Court No. - 51
Case :- GOVERNMENT APPEAL No. - 3800 of 2005
Appellant :- State Of U.P.
Respondent :- Ashok And Others
Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Om Prakash-VII,J.
Heard Sri Om Prakash Mishra, learned AGA appearing for the State on the application seeking leave to appeal against the judgment and order dated 28.05.2005, passed by Additional Session Judge, Court No.3, Bulandshahr, in Session Trial Nos.415 of 1999, under Sections 307/34 IPC, connected with Session Trial Nos.416 of 1999, under Section 25 Arms Act and Session Trial No. 417 of 1999, under Section 25 Arms Act, Police Station Khurja Nagar, District Bulandshahr, by means of which the present accused-respondent namely Assam has been acquitted of the offence under Sections 307/34 IPC as well 25 Arms Act.
Keeping in view the contention as has been raised at the Bar of this Court and has perused the grounds taken in the memo of appeal, this Courts finds that the court concerned has given cogent reasons for arriving at the finding based upon which the verdict of acquittal has been returned. The trial court has clearly observed that even though information was received when the persons were coming alongwith the looted money, but neither any money was recovered nor any weapons was recovered nor anybody has received any injury. It is further being observed by the trial court that no independent witnesses have been examined. The detailed discussions has been contained in paragraph no.7 of the judgment, which is quoted herein as under:-
“.............It has been argued by the learned counsel for the accused that information regarding the arrival of the accused at Aligarh Chack post, Khurja after looting Rs. 70,000/- from a person is said to have been received through wireless set but no public person was called to become a witness of arrest although P.W.&1 has admitted that at Aligarh chack-post, Khurja public persons were passing through; that a shot is alleged to have been fired upon the members of the police party from a close range but no public and no police personnel get any sort of injury and thereby a serious doubt is created that one of the accused fired upon the police party with intent to kill the police personnel; that one country-made pistol, one empty cartridge and one live cartridge are alleged to have been recovered from each accused but this recovery is also doubtful in as much as before taking personal search of the accused the members of the police party had not taken their personnel search nor had offered their personal search to the accused; that copy of the C.D. regarding departure of police personnel has not been filed; that no member of public was made a witness to prove the factum of recovery and that the recovered articles were not sealed on the spot as I.O has admitted in his cross examination that country made pistols and cartridges were sealed in his presence which clearly shows that nothing was done on the spot; that copy of arrest of recovery memo is alleged to have been given to the accused but no such copy was recovered from their possession when they were searched again at the police station; that in the court when the sealed articles allegedly recovered from the accused Assam alias Wicky were produced then from that sealed one country made pistol, one live cartridge and two empty cartridges were found and they have been marked wide only one live cartridge, one empty cartridge and one country made pistol are said to have been recovered from the accused Assam alias Wiky and as such recovery become doubtful. The learned counsel for the accused in support of his arguments has placed reliance in the cases of Vinod and others Vs. State of U.P., 1990 A.C.C. 9, Narsi Vs. State of Haryana, 1999 Cr. I.J. 271 (S.C.) and State of U.P. Vs. Barham Singh and others, 1993 (30) ACC 112. The learned A.D.G.C.(Crl.) has argued that since the members of the public have refused to oblige the police personnel on being asked to become the witnesses and therefore in the circumstances public persons could not be made witnesses and from the evidence factum of firing upon the police party and recovery of country made pistols, live and empty cartridges are proved. In support of his arguments he has placed reliance in the case of Karamjeet Singh Vs. State 2033 ()46) ACC 876. I do not agree with the submission of the learned ADGC(Crl.). The case law relied upon by the learned ADGC(Crl.) cannot be applied here as being based on different contextual facts and circumstances, rather there is a considerable force in the submissions of the learned counsel for the accused. It has been alleged that only no members of the police party were on petrol duty in Aligarh crossing at Khurja then they got information through R.T. Set; that two miscreants after looting Rs.70,000/- are coming in motor cycle from the side of Maman village and on this information the accused were intercepted when they reached near the check post. P.W.-1, S.I. Inderjeet Singh has admitted at page no.6 of his cross examination that when they got information about the accused then at that time members of the public were passing through but no person from public was called in. He has further stated at page no.6 of his cross examination that the firing was made from about 10 paces. The police party consisted of four members but it is very surprising that none of them received any bullet or pellet injury although it is said that the fire was made with intent to kill the members of the police party. If a firing is made from 10 paces then certainly it will hit the target. P.W.-2 constable Hargovind has deposed that this fire was done from a distance of 50 meters and there was no obstruction between the accused and the police party. There is a wide distance between 10 paces and 50 meters. Had the incident occurred really in the manner as stated by the police party then certainly this discrepancy in the statements of the witness would not have come. Both P.W.-1 and P.W.-2 have deposed that when one of the accused fired upon the members of the police party then they had not fired upon the accused. This fact also shows that no firing took place from the side of the accused otherwise in retaliation and self defence the members of the police party, who were armed with the rifles might have resorted to firing and as such factum of firing by one of the accused upon the members of the police party is found to be doubtful. It is alleged that one country made pistol, one empty cartridge from its barrel and one live cartridge were recovered from the possession of accused Assam alias Wiky but when these articles were produced in the Court in a sealed bundle and opened then it was found that in tht bundle there are 2 empty cartridges and, one country made pistol and one live cartridge. It is written in the recovery memo that the recovered articles were sealed on the spot but P.W.-3 Hetred, S.I. B.N. Lal had deposed that he had seen the articles recovered from the possession of the accuse same day because recovered articles were sealed in his presence. It is not the case of the prosecution that at the time of recovery and sealing of the articles on the spot S.I. RN. Lal was present there. The investigation was entrusted to S.I. Sri Lal only after registration of the case. As such when he says that the articles were sealed in his presence, it means that the recovered articles were not sealed on the spot as written in the recovery memo as well as stated by P.W.-1 and P.W.-2. Accordingly, a serious doubt is created about the recovery allegedly effected from the possession of both the accused persons. This Court fails to understand as to how two empty cartridges are shown to have been recovered from the possession of the accused Assam alias Wikey while in the recovery memo it is clearly mentioned that apart from one country made pistol, one live cartridge, one empty cartridge was recovered from the possession of the accused Assam. The incident is said to have taken place near B.K. Transport Company but no effort was made ot call any person from that company to become the witness of firing and recovery. The statement of P.W-1 to the effect that members of the public refused to become witnesses, cannot be believed. If any member from public had refused to assist the police personnel who are public servants in discharge of their duties then certainly legal action as contemplated under the law would have been taken against the person, who had refused to oblige the police personnel. At page No.5 of his cross examination P.W.-1 has stated that members of the public were passing through the road and they were asked to become the witnesses but they have refused. This stereo type evidence of P.W.-1 and 2 does not inspire confidence. As stated above if any person from public would have refused then certainly section 187 IPC would have been invoked against them which was not done which shows that no such incident occurred at all. The copy of departure of C.D. from police station has not been filed nor any reason there fro given. The members of the police party did not taken their personal searches before taking the personal search of the accused. Even, the accused were not offered to take the personal search of the members of the police party. It is written in the recovery memo that copy of recovery memo was suppled to each accused. P.W.-1 and P.W.-2have stated that copy of recovery memo was given to the accused and they have nowhere stated that the copies so given were thrown away by the accused persons and as such these copies must have been recovered from the possession of the accused when they were again personally searched before landing them in the police lock up but in Ex. Ka-9 it has been written that Rs.20/- from accused Assam and Rs.5/- from accused Ashok were recovered and nothing else was recovered from their possession. It clearly goes to show that even the recovery memo was not prepared on the spot and no copy of this memo was given to the accused and it has falsely been mentioned in the recovery memo that the sealed articles were sealed on the spot and recovery memo was prepared thereat. P.W.-3 (I.O.) has admitted in his cross examination that recovered articles were sealed in his presence which strengthens the fact that the recovered articles were not sealed on the spot and recovery memo was also not prepared there.
.............It is also to be noted that no looted currency notes of heist were recovered from the possession of the accused although it has been alleged that the accused were coming towards Aligarh Check-post, Khurja after looting Rs.70,000/- from a person. P.W.-1 has deposed that one sepoy had brought the motor cycle to the police station from the spot while P.W.-2 has deposed that they had asked Diwan Ji (Inderjeet Singh) to come with the motor cycle to the police station.”
After perusal of the impugned judgment which shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with.
At this stage, reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. 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: “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.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences 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. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs.
State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no interference with the impugned judgment and order of acquittal is warranted.
Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 27.10.2018/VKG