Allahabad High Court
Sudha Rani vs State Of U.P. And Another on 27 February, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:34825-DB HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl.No.2) Court No. - 67 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 91 of 2024 Appellant :- Sudha Rani Respondent :- State of U.P. and Another Counsel for Appellant :- Manoj Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Rahul Chaturvedi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Manoj Kumar Srivastava, learned counsel for the appellant at length and learned A.G.A. Perused the judgment.
2. By means of this appeal u/s 372 of Cr.P.C. the appellant is assailing the illegality and validity of the judgment and order of acquittal dated 15.12.2023 passed by the learned Additional Sessions Judge, Court No.1, Aligarh while deciding the S.T. No. 945 of 2012, (State vs. Gaurav Chaudhary and another) under Sections 302/34, 307/34, 386, 504 IPC and Section 27 Arms Act, P.S. Banna Devi, District Aligarh.
3. We have heard at length Sri Manoj Kumar Srivastava, learned counsel for appellant on the ADMISSION of the present appeal under Section 372 Cr.P.C.
4. Submission advanced by learned counsel for the appellant is that the FIR was lodged by Vipin Behari Gupta at P.S. Banna Devi, District Aligarh with allegations that during the intervening night of 4/5.7.2012 at about 1:40 in the dead hours of the night, his close relative Gagan Gupta gave a mobile call that Piyush Gupta has received gunshot injury from Gaurav Chaudhary, the proposed accused - opposite party. On the information, he inquired from his bhabhi Sudha Rani about whereabouts of Piyush Gupta. She revealed, that around 12:30 in the night Gaurav Chaudhary and Shashi Chauhan have taken away Piyush Gupta in their car to visit the factory of Vishal Godani. The informant shared the information to her bhabhi that Piyush has sustained a gunshot injury and was admitted in the Medical College, Aligarh. The rest of allegations are in the FIR.
5. After the investigation the police has submitted the charge sheet under Sections 302, 307, 386, 504 and 34 IPC and Section 27 of the Arms Act. Shashi Chauhan, the co-accused died on 17.12.2018 and therefore, the tiral against him stood abated. The prosecution witnesses have produced as many as 13 witnesses to establish the prosecution case. In addition to many other documentary evidences were also produced to establish the case beyond any shadow of doubt. After recording the statements under Section 313 Cr.P.C. in which the proposed accused has clearly disclosed that he is innocent and has been falsely implicated in the present case by connecting the evidence on record. After recording the evidences, the statement of P.W. 1, Vipin Behari Gupta, P.W. 2 Sumit Godani, P.W. 3 Dr. S.A. Zaidi, C.M.O., Medical College who are the witnesses of the fact and formal witnesses.
6. We have thoroughly perused the testimonies of the aforesaid witnesses. The incident took place in the dead hours of the intervening night of 4/5.7.2012 whereby it was mentioned that Piyush Gupta sustained a gunshot injury and this information was shared by the informant's bhabhi Sudha Rani who disclosed that Gaurav Chaudhary and Shashi Chauhan had taken her son along with close relative Gagan Gupta with them. They had taken to the deceased to the industrial area and had demanded Rs. 2,00,000/-. Meanwhile, there was a marpit between them and it is alleged that Gaurav Chaudhary and Shashi Chauhan after taking out the pistol from their possession giving a deadly blow over Piyush Gupta and by which he had received gunshot injury over his waist. There is no eye witness account to the prosecution story. No Test Identification Parade was conducted. The P.W. 3 Dr. S.A. Zaidi in his testimony has stated that the injured/deceased has received the injury on his waist mid line. The patient was unconscious and he had received a fresh injury but it seems that during treatment he succumbed to that injury and eventually died. The postmortem was conducted by Dr. Akhilesh Raj on 23.07.2012 in which he has mentioned that the deceased who has sustained surgical wound but the fact remains that the immediate cause of death is Septicemia Shock on account of firearm injury. The lungs were containing the pus pocket.
7. After going through the entire material available on record, the learned Trial Judge has evaluated the evidence in the proper perspective and has come to the conclusion that neither the recovery of the bullet nor any T.I. Parade was conducted nor there was presence of witnesses. Gagan Gupta, the most probable witness has not been examined and thus a finding was recorded that presecution have failed to establish their case beyond reasonable doubt.
8. We have considered the submissions and have perused the record.
9. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
10. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble 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."
11. 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 an order of acquittal passed by a Trial Court.
12. 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.
13. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
14. In sum and substances learned Trial Court in its verdict have clearly mentioned that in the entire prosecution case 'MOTIVE' part is completely missing. Most natural witnesses before whom the incident said to have taken places, never produced as PWs. Neither the first informant nor the mother of the deceased nor Sumit Godani have seen the incident by their eyes. Thus where the case lingers upon the circumstantial evidences, in that event the prosecution has to prove and establish the entire part of the issue, which the prosecution have miserably failed. Secondly, it has been contended that though the incident took place on 4/5.7.2012 but the deceased eventually died on 23.07.2012 on account of Septicimic shock at Max Hospital, Saket, New Delhi. Worthwhile to mention here that, soon after the incident the injured was taken to local J.L.N. Medical College, Aligarh. From Aligarh, he (injured) was shifted to Max Hospital, New Delhi for advance treatment but on 12.07.2012, he was discharged from Max, Saket, New Delhi. On 19.07.2012, he rushed to the max Hospital but could not survive and died on 23.07.2012 on account of Septicimic shock. It was urged by the counsel, that on 18.07.2012, the deceased has given his statement to the Investigating Officer. This is so called statement unsigned by the deceased and thus cannot be treated as his dying declaration. Thus, the cumulative effect of all these factors is that the learned Trial Judge in his elaborate judgment dealt every aspect of the issue which deserve no interference by the Court in exercise of power under Section 372 Cr.P.C.
15. We, therefore, find that the court below has taken a plausible and 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. We also do not find that the findings recorded by the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable, therefore, the present criminal appeal is dismissed.
Order Date :- 27.2.2024 Ashish Pd.
(Anish Kumar Gupta,J.) (Rahul Chaturvedi,J.)