Court No. - 2
Case :- GOVERNMENT APPEAL No. - 395 of 2019 Appellant :- State of U.P. Respondent :- Brajraj Alias Pappu Counsel for Appellant :- G.A.
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
1. Heard learned AGA and perused the record.
2. The appeal is directed against the judgment and order dated 17.5.2019 passed in Sessions Trial No. 46 of 2017 arsing from Case Crime No. 56 of 2017 under Sections 436, 435 and 429 I.P.C., Police Station-Chikasi, District-Hamirpur, whereby accused respondent Brajraj Alias Pappu has been acquitted.
3. Complainant Vishwanat (P.W.-1) S/o Suksa, resident of village Baderamaaf, Police Station Chikasi, District - Hamirpur lodged an FIR wherein allegation was made that quarrel had taken place between the accused Brijraj and his wife in the night of 2.3.2017. The accused came out with a galan containing kerosene oil, match box and he threatened to set fire in the village. He poured kerosene in the shop of Raj Bhadur at 1 A.M. which caused a damage of Rs.8,000/-. The accused set fire in the khalihan of Lakhan Singh and thereafter he set fire in the house of Kadhora due to which articles of Rs. 40,000 were damaged to ashes. He also set fire in the house of Deshraj, wherein, seven goats died and six goats got burn injuries. Similarly, he set fire in the house of Bhagat Singh, Vishwanath, Pramood and Devideen and many articles were burnt to ashes and caused a huge loss.
4. The case was investigated and a charge sheet was filed against the accused. The spot inspection was also prepared vide Ex. Ka-2.
5. The post mortem of the body of seven goats were also conducted. As per the post mortem report rigor mortis was found to be present on the bodies of above mentioined seven goats. The heart of the goats were found filled with blood. Liver was found to be conjested. The doctor opined that the cause of death of the goats was due to burn injuries. The charges were framed against the accused under Sections 435, 436 and 429 I.P.C. on 22.5.2017.
6. In order to prove the case, prosecution had examined seven witnesses Vishwanath (P.W.-1), Lakhan Singh (P.W.-2), Deshraj (P.W.-3), Bhagat (P.W.-4), S.I., Vedpal Singh (I.O.,) (P.W.-5), Constable Bimlesh Kumar (P.W.-6) and Dr. Upendra Pratap Singh (P.W.-7) who were alleged to be the eye witnesses. Three formal witnesses namely, Investigating Officer S.I., Vedpal Singh (P.W.-5), Constable Bimlesh Kumar (P.W.-6) and Dr. Upendra Pratap Singh (P.W.-7) were also examined.
7. The accused denied the charges framed against him in his statement recorded under Section 313 Cr.P.C. The accused had produced two witnesses namely, Ratan Singh (D.W.-1) and Parmeshwari Dayal, Lekhpal (D.W.-2) in his defence. Parmeshwari Dayal, Lekhpal (D.W.-2) has proved the extract of register No. R-40 at Ex. Kha-1 and report P-12 and extract of the report of P-12 at Ex. Kha-2.
8. Vishwanath (P.W.-1), Lakhan Singh (P.W.-2), Deshraj (P.W.-3) and Bhagat (P.W.-4) had supported the prosecution version. The four witnesses had stated that the incident took place at 1 A.M. and accused had set the shop of Raj Bahadur on fire which resulted in a damage of Rs. 8,000/-, thereafter, he set fire in the khalihan of Lakhan Singh on account of which crop of Rs.8,000/- was destroyed and the house of Kadhora was also set fire which resulted in loss of Rs.40,000/-. Thereafter, house of Deshraj was also set to fire as a result of which seven goats died and six goats got burn injuries. The accused also set fire in the houses of Bhagat Singh, Pramod and Devideen due to which huge damage took place.
9. Parmeshwari Dayal, Lekhpal (D.W.-2) had deposed that when house of Raj Bahadur, Kadhora, Deshraj, Vishwanath, Devideen and Pramood were set to fire, the villagers were sleeping. He further deposed that the villagers informed the higher authority, thereafter Lekhpal visited the site and fire brigade also reached. He had further mentioned that he received information on 2.3.2017, in the night regarding arson in the village Baderamaaf and inspected the houses, khalihan etc., of the victims and recorded their statements and he had prepared the statements in this regard and had also made entry in the Register of natural calamity ("Daivi Aapda") the extract of which is Ex. Kha-1. He also proved that he prepared report P-20 Ex. Kha-2 in his hand writing and signature.
10. The trial court had recorded findings that the fire had taken place accidentally and spread due to fast wind. P.W.-6 had mentioned that nobody had gone to police station Chikasi to lodge First Information Report. Vishwanath (P.W.-1) had stated that he went police station to lodge the report on 3.3.2017. He had given application in this regard to Darogaji but his report was not lodged. The S.I. did not visited his village thereafter he went to S.D.M., who advised him to move application before police station Sarila. From the statement of Ratan Singh (D.W.-1) it is clear that the fire had taken place accidentally and when Parmeshwari Dayal, Lekhpal (D.W.-2) visited the village the villagers did not told him about the mischief of any person regarding occurrence. The trial court had further given opinion that no witness or villagers had tried to catch the accused at the time of the occurrence. All the witnesses had stated that the accused set fire and ran away from the respective places. The trial court had lastly disbelieved statements of witnesses and after taking into account the statement of D.W.-2 and evidences, the trial court had acquitted the accused.
11. We have gone through the judgments and perused the record.
12. Parmeshwari Dayal, Lekhpal (D.W.-2) had stated that he was posted at Tehsil Chikasi as Lekhpal. He got information on 2.3.2017, in the night at about 2-3 AM regarding arson in village Baderamaaf and visited the houses and khalihan of the victims and inquired from them. Thereafter prepared the statements. He made entry in the Register of "Daivi Aapda" which was signed by him. In the cross-examination, this witness had deposed that victims did not tell him that the accused had burnt their houses, he had deposed that the fire had taken place accidentally and spread out due to fast wind. In his cross-examination, no unnatural thing came out from his statement and his statement is reliable.
13. P.W.-6 had mentioned that no one had gone to police station to lodge the FIR, whereas, P.W.-1 Vishwanath had deposed that he went to police station for lodging the report on 3.3.2017. From the statement of D.W-1, it is clear that the fire had taken place accidentally and when Lekhpal (D.W.-2) had visited the village, the villagers and witnesses did not told him regarding the occurrence. The occurrence had taken place in the night of 2.3.2017 and FIR was lodged on 8.3.2017. There was delay in lodging the FIR and no satisfactory explanation has been furnished as to why the FIR was lodged belatedly.
14. Parmeshwari Dayal, Lekhpal (D.W.-2) had further mentioned that victims had visited the police station and they had given their respective applications about the incident. Several applications were given regarding the incident and those applications were not brought on record, therefore, Tehrir at Ex. Ka-1 looses its corroborative value. It is unnatural that accused burnt khalihan, houses and shop and he could not be caught by any villager and neither match box nor galan of kerosene was recovered from the place of occurrence or from the possession of accused- respondent by the Investigating Officer. Parmeshwari Dayal, Lekhpal (D.W.-2) had stated that the fire was set accidentally and compensation vide "Daivi Aapda" was given to villagers.
15. Considering the inconsistency, improvement, contradiction and also the fact that essential ingredients to constitute the offence charged against the accused is not found to be proved beyond reasonable doubt, we are of the view that the view taken by the trial court is possible view.
16. While dealing with the scope of the appellate court a Division Bench of this Court in State of U.P. Vs. Surendra Singh [Government Appeal No. 511 of 2019, decided on 20 January 2020] observed as under:
“12. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;-
"31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -
"37. In Chandrappa v. State of Karnataka, this Court held: ( SCC p. 432 para 42), (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 emphasise 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."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
13. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under : "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."
17. In view thereof, application (Leave to Appeal) is rejected. Consequently, Government Appeal is also dismissed.
Order Date :- 28.10.2021 Md Faisal
(Brij Raj Singh, J. ) (Suneet Kumar, J.)