial court has not properly appreciated the evidence of the prosecution and has decided the case only on the basis of conjectures and surmises. She further submits that the trial court has committed gross error in disbelieving the testimonies of the witnesses of the prosecution and given importance to the version of the defence. The trial court has applied a different concept which is now alien to the principles of appreciation of the evidence in criminal trial. On the cumulative strength of the aforesaid, Ms. Shukla, the learned A.G.A. submits that as the judgment and order of the acquittal of the accused-opposite parties is both against the facts and evidence on record, the same requires serious consideration and reversal and the accused persons herein 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.
11. In the case of Bannareddy and others vs. State of Karnataka and others, reported in (2018) 5 SCC 790, in paragraph 10, the Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
12. In Jayamma vs. State of Karnataka, reported in 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 an order of acquittal passed by a Trial Court.
13. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, reported in 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
14. Similar view has been reiterated by the Apex Court in Rajesh Prasad vs. State of Bihar and another, reported in (2022) 3 SCC 471.
15. On perusal of record, we find that there was no entry in the G.D. that on receiving the information through an informer that some criminal persons were standing on the spot, they left the Police Station and went to the spot. Admittedly, in the alleged firing by the accused-opposite parties, no one police personnel including P.W.-1 Sub-Inspector Ashvir Sharma had suffered any firearm injury. We further find that the P.W.-4 Sub-Inspector Naveen Kumar has also not proved the investigation done in the present case. He stated that he does not have any G.D. entry to the effect as to when he started the investigation and when the same had been completed. There was no evidence on record that the alleged motorcycle was recovered from the possession of accused-opposite parties and the same was used by them by changing another number plate.
16. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
17. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
(Shiv Shanker Prasad, J.) (Vivek Kumar Birla, J.)
Order Date :- 16.8.2022
Sushil/-