Devendra Singh vs State Of U.P. And 4 Others
2022 Latest Caselaw 21334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1395 of 2022
 

 
Appellant :- Devendra Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Vijay Singh Sengar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Rahul Chaturvedi,J.

1. Heard Sri Vijay Singh Sengar, learned counsel for the appellant and perused the record.

2. This is an appeal under Section 372 Cr.P.C. invoking our power to upset the judgment and order passed by the learned Sessions Judge, Jalaun at Orai dated 16.09.2022 while deciding the S.T. No.217 of 2008, (State vs. Bablu @ Brijendra Singh and Others), arising out of Case Crime No.253 of 2006, under Section 307/34 and 504 IPC, Police Station Dakor, District Jalaun.

3. We have perused the judgment and order dated 16.09.2022 by which the learned Trial Judge have acquitted Raju @ Ajay Singh, Raghvendra @ Jhadule and Rampal Singh from the allegations and have sentenced Bablu alias Brijendra Singh under Section 324 IPC and awarded two years R.I. and a fine of Rs.2000/- and in case of default to pay the fine, six months simple fine.

4. Aggrieved by the aforesaid judgment the informant Devendra Singh has filed the instant appeal assailing the judgement and order dated 16.09.2022 on the ground that the judgment and order passed by the trial court is against the weight of evidence on record and accordingly it is unjust, improper and arbitrary; the learned Trial Judge did not bother the testimony of nephew of the appellant and his own statement have fully supported the prosecution case but ignoring the same the impugned order was passed. An additional ground has been taken that in the entire prosecution case the offence under Section 307 and 504 IPC is fully made out and the impugned judgment is liable to be set aside. Despite of the fact that prosecution witnesses PW-1 and PW-2 (witnesses of fact) have supported the prosecution case but learned Trial Judge has erred in law in passing the acquittal order against rest of the accused persons and changing the rigours of Section 307 IPC and converting it into conviction under Section 324 IPC. Learned counsel for the appellant further submitted that Dr. Awaneesh Kumar has fully supported the injury report but learned Trial Judge ignored the same and has given a finding putting his own words.

5. Before coming into merits of the case, it is desirable to give birds eye view to the prosecution version which reads as under:

6. A written Tehrir was given by the informant-Devendra Singh s/o Mohan Singh, resident of village Timaro, Police Station Dacor, District Jalaun to the effect that around 2:00 pm in a day of 18.10.2006 his nephew Ajay Pratap Singh was irrigating his field, at the same time the named accused persons, namely, Bablu @ Brijendra Singh, Raghvendra Singh @ Jhadule, Raju @ Ajay Singh and Rampal Singh came alongwith his gun and lathi-danda and on a very small and insignificant issue there was a heated altercation between them. Infuriated by this, Brijendra @ Bablu armed with his 12 bore licensee gun fired upon them causing pellet injuries to both legs of his nephew. This incident was witnessed by Guddu Sengar @ Surendra Pal Singh and Devi Dayal and anyhow saved the life of the injured.

7. The First information report was got registered on 18.10.2006 at 16:00 hours at Police Station Dacor on the same day and injured was sent for medical examination. After registering the first information report police started investigation in the matter and prepared site plan and recorded the statement of witnesses. After completing the formalities the name of Rampal Singh was found false and accordingly chargesheet was submitted under Section 307, 504 IPC only against Bablu @ Brijendra Singh, Raju @ Ajay Singh, Raghvendra @ Jhadule. Learned Magistrate has taken cognizance of offence and summons the accused to face trial.

8. Being a cognizable offence, the matter was committed to the court of sessions vide order dated 01.12.2008 and was numbered as Sessions Trial No.217 of 2008. Learned Trial Judge has framing charges under Section 307/34 and 504 IPC against the accused persons and explained the charges but all the accused persons have denied from the charges and requested to be tried.

9. In order to substantiate the allegation, prosecution has produced following witnesses to establish the prosecution case:-

PW-1-Devendra Singh

PW-2-Ajay Pratap

PW-3- Dr. Awaneesh Kumar

PW-4-Retired Constable Balbir Singh

PW-5 Inspector J.P. Shahi

PW-6-Satish Kumar Singh

10. After recording the statement, in the mid of trial a proceeding under Section 319 Cr.P.C. has already been initiated to summon the named accused person Rampal which was eventually allowed on 08.03.2017 by the learned Trial Judge and Rampal too was summoned and explained the charges upon him under Section 307 and 504 IPC.

11. We have gone through the testimonies of prosecution witnesses namely PW-1-Devendra Singh and PW-2 Ajay Pratap. It is a specific case by the prosecution that all the named accused person came on the spot alongwith gun and lathi-danda and insisted Ajay Pratap to stop irrigating and when he denied then Bablu @ Brijendra Singh has given a fire upon him with the intention to kill him by his weapon which lukcly given injures to him on both of this legs. Rampal Singh too has given a fire but his fire completely missed. In addition to this, accused persons who were armed with lathi-danda have brutely beaten by lathi-danda. The Accused persons have given 2-4 fires upon them. PW-2- Ajay Pratap has almost reiterated the same version but ha specifically mentioned that it is Bablu @ Brijendra Singh who has given the fire upon him causing four injures on his legs and Rampal Singh has given a fire upon first informant but that was missed. It has been argued by the defence that the injured has sustained pellet injuries only and no other person has sustained any injures over the person.

12. PW-3-Dr.Awaneesh Kumar has examined the injured and has mentioned that injured has sustained six pellet injures over his body (non vital part) admeasuring .2x.2 cm, which are are all on the non vital part of the body. There is no supplementary report on record thus doctor is not in a position to spell out the nature as to whether there are grievous in nature or simple injures. It is further contended that these injures might have caused from the distance 15-20 far and the possibility of false implication cannot be ruled out if the injured get self inflicted.

13. The learned Trial Judge after collecting all the testimonies and thrashing it critically have opined that since there is no injury of lathi and danda as alleged in the first information report and therefore, there is no role of the rest of the injured persons that they have assaulted by their weapons and except above mentioned injuries the injured have sustained no other injuries over their person. There is a categorical finding that Rampal Singh, co-accused has not fired a single fire as alleged in the first information report. The injured in his testimony submits that on the exhortation made by Rampal Singh, Bablu @ Brijendra Singh has fired upon him.

14. The Learned Trial Judge has recorded a finding that the injuries sustained by the injured is superficial in nature and would not come within the preview of Section 307 IPC as it is not on a any vital part of the body of the injured and after assessing the entirety of circumstances and the weapons used the learned Trial Judge has rightly converted the conviction of the applicant Bablu @ Brijendra Singh under Section 307/34 IPC to Section 324 IPC and so far as rest of the accused persons is concerned, they have completely exonerated from the charges.

15. After hearing the rival submissions, the Court has got occasion to lay its hands on the latest judgements relating to scope and ambit of Sections 378 and 386 of the Code of Criminal Procedure, which speak about appeal against acquittal.

16. In the case of Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471, while thrashing the earlier judgements, the Hon'ble Apex Court has held as under :

"24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:

"6. ....In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

25. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

"7. ..... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa vs. State of Karnataka (2007) 4 SCC 415)

:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

17. Similarly in Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, the Hon'ble Supreme Court has been pleased to discuss the scope of the High Court to interfere in an appeal against an order of acquittal passed by a Trial Court, and in paragraph-10 it has been held that :

"10. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that:

"13......The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt."

21. In the same chain the Hon'ble Apex Court in Jayamma and another vs. State of Karnataka, (2021) 6 SCC 213, has considered the law on the issue involved and observed thus:

"23. The other important reason to depart from the High Court's view re. conviction of the appellants is that the power of scrutiny exercisable by the High Court under Section 378, CrPC 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 re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."

18. After going through the entire material on record categorically analysing the impugned judgment, we are of the considered opinion that the judgment and order does not deserve any interference from our side under Section 372 Cr.P.C. or called for any reversal of the judgment. The judgment impugned is based on sound reasoning and does not warrant any interference.

19. The appeal lacks merit and is accordingly dismissed.

Order Date :- 16.12.2022

Nitendra