State Of U.P. vs Boni & Others
2013 Latest Caselaw 1451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 

 
Case :- GOVERNMENT APPEAL No. - 798 of 2005
 

 
Petitioner :- State Of U.P.
 
Respondent :- Boni & Others
 
Petitioner Counsel :- V.S.Mishra (G.A.)
 

 
Hon'ble Surendra Singh,J.

Hon'ble Karuna Nand Bajpayee,J.

(Delivered by Hon'ble Karuna Nand Bajpayee,J.)

This government appeal has been filed on behalf of State along with application for grant of leave to file appeal against the judgment and order dated 6.11.2004, passed by Additional Sessions Judge, Court No.4, Budaun, in Sessions Trial No.1137 of 1998, under Section 307/34 I.P.C. , P.S. Sahasvan, district Budaun whereby both the accused facing trial have been acquitted.

Heard learned A.G.A. and perused the record.

Shorn of unnecessary details, the brief facts giving rise to this appeal are that on 8.11. 1997 at about 6.00 p.m. the first informant Sonepal along with his mother, Smt. Surajmukhi were going in the lane outside their house. Soon after that the informant saw accused Boni armed with a spear and accused Kalicharan armed with a gun. No sooner than the first informant saw them, accused Boni exhorted co-accused Kalicharan and instigated him to kill the informant. It was on this exhortation that accused Kalicharan opened fire on the first informant. According to prosecution story the assailant missed his aim and the fire hit Smt. Surajmukhi, who as a result of this , received gun shot injury on her arm. On hearing hue and cry raised by the first informant, the witnesses of same village arrived on the spot and saw the incident. The F.I.R. of the case was lodged on 9.11.1997 at 2.05 a.m. in the police Station Sahasvan under Section 307 I.P.C.

In order to prove the case, the prosecution examined the first informant and also injured Smt. Surajmukhi. They were witnesses of fact while formal witnesses were produced to prove the injury of Smt. Surajmukhi and the other parts of the investigation. No other independent witness was produced.

Learned lower court by a reasoned judgement has acquitted both the accused-respondents principally on the following grounds:

1. The Trial court has not found any convincing motive as a result of which the alleged accused might have committed this crime in question. It is said that many years before this incident the brother of the first informant was murdered by these accused. That case was decided in favour of the accused and they were acquitted on 14.1.1992. The present incident took place on 8.11.1997. This background is more likely to make the first informant the aggrieved person and for the reason of the unsuccessful prosecution and for the reason of being a failure in procuring conviction, the first informant might have a natural grouse against the accused and it is more likely that he might have had a motive to falsely implicate the accused. On the other hand the alleged accused having murdered his brother and yet having gone scot free would hardly have any motive to take on the first informant as they were already having all success in their lap. It has also been taken into account by the court below that in the murder case of first informant's brother, he was not a witness of the crime. That is an additional reason to hold that the accused are not likely to have any grouse against the first informant and therefore, even the motive part as alleged by the prosecution is not very compatible with the facts of the case. As such the alleged evidence of motive does not add anything to the weight of the prosecution story.

2. According to the prosecution evidence, the distance from which the gun was fired has been shown as seven steps, which in other words may be said to be equal to 14 feet, if the steps are to be taken equal to two feet. The distance shall be much more if calculated by the standard military step i.e to be equal to two and half feet. But the perusal of the injury report of lady Smt. Surajmukhi shows the presence of blackening and tattooing on the wound. It is known fact of the medical jurisprudence that neither blackening nor tattooing can be caused from so much distance.

3. The lower court has also taken into account the failure of the prosecution side to file the X-ray report of the injured. The Court could not find anything on record to indicate that any pellets were found inside the body of the lady Surajmukhi .

4. The alleged injury is on the arm a non vital part and there is nothing to show that any damage to the bone or muscle was caused as a result of the alleged fire.

We have perused the injury report, according to which, the injury was caused on the left arm. The same was kept under observation but no evidence was adduced to demonstrate the gravity of the injury. In fact, according to the statement of the doctor P.W.3 which we have perused from the original record, it has been stated that ordinarily this injury is not capable to cause the death. The injury is on the non vital part of the body and there is nothing to indicate that it was grievous in nature. There is nothing on record to indicate any damage to bone or even to muscle.

We also find that the time duration indicated in the injury report is also incongruous with the alleged time of occurrence and it is difficult to reconcile them both.

5. The court has also considered the fact that the accused Boni never attempted to use his spear either against the injured or against the informant Sonepal.

6. Some material contradictions between two witnesses of fact have been considered by the court below and it has been inferred that they make the prosecution story suspect.

7. The alleged delay in lodging the F.I.R. has been discussed in detail and the explanation offered by the prosecution to explain the same has not been found good or satisfactory. The first informant has deposed that he had taken his mother to the police station by a tractor and it took him quite some time to arrange the same. This assertion of the first informant has been belied and completely falsified by the statement of his mother who stated in the court that she was taken to the police station by a bullock cart. She has gone to the extent of stating that the bullock cart was being driven by his son, the first informant himself.

8. The court has also taken into account that apart from the first shot fired, there is no evidence that any second attempt to fire again was made by the accused respondent, even though the accused is alleged to have missed his aim on the first informant who was according to the prosecution story the prime target.

There are some other reasons which are regarding the delay of the F.I.R. and the duration of the injury, which we do not propose to discuss in any great detail. But to us also the whole prosecution story looks to be doubtful bristling with improbabilities and inconsistencies.

Now we prepare to deal with a somewhat queer argument raised by the learned A.G.A..

He contends that even if the witnesses produced may not be called wholly reliable and even if there exists circumstances to indicate that the witnesses are not giving completely truthful version of the incident, the leave to appeal should still be granted because it is not a case of no evidence. The submission is that there is at least a prima facie case against the accused and it cannot be said that there is no ground to proceed against the accused. It has been urged before us that the admission of the appeal should be refused only in cases where there is no material or admissible evidence at all against the accused. The sufficiency of the evidence and its reliability are not relevant considerations while admitting the appeal or granting leave to file the same. Acceptability of evidence or sufficiency or insufficiency of evidence, compatibility of oral evidence viz a viz medical evidence, explained or unexplained delay in lodging the FIR; and the inter-se contradictions in the testimony of witnesses are such aspects which are not to be seen at the admission stage. The appeals, according to the contention of AGA , should be admitted even if the State succeeds to make out just a prima facie case against the accused. The quality of the impugned judgement or its reasonableness are all considerations foreign to the scope and ambit of courts jurisdiction at the time of deciding on the point of admissions of appeal.

We have given our anxious consideration to the contentions raised before us but we have no doubt in our minds that they have absolutely no merit in them and must be rejected. It seems that the considerations at the time of deciding whether an accused ought to be summoned or not in a given criminal trial, or the constituents which ought to be found sufficient in order to frame the charges against an accused in a given criminal trial, have been badly confused with the considerations which have been recognized as sufficient in order to interfere in the finding of acquittal recorded in favour of the accused by some court . We are not exercising any jurisdiction to decide the validity of any summoning order nor are we sitting in jurisdiction to decide whether the charges have been legitimately framed against the accused or not. Both are all together different matters and involve all together different considerations to proceed against the accused. The appeal against acquittal is altogether a different proposition of law involving several distinct principles of criminal jurisprudence which have evolved over the years and stand settled by several authoritative judgements pronounced by the privy counsel, by The Apex Court, and also by our own High Court.

It is true that when a Court sits upon judgement to decide whether it should summon an accused to face the trial or not, it should only see whether there is sufficient ground to proceed in the case. Similarly at the time of the framing of the charge the court is suppose to see whether there is ground for presuming that the accused has committed an offence or not . At both these stages it is not advisable for the courts to enter into a roving inquiry into all the pros cons of the case or to make sure that the material produced by the prosecution before the Court is definitely of such nature that in all probability it should secure a conviction against the accused. Standard of sufficiency of material in order to summon an accused or the standard of sufficiency of material which should be found adequate in order to frame the charges against the accused is necessarily different and of lower nature than the standard of sufficiency and reliability of evidence in order to record conviction against the accused. The standard of proof beyond reasonable doubt has always to be applied before a conviction may be validly recorded against an accused. Convictions are not recorded just because there is a prima facie case against the accused or that there are grounds to proceed against him. Charges can be framed even if there is material to indicate a reasonable suspicion against the accused but a reasonable suspicion alone has never been sufficient to secure the conviction. There is a long distance to be travelled between, may be true and must be true and the suspicion must morph itself into proof beyond reasonable doubt. Then and then alone can the conviction be recorded.

The entire process of the trial through its elaborate procedure is nothing but an exercise through which the court is to give its verdict on the point whether the prosecution has been able to prove the charge beyond all reasonable doubts or not. If the Court holds that the prosecution has failed to prove the guilt of the accused then the higher court is to see whether there is sufficient cause to make an interference in the order recording acquittal or not. How and when and under what circumstances the High Court is expected to interfere with the verdicts recording acquittal of the accused are too well settled to be elaborated upon at any great length. But it may be germane to refer some leading authorities dealing with the controversy in question.

In the case of Sheo Swaroop Vs. King Emperor, AIR 1934 PC 227, the substance of what the Privy Council had held is as under :

"The High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainty not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

This view of law adopted by the Privy Council has formed the chief plank on the basis of which most of law in the following decades was laid down. The Supreme Court decisions on this point regarding the scope of interference in the verdicts of acquittal, have further supplemented the aforesaid view of the Privy Council.

In the case of State of U.P. Vs. Banne @ Baijnath (2009)4SCC, 271, the Apex Court held as under:-

"42. Following are some of the circumstances in which perhaps this Court would be justified in interfering with the judgment of the High Court, but these are illustrative not exhaustive.

i) The High court's decision is based on totally erroneous view of law by ignoring the settled legal position;

ii) The High court's conclusions are contrary to evidence and documents on record.

iii) The entire approach of the High court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

iv) The High court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

v) This Court must always give proper weight and consideration to the findings of the High Court.

vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

In the case of Brahm Swaroop Vs. State, AIR 2010 (SCW) 6704 also, the same view was reiterated. The substance of what was held in this case may be summarized as follows :

"It is well established in law that the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. Similarly, the incorrect placing of the burden of proof may also be a subject matter of scrutiny by the appellate court. The court of appeal may not interfere where two views are possible for the reason that in such a case it can be held that prosecution failed to prove the case beyond reasonable doubt and accused is entitled for benefit of doubt."

In another case of State of Rajasthan Vs. Abdul Mannan 2011 (8) SCC 65, it has been observed by the Hon'ble Supreme Court as under: -

"12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment, or imprisonment of more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134 (1) (a) and 134 (1) (b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court."

In yet another case of Pudhu Raja & Anr. Vs. State, Rep. By Inspector of Police, 2012 (9) JT 252 the Apex Court observed as further:-

"7. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

Again in another case of Radhakrishna Nagesh Vs. State of Andhra Pradesh, 2012 AIOL 601 this has been observed by Apex Court:-

"34. Lastly, coming back to the first contention raised on behalf of the accused, it is true that the appellate Court has to be more cautious while dealing with the judgment of acquittal. Under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.

35. When we mention about the Court being cautious, it does not mean that the appellate Court cannot disturb the finding of acquittal. All that is required is that there should be a compelling rationale and also clear and cogent evidence, which has been ignored by the Trial Court to upset the finding of acquittal. We need not deliberate on this issue in greater detail. Suffice it to notice the recent judgment of this Court in the case of Ravi Kapur v. State of Rajasthan [JT 2012 (7) SC 480], where the Court, after discussing various other judgments of this Court held on the facts of that case that interference with the judgment of acquittal by the High Court was justified. The Court explained the law as under:

37. Lastly, we may proceed to discuss the first contention raised on behalf of the accused. No doubt, the Court of appeal would normally be reluctant to interfere with the judgment of acquittal but this is not an absolute rule and has a number of well accepted exceptions. In the case of State of UP v. Banne and Anr. [(2009) 4 SCC 271], the Court held that even the Supreme Court would be justified in interfering with the judgment of acquittal of the High Court but only when there are very substantial and compelling reasons to discard the High Court's decision. In the case of State of Haryana v. Shakuntala and Ors. [2012 (4) SCALE 526], this Court held as under:

36. The High Court has acquitted some accused while accepting the plea of alibi taken by them. Against the judgment of acquittal, onus is on the prosecution to show that the finding recorded by the High Court is perverse and requires correction by this Court, in exercise of its powers under Article 136 of the Constitution of India. This Court has repeatedly held that an appellate Court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to such accused under the fundamental principles of criminal jurisprudence, i.e., that every person shall be presumed to be innocent unless proved guilty before the court and secondly, that a lower court, upon due appreciation of all evidence has found in favour of his innocence. Merely because another view is possible, it would be no reason for this Court to interfere with the order of acquittal."

We may give umpteen citations where similar views of law have been adopted by the Hon'ble Apex Court. We do not propose to burden this order by multitude of the citations as it will be superfluous in the present context. Suffice it to say that this Court shall not hesitate to interfere and set aside the verdict of acquittal, if it can be shown that the same is perverse or is against the weight of evidence recorded by the court or that it has resulted into a complete miscarriage of justice. This Court shall also not feel shy in interfering if it can be established that the evidence considered by the lower court could not have been legally considered being inadmissible in nature or that the court has failed to give due weight to the evidence which it was bound to consider under law. The view adopted by the lower court must be an impermissible view either on law or on facts. If the view adopted by the lower court also appears to be a possible view, then this Court shall be highly reluctant to substitute the same by its own view.

The aforesaid discussion of law is sufficient to bring home the unsustainability of the contentions raised by learned A.G.A. on behalf of the State. He has not been able to show us any perversity in the judgement nor do we find any such error of law or fact which might have occasioned in the failure of justice. At any rate, we cannot say that the view adopted by the lower court is not a possible view which may be taken by any prudent court. As such in the light of settled principles of law, while entertaining the instant appeal against acquittal, we do not think it to be a fit case to grant leave.

Leave to appeal is refused. Consequently, this Government appeal fails and is accordingly dismissed.

Let the lower court record be remitted back to the court concerned.

Order Date :- 29.4.2013

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