Allahabad High Court
State Of U.P. vs Lalman S/O Nandram And 02 Others on 12 September, 2022
Bench: Vivek Kumar Birla, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- GOVERNMENT APPEAL No. - 564 of 2022
Appellant :- State of U.P.
Respondent :- Lalman S/O Nandram And 02 Others
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. Kailash Prakash Pathak, 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 7.5.2022 passed by the Additional District & Sessions Judge, Court No.3, Pilibhit in Session Trial No. 26 of 2013 (State vs. Lalman and others), arising out of Case Crime No. 422 of 2012, under Section 302/34, 201 IPC, P.S. Barkheda, District Pilibhit, whereby the accused-respondents have been acquitted from the charges under Sections 302/34, 201 IPC.
3. Prosecution story, in nutshell is that the complainant's father Damodar Swaroop, who was posted in Sugarcane Department, got retired. On 29.6.2012 his father went to Bisalpur, but did not return back in the night. His father used to drink liquor. On 30.6.2022 the dead body of his father was found in the sugarcane field situated in Village Simariya Godam. on the basis of this information, the first information report was lodged against unknown person.
4. In support of prosecution case, PW-1 Yashpal (complainant), PW-2 Shiv Kumar, PW-3 Kishan Kumar, P.W.-4 Bhagwandas, P.W.-5 Inspector Harendra Pal Singh, P.W.-6 H.M. Jai Prakash Shukla and PW-7 Head Constable Ajay Tiwari were produced and examined before the Court below.
5. The judgement of acquittal was passed by the Court below on the ground that there is absolutely nothing on record to indicate the guilt of the accused persons. The court found that this is a case of circumstantial evidence where an abandoned dead body was found and an information regarding recovery of dead body was reported and request for conducting post-mortem was made. The court found that the motive in the present case is absolutely missing and all three accused persons have been implicated in the offence only on the basis alleged extra judicial confession made before P.W.-3 Kishan Kumar after about one month of the incident, who stated in his testimony that while he was sitting in a shop of one Hariom, the accused persons namely, Lalman, Chhatrapal and Prem Narain came there and requested him to save them as they have committed murder of Damodar Swaroop. However, in this extra judicial confession the motive for commission of offence was not disclosed by the accused persons. It is needless to say that the extra judicial confession is a feeble piece of evidence and no conviction solely on the basis of such extra ordinary confession can be imposed on the accused persons.
6. Challenging the impugned judgment, Mr. Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused person herein. He next submits that it is a case where judgement is perverse in nature because as per postmortem report there is evidence of alleged strangulation and the accused persons have confessed their offence as per testimony of P.W.-3 Kishan Kumar. It is also submitted by learned A.G.A. that one Angochha and one plastic bottle containing acid, which have been used in commission of offence were recovered, 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.
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.
9. 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."
10. 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.
11. 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.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record, we find that in the present case admittedly the deceased was habitual drinker and after his dead body was found a first information report was lodged regarding recovery of said dead body and request for postmortem report was made. From the perusal of postmortem report we find that it is not proving in definite terms that it is a of strangulation. All three accused persons have been implicated solely on the basis of alleged extra judicial confession made by them before P.W.-3 after about one month of the incident. The alleged recovery of plastic bottle containing acid also could not be connected with the offence. It is needless to say that merely on the basis of alleged extra judicial confession the accused persons cannot be convicted in absence of any other cogent and tangible evidence. In the present case, the chain of events is not so complete so as to prove the guilt of the accused persons and none else to connect with the commission of offence. 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.
14. 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 :- 12.9.2022
M. Kumar
