Court No. - 51
Case :- GOVERNMENT APPEAL No. - 3810 of 2005
Appellant :- State Of U.P. Respondent :- Haneef And Others
Counsel for Appellant :- Govt. Advocate
Hon'ble Vipin Sinha,J. Hon'ble Om Prakash-VII,J.
Heard Sri Mohd. Nadeem, learned AGA appearing for the State on the application seeking leave to appeal against the judgment and order dated 20.05.2005, passed by Additional Session Judge, Court No.7, Shahjahanpur, in Session Trial No.174 of 2002, arising out of Case Crime No.159 of 1999, under Section 307/34, 504 and 506, IPC, Police Station Khudaganj, District Shahjahanpur, by means of which the present accused-respondent namely Haneef, Nabir, Rasitullah and Sabibullah, have been acquitted of the offence under Section 307/34, 504 and 506, IPC.
We have heard the counsel for the applicant at length and 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 learned AGA has failed to point out any illegality or perversity with the finding as has been recorded. Thus by no such imagination it can be said that the view taken by the court below is not a possible or a plausible view. In support of the findings the trial court has observed herein as under. Some of the relevant observations are being extracted herein below:-
“---------Not only this, the evidence of P.W.-2 is further inconsistent with the contents of FIR with regard to the presence of the witnesses, who were armed as Shri Nazir Ali and Shri Qarar Ali in the FIR. P.W.-2 Insar Ali has not disclosed in his examination-in-chief that any witness was working in his or in any other nearby field but in his cross-examination, he has stated that Shri Zakir Ali and Shri Qadir Ali were harvesting the sugar cane crop in a nearby field. This statement is however, not figured in his statement under Section 161 Cr.P.C. The site- plan also negatives the presence of Shri Zakir Ali and Shri Qadir Ali in any nearby field. The identify of the witnesses whether they were Nazir Ali or Shri Qarer Ali or whether they were Shri Zakir Ali or Shri Qadir Ali is not clarified similarly, it is not explained whether they were working with the complainant in his own field or they were away in some nearby field. This discrepancy has also erupted in the evidence of Shri Insar Ali, P.W.-2. The prosecution has not made any attempt to clear these ambiguities. For these reasons, I consider it not safe to rely even on the testimony of these witnesses.
---------The learned defence counsel has vehemently argued that serious contradictions and discrepancies prevail among the statements of the prosecution witnesses and they are fatal to the credibility of the prosecution case. I have carefully perused the entire evidence and I have no option but to agree with this submission. To illustrate my conclusion, it would be useful to quote that in the FIR, the incident in question was shown to have occurred at 4.30 p.m. As against it P.W.-1 tells that the same occurred at 4.00 p.m., P.W.-2 Shri Insar Ai and P.W.-3 Shri Sikandar Ali stated the time of incident at 5 O’clock.
---------In the FIR it was stated that Shri Nazir Ali and Shri Qarar Ali were working in the field of the complainant. P.W.-1 Shri Faryad Ali Supports this content of the FIR but the evidence of P.W.-2 is absolutely silent on the presence of Shri Nazir Ali and Shri Qarar Ali in his field. Contrary to the above, he has stated that Shri Zakir Ali and Shri Qadir Ali were working in a nearby field. As against the above P.W.-3 says that Shri Qarar Ali was present in a nearby field. In the FIR it was simply stated that the accused opened fires from the distance of 10 paces but P.W.-1 added in his evidence that the accused had exhorted to surround and kill. This statement is not supported by P.W.-2 as he simply stated that the accused appeared from the sugar cant field hurling abuses and started firing.
---------In the FIR there was no mention that Shri Sikandar Ali sustained injury. This was also not stated by P.W.-2 that his brother Shri Sikandar Ali sustained injury but P.W.-1 and P.W.-3 stated that Shri Sikandar had sustained ‘Bahka’ blow. In FIR and the statement of P.W.-1 it was stated that Shri Nazir Ali and Shri Qarar Ali arrived at the place of occurrence. P.W.-3 does not name anybody who rushed to the place of occurrence. Regarding the subsequent conduct of the accused, it was mentioned in the FIR that the accused left the scene after hurling abuses and threat to kill him in future. This part of FIR was not proved by its author P.W.-1 in his examination-in-chief and he has introduced altogether a new thing. The evidence of P.W.-2 and P.W.-3 on this point is also different. Lastly, the discrepancy regarding the nature and kind of weapons possessed by the alleged assailants is also glaring. Each of the witness differ with other to the extent that they have assigned different weapons and objects which is contrary to the contents of FIR.
---------The learned defence counsel’s argument cannot be thrown apart that these discrepancies are of serious nature and they are fatal to the prosecution case when the entire episode has been seriously challenged. In this case, the three witnesses affect are inimical towards the accused, highly interested and partisan. Their evidence has been found suffering from discrepancy, inconsistencies and deliberate improvement. In short the evidence is found fully reliable. In may opinion, corroboration of the testimony of these witnesses was highly required. Though, the prosecution alleges the presence of several witnesses and few of them have been cited in the chargesheet but none of them has been examined before this Court. No explanation of their non-examination has either been given. The result is that these interested and articulated version of the prosecution has not been proved by the independent and impartial witnesses despite their proclaimed presence. As such it would not be unfair to raise an adverse inference against the prosecution that they have with- held the material evidence from the Court.
---------The defence has seriously challenged the place of occurrence. It has consistently pleaded that the incident did not occur at the place which has been shown by the prosecution. From the very beginning the defence has brought a definite case that Shri Insar Ali was dealing with his tamancha in a field belonging to one Some Lal Nat of village phulwaiya adjoining to the agricultural field of village Akbari. There the tamancha accidentally went off and he sustained injuries. This various of the defence is provd by D.W.-1 Shri Jabir Ali and DW.-2 Shri Matloob Khan. Shri Jabir Ali has claimed himself as Shri Faryad Ali’s brother whereas Shri Matloob Khan claims Shri Faryad Ali as his ‘Phup era Behnoi’ Clear suggestions were given to the prosecution witnesses that the incident of accidental firing occurred in Sone Lal Nat’s field and no weakness has been elevated in the evidence of two defence witnesses. I therefore, do not find any reason to disbelieve their evidence. The place of occurrence becomes further doubtful as the I.O. had not found any blood at the scene of occurrence though Shri Isar Ali got injured. Blood was oozing out from his injuries noted by Dr. N. K. Mishra. He had fell down on the ground as per P.W.-1. Some time would have been consumed to bring the cot from the village Abadi which was loomed at the distance of about half mile. In the meanwhile the injured Insar Ali would have been lying in the same field. Naturally, some part of blood should have stained the cane leaves or the ground but no such blood was found or seized. Similarly, no evidence of fires like empties, waddings and pellets were found at the scene of occurrence. Similarly, the statement of the I.O. is altogether different from other prosecution evidence as the I.O. has stated that the place of occurrence was field adjoining to a field which was adjacent to a trench whereas the remaining prosecution witnesses specified that the field in question was located at the distance of about half kilo meters from the village. In short, the place of occurrence is highly doubtful.
---------Since, the defence has brought an alternative case and has adduced evidence to prove the same, I am satisfied that the defence has succeeded to created reasonable doubt in the truthfulness of the prosecution case. The prosecution evidence has been found not fully reliable. The presence of P.W.-1 and P.W.-3 has not been established beyond reasonable doubt. They did not appear to be eye witnesses of the incident. The evidence of P.W.-2 Shri Insar Ali is not computable with medical evidence and attending circumstances. The link evidence is missing which makes the prosecution case doubtful and improbable. The evidence suffers from contradictions and discrepancies. Non examination of independent witnesses is also an infirmity in the prosecution case. The place and manner of occurrence are also found doubtful. There was no motive to commit the offence. In short the cumulative effect of all these weaknesses brings the prosecution case in the realm of suspicion and doubt. I a confined that the prosecution has failed to prove his case. The accused are therefore, found not guilty of the charges under Section 307/34, 504 and 506 IPC and they are accordingly entitled to be acquitted of the above charge.”
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:
1. 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) 1 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, (20 1) 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