Court No. - 51
Case :- GOVERNMENT APPEAL No. - 5678 of 2002 Appellant :- State Of U.P.
Respondent :- Dev Sadan Singh Urf Kallu Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Arun Kumar Singh, learned A.G.A. appearing for the State on the application seeking leave to appeal against the judgment and order dated 27.8.2002 passed by learned Additional Sessions Judge, court No. 7, Kanpur Dehat in Sessions Trial No. 274 of 2001 (State of U.P. vs. Dev Sadan Singh Urf Kallu) arising out of Case Crime No. 53 of 1998, by means of which the accused-respondent has been acquitted of the offences under section 307 IPC.
The first informant in the present case is Dev Sadan Singh @ Kallu, who has lodged the first information report on 22.4.1998 at about 8.05 p.m. in the night with regard to an incident said to have taken place on 22.4.1998 itself at about 2.00 p.m. The FIR was lodged with the allegations that the accused had come to the house of the informant and fired at him with his licenced double barrel gun, but it did not hit the informant and instead three small girls Lado, Jyoti and Sandhya, who were sitting near him have received pellets injuries; that the incident was seen by Neeraj Singh son of first informant and Smt. Vimla Devi and number of other people of the locality, who have gathered at the spot. At this stage itself it may be noted that as far as the accused- respondent, Dev Sadan Singh @ Kallu is concerned, he happens to be the brother of first informant.
In the statement under Section 313 Cr.P.C. a specific stand/defence was taken by the accused- respondent that he has been falsely implicated on account of enmity; that the son of the first informant, Neeraj Singh was cleaning and repairing a Tamancha, which got fired as a result of which the girls have received pellets injuries. The prosecution in support of his case has examined PW-1, Dev Sadan Singh, the first informant as well as PW-2, Km. Sandhya, who happens to be the daughter of one Balram, who lives in separate house.
The court concerned after going through the entire evidence on record has recorded categorical finding to the effect that both the accused as well as first informant are real brothers; that they have been living separately admittedly for the last eight to nine years; that in view of the testimony of both the witnesses, the place of occurrence is not definite; it is also stated that the investigation is also defective; the Investigating Officer says that the two shots were fired, whereas PW-1 and PW-2 says that only one shot was fired. Further contention is that the accused is an ex-army man and he could not have missed the target and he has also not fired in the presence of small children, who were playing; that there are vast contradictions with regard to the nature of injuries of Sandhya and Jyoti viz a viz in the doctors testimony of Dr. R.K. Singh,who has been examined as PW-5; the court has further observed that there are contradictions in the testimony of PW-1 and PW-2. PW-2 at the time of incident was a young girl (minor) aged about six years old; that as per the prosecution case itself there are as many as fifteen cases pending against the first informant,i.e. pertaining to loot, dacoity and attempt to murder; that previous enmity exits with regard to the partition of the family property and it is also come on record that the accused after retiring from the Army had received a heavy amount as retiral benefits and the same was not being partitioned or given to the first informant, whereas it has come on record that while in service he had been sending some money to the family members of the first informant. Further finding is that the investigation was not fair and is not in the nature of independent investigation. The weapon said to be used i.e. double barrel gun was never sent for any ballistic expert opinion nor was produced before the court concerned. Independent witnesses were preset at the place of occurrence as per the prosecution case itself and as per the FIR, but they were not produced nor examined.
We have heard Sri Arun Kumar Singh at great length and keeping in view the contention as has been raised by learned A.G.A. at the bar of this Court. Keeping in view the ground taken in the memo of appeal, the court proceeds to examined and observe and the findings as has been recorded by the court concerned.
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.
In view of the aforesaid facts and circumstances of the case, it cannot be said that the view taken by the Court below is not possible and plausible thus the judgment of the court below cannot be interfered with by this Court only on account of the fact that another view is possible.
Learned A.G.A. has not been able to point out any illegality or perversity with the findings as recorded by the court below and thus it cannot be said that the view taken by trial court is a perverse view.
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 case for interference has been made out. No interference with the impugned judgment and order of acquittal is warranted. Accordingly the application seeking leave to appeal is rejected. Consequently, appeal is also dismissed.
Let a copy of this order be certified to the court concerned for necessary compliance.
Order Date :- 17.9.2018 Sumaira