Allahabad High Court
State Of U.P. vs Dharmpal And Anr. on 23 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 48
GOVERNMENT APPEAL No. 518 of 2019
State of Uttar Pradesh Appellant
Vs
1. Dharmpal
2. Ram Prakash alias Prakash Respondents
____________________________________________________
For Appellant : Sri O.P. Mishra, AGA
For Respondents : None
________________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
Per: Pritinker Diwaker, J.
(23.01.2020)
1. Heard on admission.
2. Challenge in this Government Appeal is to the judgment and order dated 21.08.2019 passed by IXth Additional Sessions Judge, Budaun in Sessions Trial No.197 of 2016 (State vs. Dharmpal and another), acquitting the accused respondents of the offences under Sections 302/34, 201 of IPC. Further challenge in this appeal is to the judgment whereby the court below has acquitted accused Dharmpal of the offence under Section 4/25 of the Arms Act in ST No.198 of 2016 (State vs. Dharmpal).
3. As per prosecution case, on 29.11.2015, one dead body was found in the potato field and later the same was identified to be that of the deceased Pooran. Allegation against the accused persons are that on account of election rivalry, they decided to eliminate the deceased and that is why they killed him.
4. While framing charge, the trial Judge has framed charge against respondents under Sections 302/34, 201 of IPC, whereas a separate charge was framed against accused Dharmpal under Section 4/25 of the Arms Act.
5. So as to hold accused-persons guilty, prosecution has examined as many as thirteen witnesses, whereas two defence witnesses have also been examined. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.
6. By the impugned judgment, the trial Judge has acquitted the accused respondents of all the charges. Hence the present appeal by the State, assailing the acquittal.
7. Counsel for the appellant submits that the trial court has erred in law in acquitting the respondents.
8. We have heard learned counsel for the appellant and perused the record.
9. Undisputedly, there is no eye witness account to the incident and the appellants have been acquitted on the basis of circumstantial evidence adduced by the prosecution. Though the main piece of evidence against the accused persons is the so-called evidence of 'last seen' by Pramod Kumar (PW-5), but the said evidence has not been found reliable by the trial court because the postmortem report of the deceased does not tally with the statement of the witness of last seen. Recovery of one knife has been seized from accused Dharmpal, but the FSL report does not support the prosecution case. Even motive part has not been found to be proved by the trial court. The electronic evidence has also not been brought on record, nor has been proved.
10. Considering all these aspects of the case, the trial court has drawn a conclusion of acquitting the accused respondents. The view taken by the court below is one of the possible and plausible 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 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 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 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."
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.
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.
Dated: 23.01.2020
nethra/ C.Mani
(Shekhar Kumar Yadav, J) (Pritinker Diwaker, J)