Allahabad High Court
Indrapal Singh Yadav vs State Of U.P. And 6 Others on 14 November, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1274 of 2022 Appellant :- Indrapal Singh Yadav Respondent :- State Of U.P. And 6 Others Counsel for Appellant :- Sunil Kumar Yadav Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
1. Heard Sunil Kumar Yadav, learned counsel for the appellant and Sri Ratan Singh, learned AGA appearing for the State of UP and perused the record.
2. This is an appeal u/s 372 of the Code of Criminal Procedure (Cr.P.C.) assailing the legality and validity of the judgement and order dated 20.7.2022 whereby the Additional District & Sessions Judge, Court No. 6/Special Judge (D.A.A.), Firozabad while deciding the Special Sessions Trial No. 281 of 2015 (State vs. Fobin and others) (arising out of Case Crime No. 877 of 2014, under Section 396 IPC, PS Sikohabad, District Firozabad) has acquitted the accused persons from the charges under Section 396 IPC.
3. Before coming to the merit of the case, it is imperative to give a bare skeleton facts, which has given rise to the present appeal.
PROSECUTION STORY :
4. The prosecution story in nutshell is that the informant Indrapal Singh lodged a first information report mentioning therein that during the intervening night of 21/22.10.2014 around 12:45 pm the informant was present in his house and he along with his brother Anand Pal, bhabi (sister-in-law) Smt. Urmila Devi and his nephew Vikas was sleeping in the courtyard. All of a sudden there was a sound of screaming, he woke up and saw that Jugesh Yadav, Yogendra Yadav, Devendra, Raispal, Rahul, all are residents of Nagla Turki, PS Jasrana and Ram Autar, PS Madhipur and two unknown persons armed with iron rod and iron pipe mercilessly assaulted upon Anandpal, bhabhi Urmila Devi and his nephew Vikas. Thereafter, the informant raised an alarm and all the assailants fled away from the spot. The informant identified the assailants in the light of inverter and the injured referred to Trauma Centre, Firozabad whereby en-route Anandpal took his last breath and died accordingly. A case Crime No. 877 of 2014 was registered under Sections 147, 452, 307, 302 IPC and the Investigating Officer after investigation submitted the charge-sheet under Section 396 IPC against Yusuf @ Kaliya @ Razi @ Yunus, Taukir @ Chairman, Munish, Deni, Sherakhan @ Nazim, Sajid @ Bittu, Jogesh Yadav, Yogendra, Devendra, Raispal, Rahul and Ram Autar, completely new set of accused persons, dropping the named persons, mentioned in the FIR.
5. It is contended by learned counsel for the appellant that in order to establish the prosecution case, PW-1 Indrapal Singh, PW-2 Dinesh Kumar Verma, PW-3 CP Omveer Singh, PW-4 Dr. Naseem Ahmad, PW-5 Prakash Chandra Yadav, PW-6 SI Pramod Kumar were examined and certain document were exhibited before the court concerned. In addition to this, the prosecution produced certain documents, which were exhibited during the trial as under:
(i) Tehrir as Ext. Ka-1, (ii) Panchayat Nama Ext. Ka-2 (iii) Panchayat Nama (re-attested) Ext. Ka-2 (iv) Letter RI Ext. Ka-3 (v) Letter CMO Ext. Ka-4 (v) Photo Ext. Ka-5 (vi) Chalan Ext. Ka-6 (vii) Chik first information report Ext. Ka-7 (viii) GD Ext. Ka-8 (ix) Post-mortem report Ext. Ka-9 (x) Charge-sheet Ext. Ka-10 (xi) Site plan Ext. Ka-11 (xii) mud with blood stained Ext. Ka-12.
6. Sri Sunil Kumar Yadav, learned counsel for the appellant has contended that the Investigating Officer has completely dropped the name of the accused persons and has substituted by new set of accused persons in the charge-sheet and converting the section, the charge-sheet was submitted under Section 396 IPC against the newly inserted accused persons.
7. Being a cognizable offence and after completing the necessary procedural formalities, the matter was remitted to the court of sessions for trial and accordingly on 25.2.2016 the learned Sessions Judge has framed the charges against Jogesh Yadav, Yogendra, Devendra, Raispal, Rahul and Ram Autar under Section 396 IPC which they have denied and insisted for their trial.
8. It has been pointed out that the named accused persons in the first information report were summoned in exercise of power under Section 319 Cr.P.C. to face the trial.
9. All the accused persons in their respective statement have declined the prosecution story to the Court and submitted that their involvement is a tailored one and they have never committed any offence whatsoever.
10. Learned counsel for the appellant has assailed the legality and validity of the impugned order by contending that the the learned Sessions Judge has not considered the oral and documentary evidence adduced the prosecution and has wrongly appreciated the evidence produced by the prosecution. It is next contended that the trial Court has not considered the aspect that the offence under Section 302 IPC was converted in under Section 396 IPC and the trial Court illegally acquitted the accused persons. It is contended that the learned trial Judge has not considered the facts and circumstances of the case properly, therefore, the order impugned herein is illegal, arbitrary and perverse and it is liable to be quashed.
11. We have keenly perused the judgement under challenge and heard the submissions advanced by the learned counsels in support of the appeal.
12. After having keen perusal of the judgement, it is abundantly clear that there is no allegation of dacoity in the first information report. The first information report was itself registered under Section 147, 452, 307, 302 IPC but the Investigating Officer of the case has submitted the charge-sheet under Section 396 IPC, against the new set of accused persons dropping the name of original named accused persons and the charges were also framed against the new set of accused persons under Section 396 IPC. At this juncture too, the informant has never objected for wrong framing of the charges even at the stage of section 319 Cr.P.C. there was no whisper whatsoever for framing the charges under the different sections of IPC and the entire trial was under Section 396 IPC. Section 396 IPC is quoted as under:
"Section 396 IPC- If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or [imprisonment for life] rigorous imprisonment for a term which may extend to ten years, and shall be liable to fine."
13. From the aforesaid it is clear that application under Section 396 of 'Dacoity' is sine qua non and essential ingredients of attracting the aforesaid penal provisions.
14. There is no whisper of any dacoity in the first information report and therefore, the learned trial Judge has rightly come to the conclusion that neither there is any allegation of dacoity, thus there cannot be any question of recovery of looted articles from the possession of the accused persons and have rightly acquitted the named accuse persons from the charges under Section 396 IPC.
15. Now coming to another limb of the argument advanced by the learned counsel for the appellant is applicability of 302 IPC. It is abundantly clear that in addition to one deceased Anand Pal, Smt. Urmila Devi and his son Vikas were also got injured in this transaction. The prosecution at no stage has produced the witnesses who are most natural witnesses of the incident to establish Section 302/307 IPC. Moreover, there is no means rea of motive had ever come for committing the crime under Sections 302/307 IPC. Initially partition dispute was shown as the cause but after much delay of almost five years suggestion was floated by the witnesses regarding money transactions between the contesting parties. The Court is unable to swallow this casual suggestion advanced by the learned counsel for the appellant.
16. We are of the considered opinion that findings recorded by the trial Court are sound and we are in complete agreement with the findings recorded that the prosecution has miserably failed to prove any case or means rea attracted under Sections 302/307 IPC. The reasonings adopted by the learned trial court does not warrant any interference or reversal in exercise of power under Section 372 Cr.P.C.
Legal Discussion :-
17. After hearing the rival submissions, the Court has got occasion to lay its hands on the latest judgements relating to scope and ambit of Sections 378 and 386 of the Code of Criminal Procedure, which speak about appeal against acquittal.
18. In the case of Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471, while thrashing the earlier judgements, the Hon'ble Apex Court has held as under :
"24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
"6. ....In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:
"7. ..... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa vs. State of Karnataka (2007) 4 SCC 415) :
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(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 emphasize 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."
19. Similarly in Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, the Hon'ble Supreme Court has been pleased to discuss the scope of the High Court to interfere in an appeal against an order of acquittal passed by a Trial Court, and in paragraph-10 it has been held that :
"10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that:
"13......The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt."
20. In the same chain the Hon'ble Apex Court in Jayamma and another vs. State of Karnataka, (2021) 6 SCC 213, has considered the law on the issue involved and observed thus:
"23. The other important reason to depart from the High Court's view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
21. Taking into account the totality of circumstances and taking the guidance from above citations, we do not feel that there is any legal infirmity in the order impugned and this appeal is devoid of merit.
22. Accordingly, present appeal stands dismissed at the admission stage itself.
Order Date :- 14.11.2022 Abhishek