State Of U.P. vs Girdhari And Ors.
2022 Latest Caselaw 8797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 12
 
Case :- GOVERNMENT APPEAL No. - 1000288 of 2017
 
Appellant :- State of U.P.
 
Respondent :- Girdhari And Ors.
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Ashwani Kumar Singh
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Rajesh Kumar, learned A.G.A. for the State as well as learned counsel for the respondents and perused the record.

By means of instant application moved under Section 378 (3) of the Cr.P.C., the State has requested for grant of leave to file appeal against the impugned judgment and order dated 31.05.2017 passed by the Additional District and Sessions Judge, Court No. 5, Barabanki in Sessions Trial No. 498 of 2011, arising out of Case Crime No. 357 of 2008, under Sections 147, 323, 325, 308, 354, 504 and 506 of I.P.C., Police Station Tikait Nagar, District Barabanki, whereby opposite parties no. 1 to 4 and 6 have been acquitted of the charges framed under Sections 147, 308/149, 325/149, 323/149, 504 and 506 I.P.C., while opposite party no.3/Dharmu @ Dharmraj has been acquitted of the charge framed under Section 354 I.P.C.

The story of the prosecution as is emerging from the record is that it was on 16.09.2008 the informant Dinesh Kumar had submitted a written application (Exhibit-ka-1) before the Station House Officer, Police Station Tikait Nagar, District Barabanki alleging therein that on 16.09.2008 at 5:00 am. in the morning his sister Kalavati had gone out to ease herself and when she was washing her hands at the hand pump the accused Dharmu had caught hold of her hands with bad intention and on an alarm raised by Kalavati, the family members of the informant had arrived, however, the dispute was resolved. In the same night at about 8:00 pm. the accused persons named in the first information report with common object came to the house of the informant and started abusing the informant and on being persuaded not to abuse they started assaulting the informant, his father Mansharam and other persons of his family whereby his father had fallen on the ground and became unconscious. On an alarm raised by them, co-villagers Rambaran, Rampal, Maikulal, Maniram and Budhram, etc. had arrived at the scene and rescued the informant and on seeing them, the accused persons had fled away from the scene.

On the basis of this written application, the F.I.R. under Sections 147, 323, 354, 504, 506 and 308 I.P.C. was registered at Case Crime No. 357 of 2008 and the substance of the F.I.R. was entered into the General Diary of the police station and the investigation of the case was entrusted to Sub Inspector S.S. Dixit, who recorded the statement of the prosecution witnesses, inspected the spot and prepared Site Plan (Exhibit-ka-11) and after the completion of the investigation filed charge-sheet against the accused persons Girdhari, Sahajram, Dharmu @ Dharmraj, Naumilal, Parashuram and Mayaram under Sections 147, 323, 325, 308, 354, 504 and 506 I.P.C.

Perusal of the record would reveal that in the incident, Mansharam, Kalavati, Dinesh (Informant) and Ram Devi were stated to have sustained injuries while Mansharam had sustained a lacerated wound, muscle deep on right elbow and swelling on the back of left leg and also on ''occipital region' of his head as well as a contusion on his left buttock and in X-ray his shoulder was also found fractured, in the injury report pertaining to Kalavati, swelling on her forehead was found and this injury was kept under observation and was also referred to E.N.T. Surgeon. In the injury report of the informant Dinesh, two lacerated wounds on his scalp and complaint of pain was told on his back and with regard to the injured Ram Devi, complaint of pain on her left forearm, an abrasion on the back of right side of her chest and also complaint of pain in the abdomen was noticed. However, none of the injured except Mansharam sustained fracture.

During the course of trial one of the accused namely Parashuram had died and the proceedings of the case was abetted with regard to him.

The trial Court had framed the charge against accused persons namely Girdhari, Sahajram, Dharmu @ Dharmraj, Naumilal and Mayaram, under Sections 147, 308/149, 325/149, 323/149, 504 and 506 I.P.C., while against accused person Dharmu @ Dharmraj charge only under Section 354 I.P.C. was framed. Accused persons denied the charges and claimed trial.

The prosecution in order to prove its case had examined P.W.-1/Dinesh Kumar, P.W.-2/Mansharam, P.W.-3/Kalavati, P.W.-4/Dr. Sanjay Kumar, P.W.-5/Constable Ajay Kumar Dwivedi, P.W.-6/Dr. S.K. Singh, P.W.-7/S.I. Shyam Sunder Dixit, P.W.-8/Sub Inspector Ramesh Chand, P.W.-9/Ram Devi and P.W.-10/Maniram Kori and also relied on Injury report of Mansharam (Exhibit-ka-2), Injury report of Kalavati (Exhibit-ka-3), Injury report of Dinesh Kumar (Exhibit-ka-4), Injury report of Ram Devi (Exhibit-ka-5), Chik F.I.R. (Exhibit-ka-6), Carbon Copy of G.D. Qayami (Exhibit-ka-7), X-ray report of injured Dinesh Kumar (Exhibit-ka-8), X-ray report of Mansharam (Exhibit-ka-10), Site Plans (Exhibit-ka-11 and 12), Charge-sheet (Exhibit-ka-13) and ''Tehrir' on the basis of which the first information report was registered (Exhibit-ka-1).

After the conclusion of the evidence of the prosecution, the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein the accused persons have stated that the prosecution witnesses are deposing falsely on the basis of political enmity, while accused Dharmu @ Dharmraj had added that the informant' side and the accused persons were having enmity on the basis of ''boundary dispute' and the injured persons have been assaulted by some unknown persons in the night, however, the accused persons have been falsely implicated. The accused persons in support of their case have also produced D.W.-1/Budhram and D.W.-2/Rampal.

The trial Court after appreciating the evidence available on record found that the prosecution has failed to prove its case beyond reasonable doubt and thus, acquitted the accused persons of the charges framed against them vide impugned judgment and order dated 31.05.2017. Aggrieved by the same, the State has filed this application for grant of leave.

Learned A.G.A. while pressing the application for grant of leave submits that the trial Court has totally ignored the evidence of injured prosecution witnesses and has given much weightage to the minor contradictions which were not touching the route of the prosecution case. Elaborating his submission further, it is vehemently submitted that if it has been proved that the injured persons had sustained injuries in the same incident then the evidence of the injured witnesses is to be given much importance and there was no reason for the trial Court to have not accepted the otherwise cogent and trustworthy testimony of the injured witnesses.

It is also submitted that even if some of the prosecution witnesses had not supported the version of the prosecution, the duty of the trial Court was to appreciate the evidence of the injured witnesses in right perspective when the doctor was of the clear view that the injuries sustained by the injured witnesses were of the time when the incident is reported to have occurred, thus, the trial Court has committed material illegality in appreciating the evidence available on record and has acquitted the accused persons on ''surmises and conjectures'.

I have perused the record as well as the Judgment of the trial Court in the background of the submissions made by learned A.G.A. and found that the trial Court had acquitted the acquitted the accused persons on following grounds:-

(I) That in the statements of the prosecution witnesses it is stated that the real dispute of the informant's side is with Jaishanker Mishra and it was Jaishanker Mishra and his family members who had assaulted the informant and other injured persons.

(II) The incident is of night and the witnesses as well as the injured witnesses could not identify the assailants properly.

(III) D.W.-1/Budhram and D.W.-2/Rampal were cited in the charge-sheet as eye witnesses but have been produced by the accused persons as D.W.-1 and D.W.-2 and they have not supported the prosecutions' version and there is no difference between the prosecution or defence witnesses so far as the appreciation of their evidence is concerned.

(IV) P.W.-9/Ram Devi is an injured witness and also the mother of the another injured person Kalavati, whose molestation was attributed to one of the co-accused person, however, she had not supported the prosecution version as also P.W.-10 Maniram Kori, who is also an independent eye witness, has also not supported the version of the prosecution.

(V) During the course of trial P.W.-1/informant Dinesh, P.W.-2/Mansharam and P.W.-3/Kalavati after recording of their evidence had submitted their affidavits vide application dated 30.05.2017, which had been taken on record by the Presiding Officer and in those affidavits they have disowned the occurrence and had stated that they were not assaulted by the accused persons.

The question as to how the application for grant of leave to appeal made under Section 378(3) of the Code should be decided by the High Court and what are the parameters which this Court should keep in mind remains no more 'res integra '. This Issue has been examined and settled by the Hon'ble the Apex Court in cases of ''Sanwat Singh and others vs. State of Rajasthan, AIR 1961SC715, Ajmer Singh v. State of Punjab, 1953 SCR 418, Sadhu Saran Singh Vs. State of Uttar Pradesh and Others, 2016 CrL. J. 1908 and State of Maharashtra vs. Sujay Mangesh Poyarekar, MANU/SC/8073/2008".

From the above mentioned decisions some general principles which may emerge are that the appellate court is having full power to review or re- appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction on exercise of such power by the appellate court and that the appellate court may reach at it's own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons gets fortified, reaffirmed and strengthened. The golden principle which runs through the web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.

A careful perusal of the record and the testimonies of the prosecution witnesses recorded before the court below would reveal that though P.W.-1/Dinesh Kumar, P.W.-2/Mansharam and P.W.-3/Kalavati had supported the case of prosecution in their evidence, but on 30.05.2017 P.W.-1/Informant Dinesh Kumar had moved an application enclosing therewith his affidavit as well as the affidavits of injured Mansharam and Kalavati, wherein they have stated that they had not seen any person molesting victim Kalavati and some persons had assaulted them on 16.09.2008 at 8:00 pm. when there was dark and they could not recognize/identify those who assaulted them and it was only on the information given by the co-villagers they had taken the name of the accused persons, however, they had not seen the accused persons assaulting them.

Perusal of the record would also reveal that P.W.-9/Ram Devi is the mother of P.W.-3/Kalavati and the genesis of the incident is stated to have begun with her, as one of the accused Dharmu @ Dharmraj had molested P.W.-3/Kalavati, but the mother of Kalavati namely P.W.-9/Ram Devi in her statement had categorically stated that the accused persons have not assaulted them and on relevant date and time and there was a huge crowd and due to the accumulation of mob she had sustained injuries and the accused persons had not assaulted her. This witness was declared hostile and in cross-examination has disowned her statement recorded under Section 161 Cr.P.C. Similarly, another independent witness Maniram Kori in his statement had also stated that he did not witness any incident and had not seen the accused persons assaulting the informant and other injured persons.

Significantly, the two other witnesses who were cited by the prosecution in the charge sheet namely D.W.-1/Budhram and D.W.-2/Rampal had stated that they at the relevant time were present within the vicinity of the scene of crime, but they did not hear or see any scuffle or 'marpeet' and they were sitting with the accused persons and no incident as claimed by the prosecution had occurred.

Importantly, one of the injured Mansharam who had also sustained fracture of his arm had stated at one place of his cross-examination that it was Jaishanker Maharaj and his father who had assaulted him. Thus, in the background of the above evidence, the trial Court was of the view that the mother of the injured Kalavati namely Ram Devi who was herself an injured witness has not supported the version of the prosecution and the injured Mansharam has stated that it was Jaishanker Maharaj and his family who had assaulted them and also the incident is of night and affidavits denying the incident have also been given, which were also taken on record, by P.W.-1/Dinesh Kumar, P.W.-2/Mansharam and P.W.-3/Kalavati and other independent witnesses of the crime have not supported the version of the prosecution and the incident is of night. In the considered opinion of this Court, the view which has been adopted by the trial Court could not be termed either as unreasonable or perverse or against the evidence available on record. It has to be recalled that every accused person is having presumption of innocence in his favour and the same is fortified by his acquittal, so very strong and cogent grounds are required for interfering in the judgment of acquittal while in this case having regard to above mentioned facts, evidence and legal position, I am of the considered view that the prosecution had failed to prove its case beyond reasonable doubt before the trial Court and the view which has been taken by the trial Court could not be termed as either perverse or unreasonable rather the view adopted by the trial Court is a possible and probable view, which is emerging from the appreciation of evidence made available on record. Therefore, I am satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial Court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.

Since application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive. Consequently, the appeal is also dismissed.

Order Date:- 02.08.2022

Praveen