State Of U.P. vs Shiv Baran And Others
2022 Latest Caselaw 21916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
Court No. - 42
 
Case :- GOVERNMENT APPEAL No. - 2376 of 1986
 
Appellant :- State of U.P.
 
Respondent :- Shiv Baran And Others
 
Counsel for Appellant :- A.G.A.,Anil Kumar Pandey
 
Counsel for Respondent :- P.K. Pandey,R.K. Pandey
 

 

 
Hon'ble Vivek Kumar Birla, J.

Hon'ble Rahul Chaturvedi, J.

1. Heard Shri Kailash Prakash Pathak, learned AGA appearing for the appellant and Sri Ram Sajiwan Mishra, learned counsel for the accused respondents and perused the record.

2. Vide order dated 5.9.2022 appeal in respect of accused-respondent no. 2-Gorey Singh stood abated as he died about 24 years ago. So far as accused respondents no. 1, 3 and 4, we proceeded to hear the appeal on merits.

3. Present government appeal has been preferred against the judgement and order dated 7.6.1986 passed by the Special Judge (E.C. Act), Bana in Sessions Trial No. 241 of 1985 (State vs. Shiv Baran Singh and others) arising out of Case Crime No. 09 of 1985, under Sections 302 and 307 read with Section 34 IPC P.S. Kotwali, District Banda, whereby accused persons were acquitted from the charges levelled against them.

4. Prosecution story, in brief, is a written report (Ex. Ka 1) was lodged by complainant Virendra Singh (PW-1) at 21:15 hours on 2.1.1985 in P.S. Kotwali with the allegations that he along with his brother Jawahar Singh (deceased) and brother-in-law Jai Karan Singh were returning from city of Banda on a tractor to village Luktara on 2.1.1985. When they reached near the abadi of Luktara, deceased Jawahar Singh and his brother-in-law Jai Karan Singh stepped down from the tractor for going direct to the house of the deceased. All the four accused armed with guns suddenly came at the place of occurrence and on being exhorted by the rest of his companions to kill Jawahar Singh, accused Shiv Baran Singh opened fire on him hitting Jawahar Singh on his back. He fell truncated on the ground. Complainant and Jail Karan Singh raised alarm and hide themselves behind the tractor. All the four accused opened a few rounds of fire on them with the intention of committing their murder. Rajendra Ssingh, the brother of the complainant, rushed to the spot from his neighbouring field. The accused sped off towards east. It is alleged that accused Gorey Singh subsists under inimical relationship with the complainant and members of his family. It is for this reason that he along with his companions committed murder of Jawahar Singh and launched murderous assault on them. On the basis of written report, an FIR was lodged against the accused persons.

5. The Investigating Officer was nominated and he conducted investigation. Statements of prosecution witnesses were also recorded and thereafter a charge-sheet was submitted against the accused persons. The case was committed to the Court of Sessions and charges were framed against the accused who pleaded their innocence and not guilty.

6. In support of prosecution case, PW-1 Virendra Singh (informant), PW-2 Hori Lal Yadav (Head Moharir), PW-3 Dr. Ravi Mathur, PW-4 Jail Karan Singh (brother-in-law of the deceased), PW-5 Jata Shankar Singh (I.O.), PW-6 Brij Kishore (Head Constable) were produced and examined before the Court below. One Satish Chand was also examined as DW-1.

7. The judgement of acquittal was passed on the ground that the presence of the Virendra Singh (PW-1) and Jai Karan Singh (PW-2) was highly doubtful. It was found that the reason and purpose of deceased Jawahar Singh going to Banda was not proved by the PW-1 and PW-4. The Court below further found that the first information report lodged by the complainant Virendra Singh was ante time and it was drafted in consultation with Police, Rampal Singh (Advocate), Chandrabhan Singh (Ex. MLA) and Rohan Singh (Pradhan). The distance of Police Station mentioned in the FIR was 21 km but in the inquest memo it was mentioned as 22 KM. It was found that the deceased Jawahar Singh was a man of bad character. It was further found that the presence of tractor at the spot was doubtful. It was also found that no injury was received by the witnesses. On these grounds, 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.

8. Challenging the impugned judgment, Sri Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that it was a broad day light incident and one person lost his life. It is next submitted that the medical evidence fully supported the prosecution case. It is submitted that after incident PW-1 and PW-4 did not go to Banda to lodge the report as they apprehended danger from the accused persons. It is submitted that non-sending of blood stained earth to the Chemical Examiner by the Investigating Officer would not affect the prosecution case. It is submitted that presence of witnesses are not doubtful and FIR was lodged promptly. It is submitted that there was enmity between the parties which was the reason behind such crime. It is submitted that all the necessary ingredients to commit the crime and the place of occurrence was also proved by the prosecution. It is further submitted that minor contradictions in the statement of witnesses could not be a ground to discord the prosecution version. It is submitted that the finding recorded by the trial Court that the FIR is ante-time is not cogent. 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.

9. On the other hand, Sri Ram Sajiwan Mishra, learned counsel for the accused respondents submits that there is no good ground to reverse the judgement.

10. We have considered the submissions and have perused the record.

11. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

12. 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"

13. 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 against an order of acquittal passed by a Trial Court.

14. 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.

15. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

16. On perusal of record, we find that the allegation as per prosecution case is that when Jawahar Singh (deceased) and his brother-in-law Jai Karan Singh got down from the tractor, accused persons armed with guns came to the spot and on the exhortation Shiv Baran, Gorey Singh, Sultan Singh and Sura Singh fired on Jawahar Singh on which he fell down on the ground and informant Virendra Singh and Jai Karan Singh moved behind the tractor but all the four accused persons fired several rounds of fire but they were not harmed. When Virendra came on the spot, all the accused persons ran towards canals. We find that there are two versions on record about hiding at the time of incident. One version is that the informant Virendra Singh (real brother of the deceased) and Jai Karan Singh (brother-in-law of the deceased) hide behind the tractor, however, it is strange to note that there were no bullet marks on the tractor as a matter of fact there was no such allegation. No bullets were found from the spot. Another version that has come to prove the presence of the witnesses on the spot is that when the incident had taken place, they hide themselves behind the wall of canal. We find that the trial Court has rightly observed that how it is possible to hide behind the wall of canal when pulia is constructed across canal. It is also strange that it was claimed that the tractor was driven by the deceased and was found standing at home whereas the tyre marks to prove the movement of the tractor in the vicinity of canal could not be found. The stand taken by PW-1 and PW-4 who were directly related with the deceased, as the only deceased knew driving and after his death no one was there to drive the tractor who claimed that after the incident the tractor was driven to home and thereafter they had gone to the police station on foot for the purpose of lodging of the first information report does not inspire confidence. As a natural course, anybody who knows the driving would have used the tractor to straightaway go to the police station. It is also strange that the real brother would leave the place and return to the place after about 15 hours to the spot. Moreover, it was further alleged that it was raining during night and therefore, the tractor marks could not be found. However, at that time the stand is being taken that the police personnel were on guard of dead body throughout night. It is not understandable as to whether in the night of first week of January how they have stayed there in open while it was raining. Presence of PW-1 and PW-4 on the spot is highly doubtful as held by the trial Court and therefore, the eyewitness count does not inspire confidence.

17. In such view of the matter, we, therefore, find that the court below has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.

18. Accordingly, the present government appeal is dismissed.

Order Date :- 20.12.2022

Abhishek