Allahabad High Court
State Of U.P. vs Attar Singh S/O Paatiram And 10 Others on 12 September, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- GOVERNMENT APPEAL No. - 561 of 2022 Appellant :- State of U.P. Respondent :- Attar Singh S/O Paatiram And 10 Others Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Ms. Nand Prabha Shukla, 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 09.06.2022 passed by the Additional District & Sessions Judge, Court No.6/ Learned Special Judge (Daocity Affected Area), Firozabad in Session Trial No. 94 of 2000 (State of U.P. Vs. Attar Singh and 12 others) arising out of Case Crime No. 134 of 1992, under Sections 395, 332, 336 IPC and Section 7 Crl. Law Amendment Act, P.S. Tundla, District Firozabad, whereby the accused has been acquitted from the charges under Sections 395, 332, 336 IPC and Section 7 Crl. Law Amendment Act.
3. Prosecution story, in nutshell is that the complainant S.I. Pramod Kumar Kureel gave a report to the police station concerned that on 23.02.1992 on the application of Umed Singh son of Karan Singh and Nand Kishore son of Buddhasen, r/o Village Bhaktigarh regarding quarrel for not allowing to cut the mustard crop from the field of Umed Singh by one Attar Singh and others. When objected S.I. Pramod Kumar Kureel along with other police officials armed with their respective weapons, reached on the spot for investigation where Umed Singh and Nand Kishore were getting the mustard crop cut by their labours who were 50-60 in numbers. In the meantime opposite parties came to the spot with ill intention along with sticks, axes, bricks & stones in their hands and started assaulted upon Umed Singh and his labours. The complainant along with police officials tried to conciliate the matter but the opposite parties did not agree to wriggle out the issue. Then only complainant stopped Umed Singh from harvesting the crop. In this transaction Umed Singh got injured and when the complainant was returned from the spot the accused persons chased and dragged the one injured person namely, Bhagwati and started beating with intention to kill him. At the time when the complainant alongwith police party tried to save the injured persons, the opposite parties surrounded the police station and committing maar peet with the police personnel and snatched the service revolver of the complainant. On the aforesaid prosecution story case was registered against the accused persons bearing case crime no. 134 of 1992 under Section 392, 332 and 336 IPC and Section 7 of Crl. Law Amendment Act. After lodging of the FIR, the Investigation Officer of the case has started the investigation and submitted the charge sheet under Sections 392, 332 and 336 IPC and Section 7 of Crl. Law Amendment Act against the accused respondents/opposite parties.
4. In support of prosecution case, PW-1, namely, Mohan Lal, PW-2 Ramesh Kumar, PW-3 Hari Singh, PW-4 Kunwar Singh and PW-5 Sub-Inspector Pramod Kumar Kureel were produced and examined before the Court below.
5. The judgement of acquittal was passed by the Court below on the ground that prosecution has failed to prove its case that any such incident has taken place. The Court found that though the allegation is about the attack by the accused persons on the police party, however looted service revolver live cartridges and Holester was neither shown to be recovered nor was produced in the court. No recovery memo was prepared and therefore its recovery has not been proved. The Court also found that although allegation is that about 50-55 unidentified persons attacked upon the police personnel with their weapons, namely, Kularhi, lathi and danda and apart from injuries received, the official uniform of the police personnel were also damaged and torned. However, nothing was recovered and produced in the evidence. So far as the injuries of PW-5 is concerned, it was found that all the alleged seven injuries are simple in nature and even this injury report was not certified or supported by any cogent evidence. The court below also found that the stand taken by the PW-5 was not supported by any other witnesses. The Court found that the allegation is that one Pramod Kumar Kureel was appointed as receiver and the police party has accompanied him in respect of property where such incident alleged took place, however, there is neither any document regarding appointment of receiver of property nor any report regarding the tussle between the parties has been produced before the court below. The prosecution has failed to prove that accused persons have obstructed the police party from discharging their official duties.
6. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that the judgment is perverse in nature and accused persons have attacked the police party and obstructed them in discharging their official duties, therefore the judgment is liable to be set aside and reversed.
7. We have considered the submissions and have perused the record.
8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
9. 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"
10. 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.
11. 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.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record, we find that the trial court has framed four points for determination, however, the prosecution has failed to prove any of the such points and other facts. It is alleged that large number of persons i.e. about 50-55 unidentified persons have attacked the police personnel, when the police personnel were discharging their official duties by accompanying the official receiver. Further, it is alleged that official revolver, 24 live cartridges and Holester was looted by the accused persons and the service revolver was recovered after six days which was also allegedly used by the accused person in some other offence, however such use and recovery thereof could not be proved. No recovery memo of service revolver was made by the police and such recovery was also not produced before the court. The injuries alleged suffered were extremely superficial in nature. All the witnesses are highly interested witnesses and police personnel and all the four witnesses of fact turned hostile. None of the weapon allegedly used in the crime was recovered by the police and exhibited. In such view of the matter, we 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.
14. 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.
Order Date :- 12.9.2022 Abhishek Sri.