State Of U.P. vs Sariya
2022 Latest Caselaw 9190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 1031 of 2007
 

 
Appellant :- State of U.P.
 
Respondent :- Sariya
 
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 6.10.2006 passed by the Additional Sessions Judge, Mahoba in Session Trial No. 83 of 2006 (State vs. Sariya) arising out of Case Crime No. 166 of 2000, under Section 307/34 IPC IPC, P.S. Roaro, District Hamirpur, whereby the accused has been acquitted from the charges under Sections 307/34 IPC.

3. Prosecution story, in nutshell is that the complainant Mahipal Singh on 20.8.2000 at 11:55 am gave a report at the police station to the effect that in the morning at 9:30 am the complainant Mahipal along with his mother Bharatraja and father Durjan Singh were sitting near Panchayat Bhawan. At the same time, three persons, namely Bhaiya Deen Lodhi armed with SBBL gun and accused Sariya and one other person armed with Addhi came there and surrounded his father Durjan Singh and with a view to killing her they fired at his father, due to which he sustained injuries on his eyes and both hands. It was further stated that one Smt. Hariya, who was also bathing at the hand pump near the Panchayat Bhawan, also sustained firearm injury on her leg. It was further stated that Sariya and Bhaiya Deen used to visit the village as they were relatives of Dhanni. The motive behind the commission of crime was stated to be that Dhanni Rajpoot falsely implicated Durjan Singh in a case of kidnapping in the year 1995. It was further stated that about six months ago, Dhanni, Bhaiya Deen and Sariya had murdered his brother and his wife in village Roaro and in that case they were sent to jail and the father of the complainant Durjan Singh was also in jail in connection with a case of dacoity in village Gund. It was further stated that there had been some dispute in jail between Durjan Singh and Bhaiya Deen and Sariya, for which they threatened Durjan Singh. Durjan Singh came out of jail on bail about one and half months. On the basis of the written complaint, a first information report being Case Crime No. 166 of 2000 under Section 307/34 IPC was lodged.

4. In support of prosecution case, PW-1 Durjan Singh, PW-2 Smt. Hariya, PW-3 Mahipal Singh, PW-4 Bharatraja, PW-5 Dr. S.P. Singh, PW-6 Sub Inspector Surendra Singh, PW-7 Dr. Narendra Kumar, were produced and examined before the Court below.

5. The judgement of acquittal was passed by the Court below on the ground that the allegation is that three accused, one Bhaiyadeen Lodhi who were carrying a SBBL gun in his hand, Sariya (accused herein) who was carrying Addhi and one unidentified person who was also carrying Addhi gun came to his place and all the three fired at his father Durjan Singh who suffered injuries near his eyes and hands and one Smt. Hariya who was taking bath near handpump, also sustained injuries is not worth belief, inasmuch as it was specially alleged that Bhaiyadeen was carrying a SBBL gun and in the aforesaid case a separate ST No. 08 of 2001 was tried and decided on 18.7.2003 wherein all the witnesses of fact, namely, PW-1 Durjan Singh (injured), PW-2 Smt. Bharatraja (wife of Durjan Singh), PW-3 Mahipal (the informant) and PW-4 Smt. Hariya were declared hostile and Bhaiyadeen was acquitted, whereas in the present case there is an improvement in the statement and allegations have been levelled against Sariya (accused herein) and therefore, this is nothing but an afterthought and does not inspire confidence. The enmity was found to be there, therefore, it was found that it cannot be concluded as to whether accused Sariya only fired at the injured and his fire has caused the injury. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was 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 next submits that PW-1 Durjan Singh is the injured witness who suffered the injuries on his eyes, apart from on his hands and was rendered blind because of such injury and therefore, injuries of Durjan Singh as well as of Smt. Hariya were proved before the Court below, therefore, submission 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 in the first information report specific allegation is that Bhaiyadeen was carrying a SBBL gun and this was stated by PW-1 Durjan Singh (injured witness) that Sariya (accused herein) was carrying Addhi and two other persons were also carrying Addhi guns whereas PW-3 Mahipal had stated that accused Sariya was carrying a SBBL gun and other persons were carrying Addhi. We further find that the ground of acquittal in ST No. 08 of 2001 wherein the accused Bhaiyadeen was tried and all the witnesses of fact as noticed above turned hostile and Bhaiyadeen was acquitted. Now, in the present case, there appears to be some improvements in the allegations that in fact Sariya (accused herein) had fired on the injured witness and he had suffered injury due to his fire. In the present case also, all the witnesses have turned hostile and nothing fruitful came out in favour of the prosecution. We also find that as per the injury report, six injuries were suffered by Durjan Singh and three injuries were suffered by Smt. Hariya, however, Smt. Hariya had also stated that she has not seen as to who had fired. Third accused person was never identified. Coupled with this, there was enmity and the informant side was having enmity with the accused side and both the sides have grudge and have been implicated wherein dispute had taken place as per the allegations levelled against each other.

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 :- 4.8.2022

Abhishek