Prakash Lodhe vs State Of U.P.Jail Appeal)
2017 Latest Caselaw 1591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 921 of 2005
 

 
Appellant :- Prakash Lodh
 
Respondent :- State Of U.P.Jail Appeal)
 
Counsel for Appellant :- In Person (Jail ),Anuradha Singh,Manjusha Kapil,Rajiva Dubey,Surendra Pal Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 1050 of 2005
 

 
Appellant :- State Of U.P.
 
Respondent :- Shiv Tara Devi
 
Counsel for Appellant :- M.K.S.Yadav
 
Counsel for Respondent :- D.K. Singh Somvanshi
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vivek Chaudhary,J.

1. The accused appellant has preferred Criminal Appeal No. 921 of 2005 under Section 374(2) of Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 28.4.2005 passed by learned Additional Sessions Judge, Court No. 4, Lakhimpur Kheri  in S.T. No. 40/2003  whereby the learned Judge has convicted the appellant under Sections 302 IPC and sentenced him to undergo rigorous imprisonment for life and a fine of Rs.5,000/-. He has also been convicted under Section 506IPC and sentenced to undergo rigorous imprisonment for two years and no fine and sentences are ordered to run concurrently.

2. Criminal Appeal No. 1050 of 2005 State Vs. Shiv Tara Devi has been filed by the State under Section 378 of Criminal Procedure Code challenging the acquittal of the co-accused Shiv Tara Devi.

3. The present appeals were filed in the year 2005 against the impugned judgment dated 28.4.2005  and it has come up for hearing before us after lapse of a period of about 12 years. The appellant convict in Criminal Appeal No. 921 of 2005 is in jail since his arrest namely more than 14 years have passed.

4. Both the appeals have been filed against common judgment and order passed by Trial Court. The facts and evidence in both the appeals are the same, hence they are being disposed of by this common judgment.

5. The prosecution story of the case, in brief is that complainant Vinod Kumar son of Shyam Narain, Resident of Village Lonianpurwa, Resident of Sisaana, Police Station Dhaurhara, District Kheri loged written report at Police Station Dhaurhara on 22nd September, 2002 at 7.80 a.m. narrating the facts that his maternal uncle ( Mama) Kamlesh Kumar was sleeping in a room of his house and his Nani was sleeping under a Tinshed outside the house ; that he ( complainant) and Sarvesh Kumar were sleeping in Veranda in cot ; that he ( complainant) had been residing at the house of his Mama Kamlesh since long ; that his Mama-Kamlesh was married to the daughter of one Ram Autar resident of Village Maila , Police Station Isanagar. In the presence of his previous wife, his Mama - Kamlesh Kumar had performed his second marriage with Smt. Sivtara d/o Sewak Ram ( accused)and he began to live with her; that his previous wife had died about one and half years back i.e. before the incident. Kamlesh had one son from his first wife and his name was Sarvesh and aged about 11 years. He had one son from his second wife Shivtara whose name is Rinku and was aged about 7 years; that Smt. Shiv Tara Devi had illicit relation with Prakash Lodh son of Sri Ram Bodh and Prakash Lodh used to come at the house Kamlesh, but Kamlesh did not like the visting terms of Prakash at his house and for this he rebuked Shiv Tara Devi as a result of which Prakash and Shiv Tara used to bear grudge against Kamlesh and on account of that enmity on the fateful night at about 11 p.m. Shiv Tara opened the door and Prakash came into the house and he was armed with Banka; that Shiv Tara sat above on the head of Kamlesh and caught hold of his hands and Prakash Lodh started to inflicting injuries of Banka on the head of Kamlesh and caused his death instantaneous; that complainant's Nani Lakhpata was sleeping under tin shed out side the house. Shiv Tara came and sat on her head and caught her hands and Prakash Lodh started to inflict Banka injuries on the head of Lakhpata and caused her death and Prakash Lodh and Shiv Tara Devi went away from the place of offence the boys were threatened by showing Banka and saying that if any body would cry or tell this incident to any body he would be killed with the said Banka. It is alleged in the FIR that lamp was burning and complainant and Sarvesh were awaken and had seen the occurrence. Rinku was also sleeping with his father Kamlesh. Complainant and others did not come out from house due to fear. In the morning, Rinku went in the village and told villagers and then villagers came to the spot.

6. The complainant on next day went to police station and lodged report. The case was registered and investigation of the case started. After preparing necessary papers, the dead bodies of the deceased were sent to Mortuary District Hospital Lakhimpur Kheri, where post-mortem on the dead bodies of deceased were conducted by the the Doctor. During investigation of the case, accused were arrested. The weapon of offence ''Banka' was recovered from the Ghoora of Prakash Lodh on 24.9.2002 at 16.20 hours. After completing the entire investigation of the case the I.O. submitted charge sheet against the accused persons Prakash Lodh and Shivtara Devi under Sections 302, 506, 34 of the IPC. After completing all the procedure as per mandatory provisions of Cr. P.C., the accused were charge-sheeted. The accused were summoned and the case was made over to the Court of Sessions being sessions triable case. Thereafter, Charge was framed at Ex.6 against the both the accused. Accused pleaded not guilty and claimed to be tried.

7. The witnesses whom the prosecution examined to bring home the charges are as follows :

1. Vinod Kumar P.W.-1

2. Sarvesh Kumar P.W.-2

3. Dr. P.K. Gangwar P.W.-3

4. Sri Siya Ram Tiwari P.W.-4

5. H.S. Abid Ali - 25 P.W.-5

6. Tez-Pal Singh Verma P.W.-6

7. Ram Awadh Chawahan PW-7

8. The prosecution examined eleven witnesses and in support of its case produced following documentary evidence.

Documents :

1. Written Report Ext. Ka-1

2. Post Mortem Report Ext. Ka- 2

3. Post Mortem Report Ext.Ka - 3

4. Inquest Report ext. Ka -4

5. F.I.R. Ext. Ka - 18

6. Copy of Report Ext. Ka - 19

7. Inquest report Ext. Ka - 20

8. Site Plan Ext. Ka - 22

9. Recovery Memo Ext. Ka - 23 to 30

10. Site Plan Ext. Ka - 31

11. Gerontologist Report Ext. Ka - 32

9. Thereafter, after examining the witnesses, further statement of accused under Section 313 of Cr.P.C. were recorded in which the accused have denied the case of the prosecution.

10. This was the evidence which was produced before the trial court and after examining the records before the court, the Trial Court convicted Prakash and Shiv Tara Devi was acquited.

11. Learned Advocate for accused has submitted that while going through the testimony of PW-1 and PW-2 corroborated by injuries caused on the body of deceased they are not possible by the so caused Banka. In the night, murder of Kamlesh Kumar and his mother Smt. Lakhpatta is alleged when accused Shivtara was present at her Maika ( in the same village) with her son Rinku. Learned counsel took its through the the ocular version of PW-1 Vinod in which he has stated in his cross examination that he had suspicion that accused Shivtara might have opened the door and Prakash accused entered the house. PW-1 has also stated that Rinku used to sleep with his mother Shivtara but in the cross examination he stated that Rinku was sleeping with deceased Kamlesh in the incident of night and he could not know as to where and when Rinku had gone in the night of incident of murder. It has come in the statement of PW-1 that when the IO arrested the accused Shivtara, Rinku was with her. PW-3 Dr. P.K. Gangwar who had conducted post mortem examination on the dead bodies of the deceased has stated in his cross examination that if a person sitting on the chest of the deceased after bending his head and face towards the face of deceased in these circumstances and situation such injuries like antemortem found on the deceased persons are not possible. This also shows that accused Shiv Tara was not present at the time and place of the incident of murder and she did not participate in the murder of the deceased persons.

12. Learned counsel for appellant submitted that in alternative if this Court is of the opinion that he is not entitled to clean acquittal in that case, this Court may consider his case in the light of the decision of Apex Court in Union of India Vs. V. Sriharan (2016) 7 SCC 1 directing the State Govt. that State Govt. may exercise power under Section 432 read with 434 of Code of Criminal Procedure as this is not special category where imprisonment of accused would be beyond 14 years without remission.

13. He has further relied on decision of Apex Court in Union of India Vs. V. Sriharan (supra) and Vikas Yadav Vs. State of U.P, 2016 (9) SCC 541 that the power of remission would be dependent on facts of each case. It is submitted that this is not a case where the term life imprisonment would mean till last breath.

14. The medical evidence is of vital importance in this case so as to come to the finding as to the cause of death. Dr. K.K. Gangwar ( P.W. 3) has stated on oath in his examination -in-chief that on 23.9.2002 he was posted as Radiologist in the District Hospital Lakhimpur; that on that day at 2.30 p.m. he conducted post mortem examination on the dead body of deceased Kamlesh son of Baijnath Lodh resident of Lonianpurwa which was brought and identified by C.P. 600 Dharmendra Pratap Singh and C.P. 778 Indrapal Singh and the same was in sealed condition and its seals were found intact. The deceased was young man of average built ; that rigormortise was present on upper and lower part of body. He further stated that death was caused due to shock and hemorrhage as a result of antemortem injuries. He has further stated that 100 grams of patty material was found in the stomach of deceased. He further stated that he found the following antemortem injures on the dead body of deceased Kamlesh :-

(i) Multiple incised wound in an area of 25 cm x 20 cm on the right side of head face and right area largest 12 cm x 1 cm x cranial cavity, smallest 5x1/2 cm. X bone deep under lying right temporal parietal and frontal maxil. Were found bone cut. Margins were found cleaned.

(ii) Incised wound 3 cm. X 1 cm. X ventra deep 3 cm. Right side of neck cm below right aar under layrinx III C cm. Margins are clean cut.

(iii) Multiple incised wound 20 x 6 cm in an area on right side of head , forehead, right layrinx 15 cm. X 1 cm x ranial cavity deep smallest 10 x 1 cm x bone deep. Margins are clean cut. On dissection the Laynrix was right temporal occipital , frontal parital were found cut, membaranes and brain were found clean cut.

15. Accused was the perpetrator of crime and we do not find any reason to differ with the finding of facts as recorded by Trial Court. We have perused the record and from the evidence of PW-1 and PW-2 that deceased was murdered by the accused herein namely Prakash Lodh. The theory of dacoity was never in the FIR . PW- 1 and PW-2 were eye witnesses and therefore the submission of learned counsel for appellant that the photographs were not filed cannot be believed. There is recovery of knife is also proved. Considering the totality of the facts and circumstances that death was committed by accused. Injuries were found on the neck of the deceased person . The Banka used for death of deceased is recovered at the instance of Prakash Lodh and, therefore, we have no hesitation in holding that offence under Section 300 IPC punishable under Section 302 IPC is committed by appellant and we cannot perused ourselves to take a different view that then taken by Trial Court.

16. The finding of fact that the place of hidden of weapon used in the aforesaid incident was at the behest of accused will also not persuade us to hold that the accused was not the author of the murder. In this case, the discovery appears to be credible. It has been accepted by the Court below on the evidence led before it that there is no reason to believe that the accused was not present at the place of offence and he had not intentiaonally committed the crime. This finding is not dislodged even before us and we concur with the learned Trial Court in holidng that accused was present at the place of occurance and he was the author of the crime. The weapon was sent to the Forensic Science Laboratory and it was found stained with human blood. As the results were conclusive to hold that the accuded had committed the crime.

17. The accused in his statement under Section 313 of Cr.P.C. did not give any explanation as to how the blood was found. This discovery positively furthers the prosecution case about the culpability of the accused in the facts of this case. We are supported in our view by the judgment of the Apex Court in the case of John Pandian Vs. State reported in JT 2010 (13) 284.

18. Similar view has been taken by Apex Court in the case of Arvindkumar Anuplal Poddar v. State of Maharashtra, reported in 2012 Cri LJ 4007 (SC), has observed as under:

"The recovery from the place of occurrence, the frequent quarrels between the deceased and the accused as stated by PWs 1 and 2, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, that as per the version of PW-5, the post-mortem doctor, the death was homicidal and that the injuries could have been caused with the weapon marked in the case, that he appellant wanted to flee from the town itself."

In our case also the facts are similar the weapon was found from a place which could be known the accused only.

19. The fact that the accused had the motive and the child witness has been corroborated and his evidence is found trustworthy and we concur with the findings of fact that it was corpurable homicide amounting to murder. On deep scrutiny of the evidence on record we hold that the accused has intentionally caused the death of the deceased. The blood was found from the weapon of murder. The evidence is unshakable and there was no contradiction in the evidence record.

20. This takes us to the alternative prayer of the counsel for appellant directing the State Govt. that State Govt. may exercise power under Section 432 read with 434 of Code of Criminal Procedure as this is not special category where imprisonment of accused would be beyond 14 years without remission. Learned Counsel for the appellant has pressed into service the decision of Apex Court in the case of Vikas Yadav Vs. State of Uttar Pradesh and others, (2016) 9 SCC 541 and has contended that as the accused is in jail since more than 14 years which as per the decision Maru Ram Vs. Union of India, 1981 (1) SCC 107 wherein the Apex Court has held that 14 years of incarceration should be minimum and the validity of 433A Cr.P.C. was upheld. The principle of sentencing will have to be invoked in this case. It cannot be said that the murder was with brutality.

21. The minimum sentence of 14 years with all remissions and the rational would be 14 years. This is not a case where we would bar the remission. Principles enunciated in the cases of Vikas Yadav Vs. State of Uttar Pradesh and others (supra ) and Union of India Vs. V. Sriharan ( supra) would permit us to impose imprisonment of remittable specified period of 14 years incarceration.

22. This has been held permissible by the Apex Court in the aforesaid decisions. Accused is already in jail since about more than 15 years. In the light of our finding and the reasons given herein above he shall be released unless required in any other offence. This appeal succeeds and in part. Remitting the life imprisonment of 14 years of incarceration with remissions looking to the jail report also and the non-antecedents of the accused. The fine if not paid the default sentence shall begin to run immediately after completion of 14 years with remissions and is curtailed to 3 months of simple imprisonment.

23. The Apex Court in Union of India Vs. V. Sriharan ( supra) as held that it will be the power of State Govt. and there should be a mandatory compliance of the same. Hence, with these observations, we hold that State Govt. may consider the case of appellants. The power would be exercise by the same within six months from the receipt of the certified copy of this order. Alternative prayer of learned counsel for appellants is that the appellant is in jail since more than 14vyears and the term life may be considered to be not till his last breath. There is force in the submission of the counsel. The principles of Sections 434 and 432 Cr.P.C. had to be invoked by the State Govt. and his case was to be considered on completion of 14 years of incarceration which has not been done.

Criminal Appeal No. 1050 of 2005

24. We have heard learned AGA appearing for the appellant State as well as learned advocate appearing for the respondent. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Anr, 2006 6 SCC 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

25. Further, in the case of Chandrappa Vs. State of Karnataka, 2007 4 SCC 415, the Apex Court laid down the following principles;

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."

26. Thus, it is a settled principle that while exercising the appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

27. Even in the case of State of Goa V. Sanjay Thakran and Anr, 2007 3 SCC 755, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under;

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

28. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Ors, 2007 AIR(SCW) 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP, 2007 AIR(SCW) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

29. In the case of Luna Ram Vs. Bhupat Singh and Ors, 2009 3 SCC 749, the Apex Court in para 10 and 11 has held as under:

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the socalled eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

30. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013(SC) 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, 2004 5 SCC 573]"

31. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, AIR 1981 (SC) 1417, wherein it is held as under:

"... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary, 1967 1 SCR 93 that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

32. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, 2013 7 JT 66.

33. The finding of fact of learned Trial Court regarding presence of Shiv Tara Devi and her role in murder of Kamlesh Kumar and his mother Lakhpatta is not proved. We are unable to perused ourselves to hold that she was not in her parental home with her son Rinku. The statement of Vinod Kumar also raises the doubt about her presence. In his cross examination also, there are discrepancies about her presence and when she was arrested Rinku was with her. The finding of fact that injuries like this are not possible.

34. In Criminal Appeal No. 1050 of 2005 we hold that while exercise of acquittal the Apex Court recently has once against summarized the principles which would apply to the case of acquittal. The principles will not permit us to take a different view then that taken by Trial Court as there is no perversity in the approach of Trial Court. The Apex Court recently in Mahavir Singh vs State Of Madhya Pradesh, (2016) 10 SCC 220 has reiterated the principles of interference with the order of acquittal. The facts and circumstances of this case will not permit us to interfere with the well reasoned order of acquittal.

35. Criminal Appeal No.921 of 2005 is partly allowed. The accused shall suffer 14 years of incarceration fine maintained. Default sentence reduced to three months. He shall be entitled to all set off and remissions as admissible under Section 432 and 434 of Cr.P.C. and as per jail manual. Criminal Appeal No. 1050 of 2005 is dismissed.

36. Record be sent to Trial Court. Copy of this judgment be sent to concerned Jail Authorities as per the provisions of Cr.P.C.

Order Date :- 5.6.2017

Mukesh