Allahabad High Court
State Of U.P. vs Kamlesh @ Guddu Mishra And 3 Ors. on 2 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 69
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.48 Government Appeal Defective No.155 of 2019 State of Uttar Pradesh ---- Appellant Vs 1. Kamlesh @ Guddu Mishra 2. Udaiveer @ Baba Yadav 3. Virendra Yadav 4. Pinki @ Saurabh ---- Respondents For Appellant : Sri Amit Sinha, AGA For Respondents : None Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J.
(2.1.2020) Delay in filing the State Appeal is condoned.
2. Heard on admission.
3. Challenge in this appeal is to the common judgment and order dated 17.10.2018 passed by the 1st Additional District & Sessions Judge, Etawah in Sessions Trial Nos.61 of 2012, 349 of 2012 and 62 of 2012, acquitting all the accused-respondents under Sections 147, 148, 302/149 of IPC and Section 7 of Criminal Law Amendment Act and further acquitting accused-respondent Kamlesh @ Guddu Mishra under Section 25/27 of the Arms Act.
4. Brief facts of the instant case are that on 13.9.2011 at about 6.00 pm, deceased Shree Krishna and Jitendra were subjected to gun shot injuries, resulting their instantaneous death. The incident is said to have been witnessed by (PW-1) Smt. Shanti Devi, wife of deceased Shree Krishna and (PW-2) Smt. Santoshi Devi, wife of second deceased-Jitendra. On the basis of written report Ex.Ka.1, lodged by (PW-1) Smt. Shanti Devi, FIR Ex.Ka.14 was registered on 13.9.2011 at 7:45 pm against all the accused persons. Inquests on the dead bodies were conducted vide Ex.Ka.9 (Shree Krishna) and Ex.Ka.4 (Jitendra) and the bodies were sent for postmortem which were conducted, vide Ex.Ka.2 (Shree Krishna) and Ex.Ka.3 (Jitendra) by (PW-3) Dr K S Bhadauriya.
5. While framing charge, learned trial Judge has framed charge against accused Kamlesh @ Guddu Mishra under Sections 147, 148, 302/149 of IPC and Section 7 of Criminal Law Amendment Act. Likewise, against accused Udaiveer @ Baba, Virendra Yadav and Pinki @ Saurabh, learned trial Judge has framed charge under Sections 147, 148, 302/149 of IPC and Section 7 of Criminal Law Amendment Act. Accused Kamlesh @ Guddu Mishra was also tried under Section 25/27 of the Arms Act.
6. So as to hold accused persons guilty, prosecution has examined 10 witnesses. Statements of accused persons were recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
7. By the impugned common judgment, learned trial Judge has acquitted all the accused-respondents of the offences, as mentioned in para-3 of this judgment. Hence the present appeal by the State, assailing the acquittal.
8. Learned counsel for the appellant-State submits:-
(i) that the trial Judge has erred in law in acquitting the accused-respondents.
(ii) that though there are some contradictions in the statements of two eyewitnesses, but those contradictions are immaterial and are required to be ignored.
9. We have heard Sri Amit Sinha, learned AGA for the State-appellant and perused the record.
10. Though (PW-1) Smt. Shanti Devi and (PW-2) Smt. Santoshi Devi have been examined by the prosecution as eyewitnesses to the incident, but both of them have admitted the fact that when they reached to the place of occurrence, they found Shree Krishna and Jitendra to be dead. It has also come in evidence that the distance between the place where two eyewitnesses were sitting prior to the incident and the place of occurrence is about 156 steps. It is further not disputed that only after hearing the gun shot sound, the witnesses reached to the place of occurrence and found two dead bodies there. Further, from the statement of (PW-2) Smt. Santoshi Devi, it appears that identification of the accused persons is also doubtful and Test Identification Parade has also not been conducted by the prosecution. Further, there are material contradictions in the statements of two eyewitnesses, which create doubt on their testimony and considering all these aspects of the case, learned trial Judge has not found them to be the trustworthy witnesses. That apart, even ballistic expert's report also does not support the prosecution case and it is not clear as to whether the weapon seized from accused Kamlesh @ Guddu Mishra has been used in commission of offence or not.
11. Considering all the aspects of the case, the trial Court has come to a conclusion that the prosecution has failed to prove its case against the accused-respondents; held that the accused-respondents are not guilty of the offences, as alleged and granted them benefit of doubt.
12. We have perused the entire evidence available on record and according to us, the view taken by the trial Court is one of the possible and plausible view and it cannot be said to be perverse.
13. 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 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."
14. In Sudershan Kumar v. State of Himachal, reported in (2014) 15 SCC 666 the 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, (2007) 4 SCC 415, 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."
15. 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."
16. Considering the above legal position and the factual aspects of the case, we are of the considered view that the trial Judge was fully justified in acquitting the accused-respondents.
17. 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.
Date:2.1.2020 RKK/-
(Dinesh Pathak, J) (Pritinker Diwaker, J)