State Of Up vs Saleem S/O Badau And 20 Others
2022 Latest Caselaw 6523 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(E-Court)
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 355 of 2022
 

 
Appellant :- State of U.P.
 
Respondent :- Saleem S/O Badau And 20 Others
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
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. Vide order dated 20.6.2022 notices were issued to the accused persons. Sri A.N. Pandey, learned counsel is present on behalf of the accused persons. He may file his appearance in the office.

3. Present government appeal has been preferred against the judgement and order dated 6.4.2022 passed by the Additional District & Sessions Judge, Court No. 12, Aligarh in Sessions Trials No. 359, 360, 361, 362 and 363 of 2013, arising out of Case Crimes No. 659, 661, 662, 664 and 665 of 2011 under Sections, 147, 148, 149, 307, 160 IPC and 4/25 Arms Act, PS Atrauli, District Aligarh.

4. Prosecution story, in brief, is that a first information was lodged by Sub Inspector Upendra Singh, PS. Atrauli, District Aligarh on the ground that when he got information that a fight took place in Mohalla Nichan, he along with some police personnel reached the spot and saw that 18-20 persons laced with weapons (i.e. country made pistol, knife and cuddle etc.) were fighting in front the house of Ikram Hazi and nuisance was being created and after some time firing took place between the parties. Thereafter, in the night at 9 pm, about 11 miscreants, namely, Saleem, Allauddin, Ayub, Aslam, Mohsin, Safiq, Furkaan, Arif, Imran, Sanu and Sakeel were arrested and from their possession, country made pistol, knife, live cartridges etc. were recovered and some miscreants ran away from the spot. On the basis of alleged incident, a first information was lodged under Sections 147, 148, 149, 160, 307 IPC and 4/25 Arms Act, P.S. Atrauli, District Aligarh.

5. In support of prosecution case, PW-1 Head Constable Virendra Singh, PW-2 is Inspector Upendra Singh, PW-3 Constable Charan Singh and PW-4 Suresh Kumar, Pairokar were produced and examined before the Court below.

6. The judgement of acquittal was passed on the ground that although it has been alleged that the accused persons were fighting on a public street by forming unlawful assembly and had used weapons, however, it was found by the trial Court that none of the witnesses is a public witness whereas allegedly the fight had taken place on public place. PW-1 is Head Constable Virendra Singh, PW-2 is Inspector Upendra Singh, PW-3 Constable Charan Singh and PW-4 Suresh Kumar, Pairokar were examined and even they could not prove the prosecution version as on one hand PW-1 had stated that he had seen the incident, however, he had prepared the recovery memo in the light of torch and therefore, it was not known as to how he had seen the accused persons. Initially, he had stated that he did not recognize any person, however, subsequently, he had stated that the police personnel recognized the accused persons very well. Source of light has not been disclosed even the availability of torch with him was also not proved. It is being alleged that country made pistol and knives were used in the incident, however, no one has suffered any injury whereas allegation is that about 22 persons were involved in the incident. No live and empty cartridges were recovered from the spot. PW-2 Sub Inspector Upendra Singh in his statement had recorded that he had not written the length and width of the recovered knife in the recovery memo and therefore, it is not known whether they were of prohibited category or not. He had also stated in the cross-examination that he did not recognize any of accused persons and therefore, it was not proved that how the accused persons have been identified and allegation is that about 11 accused persons ran away from the spot. It was also alleged that two persons have suffered injury, however, their names have not been disclosed anywhere and even in the statement or cross-examination names could not be disclosed. It was further found from the map Ext. 4 that incident had taken place at Tiraha surrounded by houses but no public witness was produced. 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.

7. 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 incident had taken place on public place and testimonies of police personnel are sufficient to prove the incident as in such matters no public persons come forward to give evidence. 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.

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

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

10. 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"

11. 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."

12. 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."

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

14. On perusal of record, we find that except the alleged recovery of weapons shown allegedly from accused persons there is nothing whatsoever on record. Such recovery could not be connected with the incident. In view of allegation that the incident had taken place on Tiraha surrounded by several houses, absence of any public witness is noticeable. Moreover, PW-1 to 4 who have police personnel, alleged that when they reached the spot, they were fired upon, however, none of persons had received any injury and there is no evidence to indicate the same. 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.

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 :- 12.7.2022

Abhishek