Allahabad High Court
State Of U.P. vs Satish Kumar Keshari And 4 Ors. on 28 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- GOVERNMENT APPEAL No. - 447 of 2022 Appellant :- State of U.P. Respondent :- Satish Kumar Keshari And 4 Ors. Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla, J.
Hon'ble Vikas Budhwar, 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 30.11.2018 passed by the Special Judge (SC/ST Act), Sonbhadra in Special Sessions Trial No. 35 of 2009 (State vs. Satish Kumar Keshari and others) arising out of Case Crime No. 84 of 2009, under Sections 147, 304, 504, 506 IPC and Section 3 (2)(5) of SC/ST Act, P.S. Robertsganj, District Sonbhadra, whereby accused respondents no. 1, 4 and 5 have been acquitted from the charges under Sections 304, 504, 506 IPC read with Section 3 (2)(5) of SC/ST Act and accused respondents no. 2 and 3 have been acquitted from the charges under Sections 304, 504, 506 IPC.
3. Prosecution story, in brief, is that the complainant Rajan gave a written information dated 24.1.2009 at the police station stating therein that on 8.7.2008 at about 10:00 pm in the night, his brother Ajit Kumar @ Gopal was going to his house and when he reached near Vijaigarh Cinema Hall, the accused persons in drunken condition abused his brother with caste indicative and filthy language and beat him with lathi and danda as well as fists and kicks and on hue and cry of his brother, Yogendra Kumar and other persons reached there and due to the aforesaid assault, his brother received grievous injuries. After giving information to the police station, he took his brother to BHU, Varanasi for treatment where during treatment he died on 24.1.2009 at about 8:00 am due to the injuries caused by the accused persons. On the basis of written information, a first information reported was lodged being Case Crime No. 84 of 2009, under Sections 147, 304, 504, 506 IPC and Section 3 (2)(5) of SC/ST Act, P.S. Robertsganj, District Sonbhadra and after investigation, a charge-sheet was submitted against the accused persons.
4. In support of prosecution case, PW-1 Sajan Sonkar, PW-2 Yogendra Prasad, PW-3 Vinod Sonkar, PW-4 Rajnath Sonkar, PW-5 Dr. Anil Kumar Sharma, PW-6 Dr. Ashok Kumar Gupta, PW-7 IO Shakilujjma were produced and examined before the Court below. One Vinay Kumar, Pharmacist, District Hospital, Sonbhadra was also examined as CW-1.
5. The judgement of acquittal was passed on the ground that injuries suffered by the deceased in the alleged incident dated 8.7.2008 could not be connected with the accused persons and there is a material difference in the injuries suffered by the deceased in the alleged incident dated 8.7.2008 whereas in the post-mortem report right side fracture in his skull was shown whereas such injury was not mentioned in the medical certificate (Ex. Ka5). It is also not in dispute that after the incident dated 8.7.2008 he was referred from District Hospital, Robertsganj to BHU on 13.7.2008 and was discharged on 14.7.2008. That apart, all the injuries were reported to be simple in nature and he was under treatment for about six months. The cause of death as per post-mortem report is cranial surgery that the deceased had gone into Coma due cranial surgery and evidence of performance of brain surgery was available as per post-mortem report. On these grounds, the Court below found that the prosecution could not prove his case beyond doubt and the accused persons were given benefit of doubt and judgement of acquittal was passed.
6. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that there was cogent evidence to convict the accused persons herein. She next submits that there is evidence of the incident dated 8.7.2008 and the deceased was medically examined and medical report is also on record. She, however, submits that even though the deceased was under treatment for a period of about six months but the injuries are directly connected to the cause of death. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.
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 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 PW-1 Sajan Sonkar (real brother of the deceased) had admitted that initially an NCR was registered and his brother suffered 3-4 injuries and was referred to BHU from Robertsganj Hospital on 13.7.2008 and was discharged from BHU on the very next date i.e. 14.7.2008. Admittedly, he is not an eyewitness and he clearly stated in the cross-examination that he cannot say as to who was carrying lathi and danda in the alleged incident. He also admitted that the deceased was under treatment for six months. PW-5 Dr. Anil Kumar who examined the injured on 8.7.2008 had opined that all the injuries were simple in nature and injury no. 1 could have been caused with blunt object and injuries no. 2 and 3 could have been caused due to fiction. PW-5 in cross-examination admitted that he found that all the injuries were simple in nature and therefore, he did not suggest Xray of injuries and he would definitely have suggested Xray as injuries being serious in nature. As per post-mortem report, evidence of performance of brain surgery is on record and one injury i.e. on the right side fracture on the skull is not connected with the injury report dated 8.7.2008. In such view of the matter, we, therefore, find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court 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 :- 28.7.2022 Abhishek