State Of U.P. vs Virpal And Anr.
2021 Latest Caselaw 9199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- GOVERNMENT APPEAL No. - 463 of 2019
 

 
Appellant :- State of U.P.
 
Respondent :- Virpal And Anr.
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Mohd. Aslam,J.

(Per Hon'ble Manoj Kumar Gupta,J.)

Heard learned AGA on behalf of the appellant State in support of application for leave to appeal against the judgment and order of acquittal dated 20.7.2019 by IIIrd Additional District & Sessions Judge, Pilibhit in S.T. No. 16 of 2018 (State vs. Virpal and Another)

Learned AGA submitted that the trial court has not properly appreciated the evidence of the prosecution and recorded order of acquittal against the accused respondents on basis of conjectures and surmises.

Before we proceed to examine the submission of learned counsel for the appellant, it would be advantageous to refer to judgments of Supreme Court regarding the manner in which an application for leave to appeal by the State under Section 378 CrPC has to be dealt with. In State of Maharashtra vs. Sujay Mangesh Poyarekar, (2008) 9 SCC 475, the Supreme Court has laid down the principles of law to be followed while considering an application for leave to appeal as follows: -

"19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal "shall be entertained except with the leave of the High Court". It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.

20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.

21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate Court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the Court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be `perverse' and, hence, no leave should be granted. .............................

24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate Court against an order of acquittal recorded by the trial Court. We only state that in such cases, the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Where there is application of mind by the appellate Court and reasons (may be in brief) in support of such view are recorded, the order of the Court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits."

The above principles of law have been reiterated in State of Rajasthan vs. Firoz Khan @ Arif Khan, (2016) 12 SCC 734 and State of U.P. vs. Anil Kumar @ Badka & Others, (2018) 9 SCC 492. In a more recent judgment dated 20.7.2021, in Criminal Appeal No. 646 of 2020 (Brijesh Singh vs. State of U.P. and others), the Supreme Court quoted with approval the following passage from earlier judgment in State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 : -

"6. The trial court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, reappreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial. The effect of the admission of the accused in the background of testimony of official witnesses and the documents exhibited needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief in its order, indicative of an application of its mind; all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. v. Battan [(2001) 10 SCC 607: 2003 SCC (Cri) 639]. About two decades back in State of Maharashtra v. Vithal Rao Pritirao Chawan [(1981) 4 SCC 129: 1981 SCC (Cri) 807: AIR 1982 SC 1215] the desirability of a speaking order while dealing with an application for grant of leave was highlighted. The requirement of indicating reasons in such cases has been judicially recognised as imperative. The view was reiterated in Jawahar Lal Singh v. Naresh Singh [(1987) 2 SCC 222: 1987 SCC (Cri) 347]. Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or court, be it even the highest court in a State, oblivious to Article 141 of the Constitution."

Supreme Court has thus held that while considering an application for leave to appeal, this Court should apply its mind, consider whether prima facie case has been made out or not, arguable points have been raised or not and whether upon deeper scrutiny of the statement of witnesses and other evidence, there is any likelihood of the order of acquittal being set aside. It had hastened to add a caveat that this would not mean that each and every petition seeking leave to appeal must be allowed and every appeal must be admitted and decided on merits. The reasons for such observation are discernible from the principles laid down by Supreme Court in several decisions in relation to a judgment reversing order of acquittal.

In Bannareddy & Others vs. State of Karnataka & Others, (2018) 5 SCC 790, it has been held that there should be strong and compelling reasons existing on record to dislodge the findings of the trial court in the event the order of acquittal has to be reversed. The court hearing the application for grant of leave to appeal has to keep in mind that the presumption of innocence gets further reaffirmed and strengthened by the acquittal of the accused by the trial court. The relevant paragraphs from the said judgment are reproduced for convenience of reference :-

"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]."

Keeping in mind the above legal position, we now proceed to examine the contention of learned AGA. According to prosecution case, on 28.9.2017, at 11:30 a.m., Smt. Parvati Devi approached the police station and made oral complaint that the accused were abusing her and when her husband Lekhpal intervened, they assaulted him with fists and kicks. On basis of the said oral complaint, NCR No. 288/2017 under Sections 323 and 504 IPC was lodged. Lekhpal was sent for medical examination to Primary Health Centre and he was found to have sustained internal injuries on his head and was reporting pain in chest (Injury Report - Ext. Ka-1). On 4.10.2017, Smt. Parvati Devi again approached the police station and reported about the death of her husband. Thereupon, NCR (Ext. Ka-3) was registered as a FIR, being Case Crime No. 976 of 2017, after adding Section 304 IPC (Ext. Ka-5). After completing the investigation, the charge sheet (Ext. Ka-8) was submitted under Section 304, 323, 504 IPC against the accused respondents.

The prosecution examined two witnesses. The first witness was Dr. Muneesh Kumar Verma (PW1), who conducted the medical examination on 28.9.2017 and postmortem on 4.10.2017. The second witness was Anoop Singh (PW2), the constable who registered the NCR and later the FIR. The accused were confronted with the incriminating material and evidence against them under Section 313 CrPC. They denied the charges and claimed to be tried, but did not lead any evidence in defence. The trial court after considering the evidence on record acquitted the accused, holding that the prosecution has failed to prove its case. One of the main considerations on which order of acquittal is based is the non-examination of Smt. Parvati Devi on whose information the NCR and FIR were got registered. It has been held that she was the main witness of fact and her non-examination is fatal to the prosecution case. The trial court has also held that since it was specific case of the prosecution that the accused were abusing Smt. Parvati Devi and her husband and hearing the voices, neighbours came out of their houses, consequently, the prosecution should have examined the neighbours to prove the prosecution version, but which has also not been done. It has also found various contradictions in the statements of the witnesses and held that the prosecution had failed to prove that antemortem injuries received by the deceased were in fact inflicted by the accused.

We have closely examined the evidence on record and the findings recorded by the trial court. Undoubtedly, Smt. Parvati Devi who had lodged the NCR and FIR was the prime witness of fact. However, she was not examined during trial. It is recorded in the impugned order of the trial court that process was issued several times summoning Smt. Parvati Devi for examination, but she did not appear. The local police reported that she was not found residing at the given address. A request was sent to Superintendent of Police, Pilibhit vide letter dated 3.7.2019 to get the summons served upon her and ensure her presence in the court. Copy of the said communication was also forwarded to IG (Zone), Bareilly and DGP, Lucknow. Thereafter, report was submitted recording the statement of Har Nandan Verma, brother of the deceased victim that after death of her husband, she had left the house and they have no information relating to her whereabouts. The police also submitted a report that Smt. Parvati Devi is not traceable. The trial court had thus made several efforts to bring Smt. Parvati Devi to witness box, but could not succeed. The two witnesses examined are the doctor who conducted the postmortem and the police constable who registered the NCR and FIR. They had not, nor could have deposed anything in relation to the incident that had supposedly resulted in grievous hurt and later death of Lekhpal. In such circumstances, we are of the considered opinion that the most crucial part of the prosecution story remained unproved.

Undoubtedly, PW1 the doctor, who had conducted the postmortem, had proved the injuries and the fact that the death occurred due to antemortem injuries, but according to his opinion, the injuries were inflicted by a hard and blunt object. However, as per NCR, which was later registered as a FIR, the accused persons were alleged to have assaulted Lekhpal with fists and kicks. During trial, the prosecution tried to improve upon the case by contending that the victim was hit by lathi, but no such allegation was made in the NCR or the FIR, nor there is any such evidence. The police during investigation had failed to recover the article/weapon with which the injuries were allegedly inflicted. Moreover, PW1 Dr. Muneesh Kumar Verma who conducted medical examination of the victim on 28.9.2017 and later conducted postmortem on 4.10.2017, during cross examination stated that the injuries as had been found, are possible if a pedestrian walking on wrong side of the road is hit by a vehicle. There is no independent evidence on record which may connect the injuries received by Lekhpal with the alleged assault by the respondents upon him on 28.9.2017. In fact, the prosecution had miserably failed to lead any evidence with regard to the presence of the accused respondents at the place of occurrence on 28.9.2017. The prosecution has completely failed to bring home the charges against the accused respondents.

We thus find that the appellant State has failed to establish any prima facie case warranting deeper scrutiny of the judgment of the trial court. Accordingly, the application for leave to appeal is rejected and in consequence, the appeal stands dismissed.

(Mohd. Aslam, J.) (Manoj Kumar Gupta, J.)

Order Date :- 2.8.2021

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