Allahabad High Court
State Of U.P. vs Om Prakash S/O Jodhi on 31 October, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 680 of 2022
Appellant :- State of U.P.
Respondent :- Om Prakash S/O Jodhi
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rahul Chaturvedi,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Mr. 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 18.7.2022 passed by the Additional Sessions Judge, Budaun in Session Trial No. 241 of 2010 (State vs. Om Prakash) arising out of Case Crime No. 563 of 2009, under Section 302/34 IPC IPC, P.S. Kadar Chowk, District Budaun.
3. Prosecution story, in nutshell is that the complainant Veer s/o Rajpal submitted a tehrrir on 21.8.2009 at Police Station Kadar Chowk alleging therein that his father Rajpal aged about 62 years used to live in a hut situated in the orchard of guava but due to rain, he lived in tube well room of one Farukh. The complainant was not living in the village. On 21.8.2009 he received information about the murder of his father whereon he reached to the tube well and found the dead body of his father lying below pakad tree and the villagers were gathered there. The complainant alleged that his father was killed by his uncle Om Prakash and his son Deshraj. On the basis of aforesaid information, a first information report was lodged against Om Prakash and Deshraj.
4. 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. The case was committed to the Court of Sessions and charges were framed against the accused who pleaded his innocence and not guilty.
5. In support of prosecution case, PW-1 Veerpal (complainant), PW-2 Brahmanand, PW-3 Constable Durgesh Kumar, PW-4 Constable Clerk 251 Satish Chandra, PW-5 Dr. Viesh Kumar, PW-6 S.O. Dhruv Kumar, PW-7 Farukh Shah and PW-8 Pramod Kumar Singh (Advocate) were produced and examined before the Court below.
6. The judgement of acquittal was passed by the Court below on the ground that it is a case of circumstantial and no evidence whatsoever connecting the accused persons with the offence alleged and chain of circumstantial evidence is not complete so as to hold that the accused is guilty of having such offence. It was found by the trial Court that there was no eyewitness of the same and PW-1 and PW-2 who are sons of the deceased have only seen the dead body and reported the incident merely on being informed that they have found the dead body. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.
7. Challenging the impugned judgment, Mr. Ratan Singh, learned AGA submits that there was cogent evidence to convict the accused herein, therefore, submission 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 an order of acquittal passed by a Trial Court.
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.
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 no fault in the findings so recorded by the trial Court. There is no eyewitness account whatsoever. PW-1 and PW-2 are not the eyewitness and no one has seen the incident. It is settled law that the chain of circumstances must be so complete so as to hold that the accused person and no other person has committed the offence. We find that the chain of evidence is not complete in the present case and therefore, the trial Court has rightly passed the judgement of acquittal relying upon the judgement of Hon'ble Apex Court in the case of Sharadvridchand Sharda vs. State of Maharastra, AIR 1984 SC page 1622. We further found that although motive has been attributed for committing such offence, however, it is also the settled law that in case of circumstantial evidence, evidence assumes importance but in the present case the motive about the execution of Will deed and theft of opium could not be proved by cogent evidence.
15. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
16. 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 :- 31.10.2022
Abhishek
