Court No. - 51
Case :- GOVERNMENT APPEAL No. - 1800 of 1992 Appellant :- State Of U.P. Respondent :- Girraj And Others Counsel for Appellant :- A.G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned A.G.A. appearing for the State on the application seeking leave to appeal against the judgment and order dated 26.3.1992 passed by learned Additional Sessions Judge-V, Agra, by means of which, the accused- respondents have been acquitted in Sessions Trial No. 271 of 1988.
So far as accused-respondent Nos. 1 and 2, namely Girraj and Suresh are concerned they had been acquitted of the offence under Sections 148, 307/149, 323/149 IPC. So far as the other accused- respondents are concerned, namely, Bijjo, Ram Khiladi, Buddha Ram and Har Bilas, they have been acquitted of the offence under Sections 147, 307/149, 323/149 IPC. Accused-respondent No. 5, had already expired during the pendency of trial itself.
The first information report in the present case was lodged by one Shital Prasad, who himself is the victim of the case and he submitted that he had received pellets injuries as well as other injuries. The occurrence is of 7.6.1987 at about 9.00 p.m., whereas the first information report was lodged on 7.6.1987 at about 10.10 p.m. The incident in question took place with regard to the throwing of mud balls at the residence of complainant and when the victim has objected throwing of the mud balls, he was assaulted by all the accused persons.
The witnesses named in the first information report are Kishan Singh, who is injured witness as mentioned in the first information report, Suraj, Badley, Bissa Ram, Raghuvir Singh and Munni Ram. Description of the first information report as per prosecution only one witness PW-1 Shital Prasad and PW-2 Suraj.
The scribe of the first information report as per prosecution is one Ishwari Prasad, who has not been examined. The prosecution has only examined two witnesses, PW-1 Sheetal Prasad, PW-2 Suraj.
After going through the entire evidence on record, the court concerned has given cogent reasons for arriving at the findings as have been arrived at while returning the verdict of acquittal and the same can be enumerated herein below:-
A. Sheetal Prasad had become unconscious immediately after the occurrence as corroborated by PW-4, Suraj, hence he was not in a position to have dictated the report or narrated the facts to Ishwari Prasad, the scribe of the FIR. Ishwari Prasad was never examined. The FIR was not dictated by Sheetal Prasad, injured and moreover, it is ante timed, thus there is no credibility, which can be attributed to the FIR.
B. There are material contradictions in the testimony of PW-1 with regard to the weapon as assigned to each of the accused, which is mentioned in paragraph No. 8 of the judgment viz a viz in the first information report.
C. Suraj, who has been examined as PW-2 was declared hostile, but even otherwise he does not support the prosecution story and nothing appears to be doubtful, the discussion is in paragraph No. 9 of the judgment.
D. Kishan Singh as per the prosecution has also received injuries in the said incident, who was supposed to be the star witness, has not been examined.
The court has further contended that the investigation done by the Investigating Officer is not proper inasmuch as sufficient delay of twenty days has been caused in recording the statements of the witnesses under Section 161 Cr.P.C. and thus based upon the said reasoning the verdict of acquittal has been returned.
We have heard Sri Rajesh Mishra 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 examine and observe 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