Allahabad High Court
State Of U.P. vs Ramesh And Ors. on 3 August, 2022
Bench: Vivek Kumar Birla, Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 8452 of 2009
Appellant :- State of U.P.
Respondent :- Ramesh And Ors.
Counsel for Appellant :- Govt. Advocate
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Ms. Nand Prabha , learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 17.7.2009 passed by the Additional Sessions Judge, Court No. 5, District Kanpur Dehat in Session Trial No. 188 of 2008 (State vs. Ramesh and other) arising out of Case Crime No. 197 of 2007, under Sections 304 IPC, P.S. Roora, District Kanpur Dehat, whereby the accused, who are three in number, have been acquitted from the charges under Sections 304 IPC.
3. Prosecution story, in brief, is that the complainant Anoop Singh gave a written report on 30.9.2006 at P.S. Roora stating therein that some altercation took place between his brother Balwan and a villager Ramesh regarding moving of pigs in his filed and due to the aforesaid enmity on 22.9.2006 at 9:00 o'clock when his brother Balwan passed through the house of Ramesh on a tractor, then Ramesh intercepted the tractor and abused him and thereafter accused respondents herein beat him mercilessly by kick and fist, due to which he received several injuries on his person. Firstly he was treated at a nursing home at Akbarpur and thereafter his treatment was going on at Hallet Hospital, Kanpur but due to injuries received in intestine his brother Balwan died on 28.9.2006. The incident was witnesses by the villagers Bhaiya Lal and Sipahi Lal. On the basis of aforesaid incident, a first information report was lodged being Case Crime No. 197 of 2006 under Section 304 IPC, P.S. Roora, District Kanpur Dehat.
4. In support of prosecution case, PW-1 Anoop Sing, PW-2 Sub Inspector Bheem Shankar Shukla (I.O.), PW-3 Dr. S.N. Bajpai and PW-4 Sub Inspector D.R. Aray were produced and examined before the Court below.
5. The judgement of acquittal was passed on the ground that there was a delay of 8 days in lodging the first information report. There is only one witness PW-1 Anoop Singh (informant) who had stated that the incident of beating had taken place on 22.9.2006 at 9:00 o'clock in front of the house of Ramesh when his brother was driving back his tractor and he was stopped and beaten by Ramesh and his wife with kick and fist. He stated that his brother suffered injuries and as per allegation firstly he was treated at a nursing home at Akbarpur and thereafter he was taken to Hallet Hospital at Kanpur where he died on 28.9.2006 does not inspire confidence in view of the statement of PW-1 himself that he received the information about the injury caused to his brother and that as per site plan the spot where the incident had taken place is different and not the front of the house of Ramesh (accused herein). It was further found that no evidence regarding treatment at nursing home at Akbarpur was placed on record and even if he was treated at nursing home at Akbarpur and thereafter at Hallet Hospital, Kanpur, there is no occasion not to file the first information report during treatment in case serious injury was caused by the accused persons. The trial court further found that the first information report has been lodged after post-mortem report. It was further found that out of two eyewitnesses, one Bhaiya Lal had already died, therefore, could not be produced and the other alleged eyewitness Sipahi Lal was not found at the address given. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused persons were given benefit of doubt and judgement of acquittal was passed.
6. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that there was cogent evidence to convict the accused persons herein. She submits that the PW-1 Anoop Singh supported the prosecution version and even the delay in lodging the first information report is inconsequential, inasmuch as family members were taking care of the injured person, who had suffered serious injury as per post-mortem report. She submits that under such circumstances, she submits that non-production of documents regarding treatment at nursing home at Akbarpur is immaterial. Submission, therefore, is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.
7. We have considered the submissions and have perused the record.
8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.
11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record, we find that the first information report was lodged after preparation of the post-mortem report. It is also noticeable that although in the first information report allegations have been levelled against the three accused persons, however, in his cross-examination PW-1 had clearly admitted that he came to know about the incident from his mother when she was informed by one Anuj that his brother was lying in the injured condition on road in front of the house of accused Ramesh. Thereafter, they brought his injured brother to his house. The motive of causing such injury is that some dispute had taken place in the morning, however, this was not proved by PW-1 in his statement. Two eyewitnesses were named, however, one could not be produced due to his death and the other was not found at the address given. It is not understandable as to why incorrect address of the alleged eyewitness was given. Moreover, in the site plan the spot as alleged in the first information report is also different and and not in front of the house of Ramesh.
14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
15. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present government appeal is also dismissed.
Order Date :- 3.8.2022
Abhishek
