Allahabad High Court

State Of U.P. vs Munney And Others on 21 October, 2022

Bench: Kaushal Jayendra Thaker, Nalin Kumar Srivastava




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on : 21.09.2022 
 
                                              Judgment delivered on : 21.10.2022            
 

 
Case :- GOVERNMENT APPEAL No. - 2497 of 1987
 

 
Appellant :- State of U.P.
 
Respondent :- Munney And Others
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- N.L.Pandey
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per : Dr. Justice Kaushal Jayendra Thaker, J.)

1. This is an Appeal of year 1987 preferred by the State against the judgment and order dated 27.6.1987 passed by Assistant Sessions Judge, Ghaziabad in Sessions Trial No.166 of 1986, challenging the acquittal of the accused, who were facing trial for commission of offence under Section 307/34 of the Indian Penal Code.

2. The accused Munney was alleged to be armed with a pharsa, accused Sadakat was armed with a country made pistol and accused Tahir with a gun.

3. The prosecution story is based on the following facts namely, that on 20.02.1986 on broad daylight at about 10:00 A.M. the accused assaulted Ahsan Ali and snatched Rs.5000/- from him. The report was lodged and complainant was medically examined, as he was medically injured. X-ray reports were also obtained of his body.

4. On the charge-sheet being laid, the accused appeared and pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused were committed to the Court of Sessions. The learned Sessions Judge framed charge for commission of offence punishable under Section 307/34 of the Indian Penal Code (IPC).

5. The prosecution examined witnesses in support of its case and tried to prove that there were nine injuries on the person of Ahsan Ali. Dr. U.C. Gupta, who examined himself on oath and Dr. Pillay had examined the complainant on other occasion also.

6. After appraisal of evidence and hearing the arguments on behalf of the prosecution and the defence, the learned trial court acquitted the accused on the following grounds :

(i) that there was delay in lodging the report ;

(ii) there was enmity between the complainant and the accused;

(iii) Witnesses were interested witnesses;

(iv) The story of snatching away Rs.5000/- did not inspire confidence;

(v) Blood stained clothes of the victim were not produced at the trial.

7. The learned counsel for the State has made the following submissions that the acquittal of the accused is against the weight of evidence on record. The accused were the perpetrators of the crime and the evidence on record conclusively proves their involvement in this case. The order of acquittal is not justified in the eye of law as the prosecution had very well established the case against the accused. It is further submitted by learned A.G.A. that the learned Sessions Judge has misread the evidence. Learned A.G.A. has lastly submitted the the judgment impugned is erroneous and liable to be set aside.

8. On the other hand, learned counsel for the accused-respondents referring to the entire evidence as well as finding recorded by the trial court in the impugned judgment and order submitted that the impugned judgment and order is based on correct appreciation of fact and law and is well discussed and reasoned order.

9. Accused Sadakat during the pendency of Appeal is reported to have died and his death verification report / certificate was called for.

10. Munney son of Liyakat and Tahir son of Bunda have been served, but Sadakat died in the vehicle accident in the year 2013 and appeal qua him stands abated.

11. The prosecution produced the following documents :

Written Report

Ex.Ka.1.

Chik F.I.R.

Ex.Ka.8

Recovery Memo

Ex.Ka.2

Injury Report

Ex.Ka.3, 6 & 7

Site Plan

Ex.Ka.4

Charge-sheet

Ex.Ka.5

Nakal Rapat

Ex.Ka.9

Medical Report

Ex.ka.11

12. Before we consider the testimony and the judgment of the trial court, the contours for interfering in appeals where accused has been held to be non guilty would require to be discussed.

13. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR", (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

14. Further, in the case of "CHANDRAPPA Vs. STATE OF KARNATAKA", reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;

"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, 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 curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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."

15. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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 the case titled "STATE OF GOA Vs. SANJAY THAKRAN & ANR.", reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in appeals against acquital. In para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

17. Similar principle has been laid down by the Apex Court in cases titled "STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS.", 2007 A.I.R. S.C.W. 5553 and in "GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.

18. In the case of "LUNA RAM VS. BHUPAT SINGH AND ORS.", reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

19. In a recent decision of the Apex Court in the case titled "MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU", reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while hoosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]".

20. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of "STATE OF KARNATAKA VS. HEMAREDDY", AIR 1981, SC 1417, wherein it is held as under:

"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

21. The Apex Court in "SHIVASHARANAPPA & ORS. VS. STATE OF KARNATAKA", JT 2013 (7) SC 66 has held as under:

"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."

22. Further, in the case of "STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA", (2013) 14 SCC 153, the Apex Court has held as under:

"The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person."

23. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:

"10.It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.

.........................It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."

24. The Apex Court recently in Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SC 750, has held that the appellate court is reversing the trial court's order of acquittal, it should give proper weight and consideration to the presumption of innocence in favour of accused, and to the principle that such a presumption sands reinforced, reaffirmed and strengthened by the trial court and in Samsul Haque v. State of Assam, (2019) 18 SCC 161 held that judgment of acquittal, where two views are possible, should not be set aside, even if view formed by appellate court may be a more probable one, interference with acquittal can only be justified when it is based on a perverse view.

25. Recently also, the Apex Court while considering the acquittal appeal has laid down certain principles. The appellate court has to abide by the same. The principles are re-summerized in Rajesh Prasad vs. State of Bihar 2022 (3) SCC 471.

26. The evidences of the witnesses cumulatively go to show that the judgment of the court below is not that perverse. The evidences of all the witnesses have been considered by the court below and the judgment of the court below cannot be said to be such which requires interference by this Court. The witness Imtiyaz has in his ocular version stated that he has not seen who had fired. There was no other witness, though the incident had occurred in a broad day light. No independent witness of the area has been examined.

27. Learned Trial Judge in its reasoning has held as under.

"अन्वेषण कर्ता पी०डब्लू०-6 श्री राजेन्द्र प्रताप सिंह ने अपनी प्रति पृच्छा में यह कहा है कि घायल अहसान घटना के बाद सबसे पहले थाने पर गया था और थाने की जनरल डायरी मे घायल के सिर मे पट्टी बंधा होना अंकित है, परन्तु जनरल डायरी में यह अंकित नही है कि घायल ने किस डाक्टर से पट्टी बंधवाई थी। जनरल डायरी रिपोर्ट प्रदर्श क-9 मे भी रिपोर्ट लिखाने के समय अहसान के सिर में पट्टी बंधी होने का उल्लेख है परन्तु अभियोजन की ओर से इस बात का कोई स्पष्टीकरण नही दिया गया है कि अभियोगी ने घटना के बाद थाने जाने से पूर्व किस डाक्टर से पट्टी बंधवाई अर्थात इलाज करवाया। थाने जाने के समय अहसान के सिर पर पट्टी बंधी होने से यही निष्कर्ष निकलता है कि उसने घटना के बाद रिपोर्ट लिखाने से पूर्व किसी न किसी डाक्टर से सिर पर पट्टी बंधवाई थी परन्तु उक्त पट्टी बंधवाने के सम्बन्ध में अभियोजन की ओर से कोई साक्ष्य पेश नही किया है और न ही इस सम्बन्ध मे कोई स्पष्टीकरण ही दिया गया। उपरोक्त तथ्य से भी अभियोजन का केस अस्वाभाविक मनघडंन्त व सन्देहात्मक हो जाता है। इसके अलावा डाक्टर एस०एन०पाल रेडियोलोजिस्ट जिसने दिनाँक 12.03.86 को अभियोगी अहसान के सिर का एक्सरे कराया था ने भी अपनी प्रतिपृच्छा में यह कहा है कि उसने घायल के घाव नही देखें और वह नही बता सकता कि घाव किस अवस्था मे थे। डाक्टर एस एन पाल ने यह भी कहा है कि अगर घाव बनाकर छर्रे अन्दर रखकर एक्सरे कराया जाये तो छर्रे अथवा धातु की बनी छर्रो के आकार के बाहरी वस्तुओ की शैडे एक्सरे मे आयेंगी। अतः इस बात की प्रबल संभावना है कि अभियोगी ने अपने सिर में घाव बनाकर छर्रे रख दिये हो और इसी कारण एक्सरे में छर्रो की सैडो आयी हो। इस केस में सबसे महत्वपूर्ण बात यह है कि इस घटना से पूर्व अभियोगी एवं अभियुक्तगण में पार्टीबाजी व रंजिश चली आ रही है अभियोगी एक पार्टी का है तथा अभियुक्तगण उसके विरूद्ध पार्टी के है। अभियोगी के शरीर पर फरसे की कोई चोट नही है जब कि प्रदर्श क-1 के अनुसार उसके ऊपर फरसे से 3-4 वार किये गये अतः यह निसंदेह सिद्ध नही होता कि अहसान के शरीर पर जो चोटे आना बताया गया है उन्हे अभियुक्तगण ने ही अभियोजन द्वारा कहे गये ढंग समय व स्थान पर पहुचाया था। अभियुक्तगण की रिपोर्ट पर अभियोगी अहसान का पुनः मेडिकल परीक्षण होना तथा पुनः परीक्षण के समय पहले मैडिकल परीक्षण करने वाले डा० एच०सी० सक्सैना का इस सम्बन्ध में मुख्य चिकित्सा अधिकारी गाजियाबाद से मिलना भी अहसान के पहले मेडिकल परीक्षण पर सन्देह उत्पन्न करता है। अभियोजन की ओर से आसपास के किसी स्थानीय व स्वतन्त्र साक्षी को पेश करने से केस सन्देहजनक होता है। साक्षी नं० 2 इन्तयाज व साक्षी नं० 4 इस्तयाक दोनो ही क्रमशः अभियोगी अहसान के सम्बन्धी व साझीदार है और दोनो हितबद्ध साक्षी है क्योकि अभियोगी व अभियुक्तगण की घटना से पहले से रंजिश व मुकदमे बाजी है अतः ऐसी स्थिति मे अभियोगी व साक्षी इन्तयाज व इस्तयाक के ब्यानो पर स्वतन्त्र व स्थानीय साक्षियो के अभाव में किसी भी प्रकार से विश्वास नही किया जा सकता।

अतः उपरोक्त विचार विमर्श व पत्रावली पर उपलब्ध साक्ष्य के आधार पर मै इस निष्कर्ष पर पहुचता हूँ कि अभियोजन अपने केस की कहानी को तथा अभियुक्तगण के विरूद्ध लगाये गये आरोपो को निसन्देह सिद्ध करने में पूर्णतयाः असफल रहा है और अभियोजन का पूरा मामला अस्वाभाविक सन्देहात्मक व मनघडन्त है तथा अभियुक्तगण जो आरोप उन पर लगाये गये है, उनसे दोष मुक्त होने योग्य है।

28. Thus, in light of all these facts and the fact that the learned Judge in its reasoning has held as above, we are unable to accept the submissions of the State counsel for the above reasons and the judgments of the Apex Court which lay down the criteria for consideration of appeals against acquittal. While going through the judgment it is very clear that the court below has given a categorical finding that the evidence is so scanty that the accused cannot punished and or convicted for the offences for which they are charged. The factual scenario in the present case will not permit us to take a different view than that taken by the court below. In that view of the matter we are unable to satisfy ourselves. Thus we concur with the findings of the court below.

29. Hence, in this view of the matter and on the contours of the judgment of the Apex Court, we concur with the learned Sessions Judge.

30. The appeal sans merits and is dismissed. The record and proceedings be sent back to the Court below.

Order Date :- 21.10.2022.