State Of Up vs Ramdas And 2 Others
2021 Latest Caselaw 9693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44
 
Case :- GOVERNMENT APPEAL No. - 212 of 2020
 
Appellant :- State of U.P.
 
Respondent :- Ramdas And 2 Others
 
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 13.1.2020 by IXth Additional Sessions Judge, Badaun in S.T. No. 1055 of 2008 (State vs. Ramdas and 2 Others).

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.

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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, a written complaint was made on 9.12.2006 at around 9:30 a.m. (Ext. 1) by Rajpal (complainant) at P.S. Visauli, District Badaun regarding murder of his father by unknown persons. It was stated in the application that his father Kalyan Singh, like always, was sleeping over the chak (agricultural land) on the south of the village where engine is installed. In the previous night, some unknown persons have murdered him by firing at him. At 5 a.m. in morning when he went to the chak to fetch fodder for cattle, he found body of his father lying under shehtoot tree near the engine. He informed the villagers and whereafter the villagers assembled at the place of occurrence. It was also stated in the application that he had no enmity with anyone and that necessary legal action be taken after registering FIR. In pursuance thereof, a FIR (Ext. 4) was registered on the same day, being Case Crime No. 695/2006, under Section 302 IPC against unknown persons. On direction of the Investigating Officer, inquest (Ext. 8) and postmortem (Ext. 6) were carried out. On next day, i.e. 10.12.2006, the complainant gave another application in writing (Ext. 2) stating that at the time he gave information to the police regarding murder of his father, he was under fear and therefore did not name the culprits. However, upon making inquiry from the villagers and his uncle Chottey Lal, he came to know that his father was done to death by the accused respondents, as well as Omkar (died during pendency of the trial). The incident was witnessed by Jograj Singh and Moti Singh. It was further alleged that his father was getting installed a new tubewell to be run on electricity. The accused persons had their tubewells in the vicinity and they were objecting to the idea of installation of tubewell by his father. This according to the written complaint given on 10.12.2006, was the cause of enmity, leading to the murder of his father.

During investigation, the police arrested accused Omkar Singh and recovered from his possession a countrymade pistol and two live cartridges of 315 bore. According to the prosecution story, it was used in killing Kalyan Singh. The police had prepared a fard ((Ext. 3) relating thereto and a separate case under Section 25 of the Arms Act was registered against Omkar Singh. It was clubbed with the sessions trial. However, on account of the death of Omkar Singh, Case Crime no. 722 of 2006, under Section 25 of the Arms Act was abated by order dated 12.4.2013. 

The prosecution examined complainant Rajpal as PW1, Jograj Singh as PW2, Sub Inspector Bhopal Singh as PW3, Constable Clerk Amarnath Singh Gaur as PW4, Chottey Lal as PW5, Mukesh as PW6, Dr. Ramesh Kumar Verma as PW7, Retired Sub Inspector Karan Singh as PW8 and Retired Sub Inspector Ram Kripal as PW9. Rajpal PW1, Constable Clerk Amarnath Singh Gaur PW4, Chottey Lal PW5 and Mukesh PW6, are witnesses of fact, PW7 is the doctor who performed the postmortem, while other witnesses are formal witnesses. PW2 Jograj Singh was declared hostile. 

The trial court disbelieved the testimony of Mukesh (the sole eye witness) on the ground that there were several contradictions in his statement and his presence at the place of occurrence is doubtful. As noted above, Jograj Singh, the other eye witness, was declared hostile. Moti Singh who is also alleged to have witnessed the incident, was also not examined as he had died during trial. The other witnesses of fact, namely PW1 Rajpal and PW5 Chottey Lal had not witnessed the incident. Their statement was based on hearsay. The trial court accordingly held that the prosecution has failed to prove the charges beyond reasonable doubt and acquitted the accused respondents. 

We have carefully gone through the depositions of the witnesses, the evidence on record and the reasonings given by the trial court. The first witness of fact is PW1 (the complainant). He has not witnessed the incident, as according to his own statement, he reached the spot at 5 a.m. in morning on 9.12.2006. He then found the dead body of his father lying under shehtoot tree near the engine. In his written complainant (Ext. 1) on basis of which FIR was registered, he did not mention name of any suspect, rather it was against unknown persons. In the complaint given by him on next day (Ext. 2) wherein he named the respondents as accused, it is clearly admitted that the information furnished was based on the inquiry made from the villagers and his uncle Chottey Lal. PW1 went a step further and stated that before arrival of the Investigating Officer to the village on second day for investigation, he was informed by his younger brother Mukesh that he had witnessed the incident as he was sleeping beside his father at that time. He told PW1 that the accused respondents dragged his father from the cot and killed him by firing at him. He also informed that the accused threatened him not to reveal anything to anybody, otherwise he will also be done to death. He also informed that the incident was witnessed by Jograj Singh and Moti Singh. He then gave a written application Paper No. 8-Kha/16 (Ext. 2) to the Investigating Officer. It is noteworthy that in the said application, he only stated that he came to know about the respondents having killed his father from the villagers and his uncle Chottey Lal. He did not mention that his brother had witnessed the episode or told him anything about the same. Another noteworthy feature is that PW1in his deposition stated that Jograj Singh and Moti Singh were present at the place of occurrence near the dead body. He got the application (Ext. 1) drafted in their presence. In case they had witnessed the episode and were present at the place of occurrence and FIR was written by Shankar Lal (villager) in their presence, it seems improbable that they would not have disclosed the name of culprits and the FIR was got registered against unknown assailants. Again, PW1 in earlier part of his cross examination stated that when he reached the place of occurrence, his brother Mukesh was present, but later in his cross examination, he stated that he met his brother on the next day after the burial had taken place. His testimony in every respect is full of contradictions and does not inspire confidence in so far as it relates to implication of the respondents in the crime.

Jograj Singh PW2 had turned hostile. The other alleged eye witness Moti Singh had died and his statement could not be recorded. Mukesh PW6 who is alleged to be eye witness, admitted in his statement that although he was sleeping besides his father and saw the perpetrators killing his father by pulling him down from the cot and dragging him to a nearby tree where he was killed by firing at him, but he did not raise any alarm. According to his statement, the perpetrators attacked during midnight, but even after they left, he did not go to the village and report the incident to his brothers or other villagers. He also did not report the matter to the police station, but rather the FIR was got registered by his brother Rajpal PW1, who had not witnessed the incident, against unknown persons. He claimed that on second day he informed his brother that he had witnessed the incident and on the following day, when police came for investigation, he informed the investigating officer. He admitted in his cross examination that he did not raise any alarm when the assailants dragged his father from the cot. It seems highly improbable and against normal human conduct that a person witnessing attack on his father would maintain absolute silence, not only at the time of attack, but even after the perpetrators had left the place of occurrence, which is not far from the village settlement. It is also against normal human conduct that if the murder had taken place in midnight, son of the person murdered would spend whole night in the field alone, where his safety was more at stake as compared to village. The testimony of PW6 Mukesh does not inspire confidence and raises serious doubt about his presence at the place of occurrence. His statement is wholly unreliable and we are of considered opinion that the same cannot be made basis for convicting the respondents. 

The other witness of fact Chottey Lal PW5 who is uncle of the deceased victim, had also not witnessed the episode. His statement is based on hearsay and a belief that the accused respondents were feeling inimical as the victim was in the process of installing another tubewell. The other witnesses examined by the prosecution are formal witnesses and their testimony in no manner helps the prosecution in bringing home the charges against the accused respondents. Thus, in absence of any reliable evidence to prove that accused respondents were the perpetrators of crime, we find no good reason to grant leave to appeal to the State and accordingly, the application moved in this regard is rejected. In consequence, the appeal stands dismissed. 

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

Order Date :- 6.8.2021/Jaideep/-