State Of U.P. vs Hakim S/O Murlidhar And Another
2022 Latest Caselaw 6434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(E-Court)
 
Court No. - 42
 
Case :- GOVERNMENT APPEAL No. - 247 of 2022
 
Appellant :- State of U.P.
 
Respondent :- Hakim S/O Murlidhar And Another
 
Counsel for Appellant :- G.A.
 

 

 
Hon'ble Vivek Kumar Birla, J.

Hon'ble Vikas Budhwar, J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Ratan Singh, 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 29.1.2022 passed by the Additional Sessions Judge, Court No. 10, Mathura in Sessions Trial No. 565 of 2014 (State vs. Hakim and another), arising out of Case Crime No. 179 of 2013, under Sections 307 and 120B IPC, P.S. Shergarh, District Mathura.

3. Prosecution story, in brief, is that the complainant Ramesh Chandra gave a written report on 24.8.2013 at P.S. Sheragarh, Ditrict Mathura stating therein that on 24.8.2013 when his son Yogesh was home, Arjun son of Hakim called his son Yogesh and asked him for going to answer nature's call. Even after some time when he did not return, search was undertaken by family members. In between, Om Prakash and his son Devendra gathered knowledge that someone was weeping in an old well situated at a bagicha. Thereafter, the complainant/informant and other persons took out the injured from the well and on being asked he told that Arjun tide the rope in his throat and threw him in the well and ran away and he sustained injury on the head and body. Thereafter he was taken to Maurya Hospital, Mathura. On the basis of written report, a first information report was lodged against the accused Arjun being Case Crime No. 179 of 2013 under Section 307 IPC against the accused persons.

4. In support of prosecution case, PW-1 Ramesh Chandra (informant), PW-2 Yogesh (injured), PW-3 Devendra (first eye witness of the incident), PW-4 Om Prakash (father of the first eye witness), PW-5 Dr. M. Bansal, PW-6 Head Constable Meharbaan Singh, PW-7 Station Officer Jai Prakash Pal and PW-8 Dr. A.K. Paliwal, were produced and examined before the Court below.

5. The judgement of acquittal was passed on the ground that accused respondent no. 1 Hakim s/o Murlidhar and accused respondent no. 2 Laxman s/o Hakim Singh were not named in the first information report and there is no evidence against them and even the victim (injured) has not named the accused Hakim and Laxman and the main allegation is against the accused Arjun whose trial was remitted to the Juvenile Board in Case No. 120 of 2013 (State vs. Arjun) as he was minor at the time of incident. It was found by the trial Court that in the first information report dated 24.8.2013 accused Hakim and accused Laxman herein were not named and in the application dated 29.8.2013 for the first time allegations were levelled against them. Initially it was stated that the victim (injured) was treated in Maurya Hospital and subsequently the stand was taken that he was taken to Government Hospital, District Mathura. PW-2 Yogesh (injured) had also levelled allegation against the accused Arjun only and he had stated that he was attacked by Arjun with knife, however, the same was not mentioned in the first information report and injury report also does not support his version. On this background, the judgement of acquittal was passed by the trial Court.

6. Challenging the impugned judgment, Sri Ratan Singh, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that the injury report supports the allegations made by the injured witness and the injured witness in his statement has specifically named the accused persons by saying that when Arjun had taken him to the field, Hakim and Laxman were present there. 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. 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 in the following words:

"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."

9. 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. For ready reference, paragraphs 10, 11 and 12 are quoted as under:

"10. In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-

"12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).

13. In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:

"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."

14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).

15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:

"(1) An appellate court has full power to review, re-appreciate 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 emphasise 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."

16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:

i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

ii) The High Court's conclusions are contrary to evidence and documents on record;

iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

v) This Court must always give proper weight and consideration to the findings of the High Court;

vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.

A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

11. Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.

12. The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."

10. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 2 SCC 471.

11. On perusal of record, we find that initially in the first information report the accused respondents herein were not named and no role whatsoever was assigned to them. Even in the statement of PW-2 Yogesh (injured), he had only made a statement that the accused Arjun had taken him away and the only allegation against the accused respondents herein is that he has only seen the accused respondents present in the field. There is no allegation against them in the commission of offence. The statement of injured witness Yogesh is also not supported by any other evidence that the accused respondents herein were involved in the commission of offence. It was also found that evidence relating to commission of offence like blood-stained clothes, angochha, knife, chappal, blood-stained soil etc., which were involved in/used for commission of offence, were not recovered and motive of commission of offence i.e. witchcraft is also not present. 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.

12. 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.

2. However, it is made clear that the dismissal of this appeal shall have no effect on the trial pending, if any, before the Juvenile Board against the accused Arjun.

Order Date :- 11.7.2022

Abhishek