State Of Up vs Dushyant And Another
2022 Latest Caselaw 1180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 08.03.2022
 
Delivered on 12-04-2022
 
Case :- GOVERNMENT APPEAL No. - 61 of 2022 (e-court)
 

 
Appellant :- State of U.P.
 
Respondent :- Dushyant And Another
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Subhash Vidyarthi,J.

(Per Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Phool Singh, the learned A.G.A. on the application under Section 378 (3) Cr.P.C. seeking leave to file appeal against the judgment and order dated 27.10.2021 passed by the Additional District and Sessions Judge, Court No. 14, Muzaffarnagar in S.T. No. 1380 of 2015 arising out of Case Crime No. 214 of 2015 under Sections 307/34 I.P.C., P.S. Charthawal, District Muzaffarnagar.

2. Briefly stated, the prosecution case is that Dushyant (respondent no.1) had borrowed Rs. 22,000/- from the informant's brother, Prahlad. On 25.05.2015, Prahlad demanded return of the aforesaid amount upon which the respondent no.1 - Dushyant and his brother - the respondent no.2 said that they would not refund a single rupee as he had insulted them by disclosing this fact in the village and in case he demanded the money, they would shoot him. On 31.05.2015, the informant's brother Prahlad and one Anil of the village had gone to irrigate their fields. The accused-respondents came to the fields at 10:00 p.m. carrying country made pistols in their hands and both of them fired at the informant and his brother with the the intention to kill them. The informant had a narrow escape, but the gun shot fired at Prahlad passed through his hip. Upon an alarm being raised, the accused - respondents ran away.

3. The accused persons were arrested on 03.06.2015 and a country made pistol, an empty cartridge and one live cartridge were recovered from the respondent no.1. Both the accused persons were charged for commission of offence under Section 307/34 I.P.C. and the accused-respondent no.1 was also charged for the offence under Section 25 of the Arms Act.

4. During trial, the prosecution examined P.W.1 - Prahlad Singh, the injured witness and P.W. 2 - Anil Kumar, another eye witness.

5. After analysing the evidence on record, the learned court below came to a conclusion that the prosecution could not prove the charge against the accused persons beyond reasonable doubt and, therefore, the accused persons were acquitted of all the charges.

6. The State has filed the application under Section 378 (3) Cr.P.C. seeking leave to file appeal against the aforesaid judgment and order dated 27.10.2021 mainly on the ground that the Trial Court has not appreciated the evidence on record properly and there was sufficient evidence regarding the incident. The injury report of P.W.1 as also the recovery memo regarding recovery of fire arm weapon of the accused - respondent no.1 have not been appreciated by the learned Trial Court and the learned court below has acquitted the accused -respondents erroneously.

7. The learned A.G.A. has submitted that the injured Prahlad Singh, who was examined as P.W.1, has categorically stated that the accused -respondents had shot at him with the pistol. However, when we scrutinized the entire evidence, we find that there are serious contradictions in the narration made in the F.I.R. and the statements of the witnesses.

8. In the FIR, the informant Ashok Tyagi (P.W. 8) stated that on 31.05.2015, his brother Prahlad and one Anil Singh son of Seva Ram of the same village had gone to irrigate the field and he did not say that he was also accompanying those persons. Afterwards he alleged that both the accused persons shot at him and at his brother and he had a narrow escape, whereas his brother was shot.

9. The manner in which the High Court should exercise its power of scrutiny in an appeal filed against an order of acquittal has been explained by the Hon'ble Supreme Court in Jayamma v. State of Karnataka, (2021) 6 SCC 213, in the following words:-

"the power of scrutiny exercisable by the High Court under Section 378 Cr.P.C. should not be routinely invoked where the view formed by the trial court was a "possible view". The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to reappreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

10. We have heard the submissions of the learned AGA and gone through the record in light of the law laid down by the Hon'ble Supreme Court in Jayamma (supra) so as to ascertain whether the findings of the learned court below prima facie appear to be perverse so as to warrant grant of leave to file appeal to the State for a detailed scrutiny by this Court in exercise of its appellate jurisdiction.

11. P.W. 1 has stated that his brother Ashok Yadav (the informant) and cousin Anil were with him. Both the accused persons were sitting in the field of Vishnu Pandit. P.W.1 recognized them in the light of a torch. They shot at P.W. 1 from behind which went through his hip. He categorically stated that as the gun shot was fired from behind, he did not know as to who fired the shot. He said that P.W.2 - Anil and Ashok (informant) came there after the accused persons had ran away. The informant stated that he was present and at the time and at the place of incident and the accused persons had fired at him and he had a narrow escape whereas P.W.1 stated that the informant reached there after the accused persons had ran away, therefore, there are serious contradiction in the statements of the informant and that of P.W.1. This discrepancy in the statement of P.W.1 and the version of FIR of the informant makes the FIR doubtful.

12. In his cross-examination, P.W.1 - Prahlad Singh stated that the accused persons had borrowed Rs. 22,000/- from him about 7-8 years ago. He did not obtain any receipt. He had given Rs.22,000/- rupees to the accused after borrowing Rs. 10,000/- from Satish, Rs.10,000/- from his mother and Rs.2,000/- from his own pocket. P.W.1 and his brother (P.W.8) have 24 bighas of land whereas the accused persons have 25-26 bighas land. Satish is the son of uncle of P.W.1 and the accused.

13. P.W.- 4 Dr. Babu Ram, who conducted the medical examination of the injured, stated that the injured had one fire arm entry wound on his left hip and an exit wound on his inguinal region.

14. The informant has been examined as P.W.8, who stated that his brother Prahlad did not demand any money from the accused persons on 25.05.2015 in his presence. He did not see any incident. Some persons of the village had got his signatures on the paper saying that there was some disputes between two parties in the village and there settlement was to be written on it. He did not sign any paper in which the respondents were made a case. P.W. 8 was declared to be a hostile witness.

15. P.W.5 - S.I. Sita Ram has stated in his cross-examination that during investigation, P.W. 1 Prahlad had informed him that the accused - respondent no.1 Dushyant had borrowed Rs. 2,200/-, whereas Prahlad has stated in his statement that Dushyant had borrowed Rs.22,000/-.

16. The story of borrowing Rs. 22,000/- appears to be doubtful from the evidence on record as instead of Prahlad borrowing Rs. 10,000/- from Satish for giving the lending the amount to Prahad, P.W.1 himself could have borrowed the money directly from Satish, as Satish is son of uncle of the accused persons. Moreover, P.W.1 has stated that the accused persons took Rs. 22,000/- whereas as per the Investigating Officer P.W.5, the amount borrowed was Rs. 2,200/-.

17. Be that as it may, when the amount had been borrowed 7-8 years ago and there was no dispute regarding the money during this period, it does not appear natural that suddenly the accused shot at P.W.1 in relation to the money.

18. Although P.W.1 has stated in his cross examination that when he had demanded the money from the respondent no.1 - Dushyant, there were 2-3 other persons also but none of the said persons have been produced before the court, which raises a doubt against the story set up by P.W.1. P.W.1 has further stated in his cross examination that his brother Ashok (the informant) had no knowledge that the accused persons had borrowed Rs.22,000/- from him and the incident took place when he demanded refund of the amount. However, Ashok has made a mention of this fact in the FIR lodged on 02.06.2015, which belies the statement of PW-1 that Ashok had no knowledge that the accused persons had borrowed Rs.22,000/- from him.

19. P.W.8 (the informant) has denied the incident as also the F.I.R. and he said that his signatures had been obtained on a blank paper. From the statement of P.W. 8 also the report become doubtful.

20. P.W.1 - Prahlad Singh has stated that the accused persons had fired at him from behind and he does not know as to who shot him.

21. Learned A.G.A. has further submitted that P.W.2 - Anil Kumar has categorically stated that both the accused persons had fired gun shots at the injured. However, this submission is not substantiated from the statement of the witnesses. P.W.2 - Anil Kumar has stated in his cross examination that when he saw, Prahlad was lying on the road and when he asked as to what happened, he told that someone shot at him and ran away. When P.W.2 asked as to who shot him, P.W.1 said that he could see him and some one shot him from behind. P.W.2 has categorically stated in his cross examination that he did not see any person firing at the injured Prahlad. Therefore the statement of P.W.2 does not help the prosecution at all.

22. The learned AGA has next argued that the pistol had been recovered from the accused-respondent no.1 - Dushyant and the recovery has been verified by P.W.9 - retired S.I. Jai Kishan. However, a perusal of the statement of P.W. 9 shows that he has merely proved preparation of the recovery memo prepared by S.I. Sita Ram, who has stated that he did not find any blood stains, empty cartridge or bullet etc. at the place of occurrence. He did not find any sign of any altercation or any tyre marks etc. He did not know the boundaries of the field or the crops which were being cultivated in the fields at the time of the inspection. During inspection the informant had told that the incident occurred in the field of Vishnu whereas the F.I.R. states the place of incident to be the field of the informant. He did not know as to what the accused persons were wearing at the time of their arrest. No money or any other other thing was recovered from the accused persons. The accused persons were arrested at about 04:00 a.m. from a field and they had seen the accused persons from a distance of 100 meters. The accused persons did not make any efforts to run away from the police.

23. The statement of P.W.-5 that he saw the accused persons at 04:00 a.m. from a distance of 100 meters, appears to be doubtful and it is also highly unnatural that the accused-respondent no.1 was carrying the pistol with an empty cartridge in its barrel and a live cartridge with him even after four days after the incident. There is no independent witness of the alleged recovery of the pistol and the cartridges.

24. From the aforesaid discussion, it appears that prima facie the findings of the learned Court below that the prosecution could not prove its case beyond reasonable doubt, are based on a proper appreciation of the evidence on record and the said finding is not perverse.

25. Keeping in view the law laid down by the Supreme Court in the case of Jayamma (Supra), we find that the view taken by the learned court below is certainly a "possible view" which needs no further scrutiny or interference.

26. The State has failed to make out any ground for grant of leave to file appeal against the aforesaid judgment and order dated 27.10.2021.

27. The Application under Section 378 (3) Cr.P.C. filed by the State is, accordingly, rejected.

28. As the application seeking leave to file appeal has been rejected, the appeal also stands dismissed at the stage of admission itself.

Order Date: 12-04-2022

Ashish Prasad