State Of U.P. vs Laxmi Chandra And Another
2022 Latest Caselaw 8991 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 
Case :- GOVERNMENT APPEAL No. - 424 of 2017
 
Appellant :- State of U.P.
 
Respondent :- Laxmi Chandra and Another
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- O.P.Tewari
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Rajesh Kumar, learned A.G.A. for the State-appellant as well as Shri O.P. Tiwari, learned counsel for the opposite parties and perused the record.

The instant appeal has been preferred by the State against the judgement and order dated 12.08.2008 passed by the Special Judge S.C./S.T. Act, Unnao in Sessions Trial No.230 of 1998, arising out of Case Crime No.1594 of 1996, under Sections 452, 323/34, 504, 506 I.P.C. and Section 3(1)(x) of the S.C./S.T. Act, Police Station Kotwali, District Unnao, whereby the opposite party nos.1 and 2 have been acquitted of all the charges framed against them.

Leave to appeal has already been granted to the State vide order dated 06.03.2017 passed by this Court.

Brief facts with regard to the instant appeal are to the tune that F.I.R. was lodged by one Devi Shankar Tiwari, Advocate on 21.11.1996 by moving an application to the Superintendent of Police, Unnao alleging therein that on 17.11.1996 accused Laxmi Chandra in an intoxicated condition was urinating in his 'Varandah' and when asked to refrain, he intimidated and abused the informant and when the local police had gone to the house of the Laxmi Chandra, he became annoyed and on 19.11.1996 had entered into his 'Varandah', where on Jai Shankar Dhobi used to iron the clothes and started assaulting him. When the first informant asked the accused persons to refrain from assaulting Jai Shankar Dhobi, they also assaulted the informant. On an alarm raised by the informant and Jai Shankar Dhobi witnesses Radha Krishna and Deepu had arrived at the scene and on seeing them, the accused persons had fled away after intimidating and abusing the informant.

On the basis of this application, an F.I.R. was registered against the accused persons Laxmi Chandra and Jagat Kishor on 22.11.1996 at 08:15pm. at Police Station Kotwali, District Unnao and the investigation of the case was entrusted to Shri H.N. Pandey.

After investigation, charge sheet was filed against the accused persons under Sections 452, 323/34, 504, 506 I.P.C. and Section 3(1)(x) of the S.C./S.T. Act. Charges were also framed by the trial court against the accused persons under Sections 452, 323/34, 504, 506 I.P.C. and Section 3(1)(x) of the S.C./S.T. Act, however, the accused persons denied the charges and claimed trial.

In order to prove its case beyond reasonable doubt, prosecution had examined Devi Shankar Tiwari as P.W.-1, Constable Chandrika Prasad as P.W.-2, Jai Shankar Dhobi as P.W.-3 and Circle Officer Ram Chandra Yadav as P.W.-4. The prosecution has also relied on the documentary evidence i.e. application on the basis of which F.I.R. was registered exhibit Ka-1, chik F.I.R. exhibit Ka-2, G.D. exhibit Ka-3, report of police record room pertaining to the destruction of the G.D. exhibit Ka-4, charge sheet exhibit Ka-5, site plan exhibit Ka-6.

After completion of the evidence of the prosecution, statement of accused persons was recorded under Section 313 Cr.P.C., wherein they have stated to have been falsely implicated and also the fact that the cousin of the Laxmi Chandra and nephew of accused Jagat Kishor had died in a road traffic accident, wherein the informant had promised to take 10% of the awarded amount as his fee, however, subsequently he started demanding Rs.50,000/- and when this money was not given, a false case has been registered against them.

The trial court after appreciating the evidence available on record came to the conclusion that the prosecution has miserably failed to prove its case beyond reasonable doubt and thus acquitted the accused persons of the charges framed against them. Aggrieved by the same, the State has filed this appeal against the impugned judgement of the acquittal passed by the trial court.

Learned A.G.A. while drawing attention of this Court towards the judgement of the trial court submits that the trial court has not considered the evidence of the prosecution made available on record in right perspective and has acquitted the accused persons only on the basis of surmises and conjunctures. It is further submitted that the trial court has given much weight-age to the minor contradictions occurred in the testimony of the prosecution witnesses while it was the duty of the trial court to have ignored minor contradictions as these contradictions are natural and the core of the prosecution case was not intact before the trial court and grave illegality has been committed by the trial court. So far as the appreciation of evidence of the prosecution witnesses is concerned and the prosecution has proved its case beyond reasonable doubt, the opposite parties are liable to be convicted for the offence under Sections 452, 323/34, 504, 506 I.P.C. and Section 3(1)(x) of the S.C./S.T. Act.

Shri O.P. Tiwari, learned counsel for the opposite parties/accused persons submits that the accused persons were falsely implicated in this case only on account of the fact that the informant is an Advocate and he was demanding more than the agreed fee in connection with the motor accident claims case and when the accused persons denied to pay him more a false F.I.R. was lodged against them.

It is further submitted that the case of the prosecution as has been canvassed by the statement of the prosecution witnesses is highly improbable and could not be believed. The testimony of the prosecution witnesses is having inherent weakness and the statement of the prosecution witnesses could not be termed as reliable or trustworthy and, therefore, no illegality has been committed by the trial court in exonerating the accused persons. Thus the appeal filed by the State is liable to be dismissed.

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 was examined by the Hon'ble the Apex Court in the case of Ajmer Singh v. State of Punjab, 1953 SCR 418 wherein the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached Apex Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined by him. It was also contended that the High Court committed an error of law and the Hon'ble Supreme Court found substance in the argument that when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. It was further held that in an appeal, the High Court had full power to review the evidence upon which the order of acquittal was founded ?

Upholding the contention, it has also been held in para 6 as under ;

"We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."

In the case of Sanwat Singh and others v. State of Rajasthan, AIR 1961 SC 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and others vs. The King Emperor AIR 1934 PC 227 (2) and many other authroities Hon'ble the Apex Court on the point in issue held as under :-

"Para 16- The foregoing discussion yields the following results :

(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified".

Hon'ble the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in 2016 Crlj 1908 has considered this difference and has observed as under:

"18 Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasiva V. State of Kerala 1998 SCC (Cri) 1320 has held:

"The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal."

19. This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."

In State of Maharashtra vs. Sujay Mangesh Poyarekar MANU/SC/8073/2008 Hon'ble Supreme Court held as under:-

"21. 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.

22. 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.

23. 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 reappreciation, review or reconsideration of evidence, the appellate Court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave."

From the above decisions some general principles which may emerge out 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 in exercise of such power by the appellate court and the appellate court may reach at it is 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 has been fortified, reaffirmed, strengthened and also 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 a doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.

I have considered the submissions raised by learned counsel for the parties and have also perused the record. the trial court has doubted the case of the prosecution on the score that though it has been alleged by the informant that on 17.11.1996 information of the incident was given at the Police Station Kotwali, District Unnao, but no copy of any application has been produced on record and thus no information pertaining to the incident allegedly occurred on 17.11.1996 was given to the Superintendent of Police, Unnao also, therefore, the trial court was of the view that the fact of giving any information with regard to the incident allegedly occurred on 17.11.1996 has not been proved by the prosecution.

The trial court has also doubted the case of the prosecution on the score that when the fact of giving any information to the police with regard to the occurrence as happened on 17.11.1996 has not been proved, the subsequent incident allegedly occurred on 19.11.1996 also become doubtful as the case of the prosecution was to the tune that with regard to the incident occurred on 17.11.1996, a complaint was made by informant at the Kotwali and the local police had come to the house of the accused persons as they were annoyed by the arrival of the police on 17.11.1996, they had committed the incident on 19.11.1996.

There is established enmity between the parties on account of incident allegedly occurred on 17.11.1996 and there is no logic as to why the opposite party Laxmi Chandra would assault Jai Shankar Dhobi instead of the informant. The trial court has also doubted the testimony of witness Jai Shankar Dhobi on the score that the informant and witness Jai Shankar Dhobi are the resident of one and same village and admittedly he was doing business of ironing the clothes in the 'Varandah' of the informant, thus in the considered opinion of the trial court, Jai Shankar Dhobi was an interested witness.

The other point, which has found favour in acquitting the accused persons by the trial court, was the admission of the informant with regard to the death of the nephew of Jagat Kishor in the year 1981-82 due to road traffic accident and that the informant was engaged as an Advocate and was doing pairavi of the case at Unnao and has also filed his 'vakalatnama' and that motor accident claims case was also decreed. The defence of the accused persons was to the tune that only on account of the dispute pertaining to the fee of that case, the instant case has been instituted against them. The trial court has also doubted the case of the prosecution on the score that no independent witness of any of the incident i.e. of 17.11.1996 or of 19.11.1996 has been produced by the prosecution.

Lastly, the trial court also noticed that allegation of assaulting Jai Shankar Dhobi with the 'but' of the licensed gun has been made, but no injury has been sustained by the Jai Shankar Dhobi, which is highly improbable and Jai Shankar Dhobi in his statement as nowhere stated that he was assaulted by the accused persons with their licensed gun.

Perusal of the evidence made available by the prosecution before the trial court would reveal that the prosecution has chosen to testify only two witnesses in its support i.e. P.W.-1 Devi Shankar Tiwari, P.W.-3 Jai Shankar Dhobi while P.W.-2 is the investigating of the case. The perusal of the testimony of P.W-3 Jai Shankar Dhobi would reveal that in his in chief examination, he has categorically stated that he was assaulted by the accused persons and also that a scuffle had taken place between the accused persons and informant Devi Shankar Tiwari. In his cross examination this witness has admitted that he and informant are the resident of the one and same village and are neighbours. He has also stated that accused Jagat Kishor is aged about 50-55 years, while the court in its observation as found the age of accused Jagat Kishor as 65 years. In his cross examination, this witness has specifically stated that he could not remember the date of the incident and also that when accused Laxmi Chandra had come to him for the purpose of ironing his clothes, whether any other customer was standing nearby. Significantly this witness while in cross examination has admitted that he was abused by the accused Laxmi Chandra, but he did not go to the police station for lodging a report and also admitted that he did not make any complainant of Laxmi Chandra even to any co-villager. He also admitted that he did not undergo any medical examination, but subsequently stated that he was medically examined on 22.11.1996.

Perusal of the record would reveal that there is no injury report placed on record pertaining to any injury sustained by this witness. Importantly this witness has also admitted that he had not made any complaint with regard to the incident happened with him. It is admitted by him that at the time of incident, there were 2-3 persons, but he could not remember their name and also that after assault he ran outside while the informant in the F.I.R. as well as in his statement recorded before the trial court as P.W.-1 had stated that the victim Jai Shankar Dhobi had run inside his house. Significantly witness Jai Shankar Dhobi has also stated in his cross examination that he was assaulted for 5-10 minutes with fists and kicks and impression of fingers were visible on his cheek and he had gone to Krishna Dei Khera. If the evidence of this star witness of the incident namely Jai Shankar Dhobi is seen in totality, an impression would be that this witness is not reliable and trustworthy. Admittedly the informant is an Advocate and the incident alleged to have occurred with Jai Shankar Dhobi, therefore, the testimony of witness Jai Shankar Dhobi was of utmost important. Having regard to all the facts and circumstances and for the reason placed herein-above, the witness Jai Shankar Dhobi could not be relied on.

In view of above, in the considered opinion of this Court, no illegality has been committed by the trial court in acquitting the accused persons of the charges framed against them.

A criminal trial proceeds with the presumption of innocence of the accused persons and this presumption of innocence stands fortified with the acquittal of the accused persons. So very strong and cogent reasons must exist for interfering in the judgment of acquittal.

Keeping in view the aforesaid weaknesses of the prosecution case, we are of the considered view that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be illegal, illogical and improbable and not based on material on record. So, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference 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 :- 3.8.2022

Anupam S/-