Court No. - 51
Case :- GOVERNMENT APPEAL No. - 5671 of 2002 Appellant :- State Of U.P.
Respondent :- Tara Chand & Others Counsel for Appellant :- Govt. Advocate
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 10.9.2002 passed by learned Sessions Judge, Meerut in Sessions Trial No. 1233 of 1988 (State vs. Tara Chand and two others) connected with Sessions Trial No. 1220 of 2000 (State vs. Manoj), by means of which the accused-respondents have been acquitted of the offences under section 307/34 IPC.
In the present case there are four accused- respondents, namely, Tara Chand, Omkar, Suresh and Manoj. So far as accused-respondent, No. 1 and 2 Tara Chand and Omkar are concerned, they are brothers. In the FIR Omkar has been assigned the role of carrying a lathi, Manoj danda and Suresh an iron rod. At this stage itself it may be noted that as far as Manoj is concerned, he happens to be the son of Tara Chand and so far as Suresh is concerned, he happens to be a relative of accused-respondents No. 1 and 2.
The first information report in this case was lodged by one Kalicharan, who has been examined as PW-
1 with regard to an incident said to have taken place on 10.10.1999 at about 10.30 p.m. All the accused persons have been named in the first information report itself. It has been contended that Kalicharan had done the job of white washing in the house of accused-respondents and when he demanded the wages it was not paid and he was assaulted. This was the reason given for the crimes, which is said to have occurred. The court after going through the entire evidence on record and having gone through the testimony prosecution witnesses have observed hereunder:-
A. The prosecution has not proved any x-ray report or x-ray plate of Kalicharan, thus this shows that the medical evidence does not corroborate the prosecution case and the occurrence has not taken place in the manner as alleged by the prosecution.
B. That the sole testimony of PW-1, who is the first informant as well as the victim cannot be believed as it contained material contradictions.
C. All the accused-persons were arrested by the police just after one day of the incident from their houses, meaning thereby that they had not absconded and thus it has been contended that the credibility of PW-1 is not beyond doubt. The further finding is that the Investigating Officer has recorded the statement of the injured on 30.101997 i.e. after a period of twenty days of the incident.
D. That there is a delay in recording of the statement, which shows that the investigating officer has not conducted the investigation in a proper and appropriate manner. The court has further observed that there is a delay in lodging of the first information report and that the motive has not been established.
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 and 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