State Of U.P. vs Samiullah Khan And Ors.
2023 Latest Caselaw 282 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 1000336 of 2010
 
Appellant :- State of U.P.
 
Respondent :- Samiullah Khan And Ors.
 
Counsel for Appellant :- Govt. Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

(Order on C.M. Application No. 122342 of 2010)

Heard Shri Rajesh Kumar, learned A.G.A. for the State and perused the record.

Vide order dated 03.12.2010 the notices were issued to the respondents-accused persons with regard to the instant application moved on behalf of the State for condonation of delay, the same is reported to have been served by the Chief Judicial Magistrate, Lakhimpur Kheri vide his communication dated 25.04.2011. However, nobody had appeared on behalf of the respondents.

The office has reported a delay of 05 days in preferring the instant application. Thus, keeping in view the averments made in the affidavit enclosed with the application moved under Section 5 of the Indian Limitation Act, the application for condonation of delay is allowed and the delay of five days occurred in preferring the instant application is, hereby, condoned.

(Order on Appeal)

Heard Shri Rajesh Kumar, learned A.G.A. for the State and perused the record.

By moving instant application under Section 378 (3) of the Cr.P.C., the State has challenged the impugned judgment and order of the trial court dated 17.08.2010 passed by the Additional Sessions Judge/F.T.C., Court No.4, Lakhimpur Kheri in Sessions Trial No. 31 of 2000, arising out of Case Crime No. 269 of 1997 (State vs. Samiullah Khan and 10 others), under Sections 147, 148, 323, 149, 504, 506 (2) I.P.C. and Section 3(1)(10) of the S.C./S.T. Act, Police Station Palia, District Lakhimpur Kheri, whereby all the accused persons have been acquitted of all the charges framed against them.

Brief facts necessary for the disposal of the instant case appears to be that the first information report of the instant case was lodged by the informant Banwari on 21.11.1997 at Police Station Palia at 16:18 hours stating therein that on the same day at about 2:00 pm. that he was placing 'chappar' on his land the accused persons/respondents arrived therein carrying 'lathi, danda and sariya' in their hands and asked the informant and his family members as to why they are placing 'chappar' on this land, as the land belongs to them and started assaulting informant and his family members with 'lathi, danda and sariya (iron rod)' and also committed mischief with regard to the 'chappar' which was being placed on the land. On an alarm raised by the informant and his family members Suraj Bali, Ratnu and Chotey Lal and other persons of the village assembled at the scene of the crime and rescued them otherwise the informant and his family members might have been done to death by the accused persons. It is also stated in the first information report that the informant and his family members had sustained injuries in the incident and their pet animals have also been assaulted.

On the basis of this written information an F.I.R. under Sections 147, 148, 323, 504, 506 I.P.C. and Section 3(1)(10) of the S.C./S.T. Act was registered at Police Station Palia, District Kheri.

On 21.11.1997 injured persons namely Banwari Lal, Leelavati, Kishori Lal, Ramesh, Premvati, Indrapal, Bahadur, Smt. Ramjati and Kailash were medically examined and injured Banwari is shown to have sustained three visible injuries of the nature of contusions with complaint of pain in chest. Injured Leelavati is shown to have sustained three contusions on different parts of her body. Injured Kishori Lal had sustained four injuries of the nature of contusions and three injuries of the nature of abrasions on different parts of his body.Injured Ramesh is shown to have sustained one contusion on his back and injured Premvati three contusions on different parts of her body while injured Indrapal had sustained two contusions on different parts of his body. Injured Bahadur had sustained four contusions on different parts of his body and injured Smt. Ramjati sustained one abrasion above her right eye and injured Kailash is shown to have sustained four contusions on different parts of his body. Both injuries were stated to have been caused by some hard and blunt object and were simple in nature. The injury no.1 and 2 of injured Banwari Lal were also kept under observation and he was also advised X-ray.

The investigating officer after investigation of the case submitted the charge sheet against all the accused persons under Sections 147, 148, 323, 504, 506, 427 I.P.C. and Section 3(1)(10) of the S.C./S.T. Act.

The trial court framed charges against all the accused persons/respondents under Sections 147, 148, 323, 504, 506, 427 I.P.C. and Section 3(1)(10) of the S.C./S.T. Act to which the accused persons denied the charges and claimed trial.

The prosecution in order to prove its case before the trial court presented P.W.-1/Banwari, P.W.-2/Premvati, P.W.-3/Dr. Anil Kumar Agarwal, P.W.-4/Smt. Leelavati, P.W.-5/Kailash.

Apart from the statement of the above-mentioned witnesses the prosecution has also relied on documentary evidence e.g. Written Application, Exhibit-ka-1, Injury Report, Exhibits-ka-2 to 10, X-ray report, Exhibit-ka-11 and 12 (X-ray Plates), material exhibit no.1 and 2.

After conclusion of the evidence of the prosecution the statement of the accused persons was recorded under Section 313 of the Cr.P.C. wherein they denied the charges levelled against them and claimed that in fact the informant and his family members and associates had attempted to illegally possess their land and also assaulted them. An F.I.R. pertaining to the incident was lodged by Atiullah on behalf of the respondents/accused persons and it is only to carve out a defense in that case the instant case has been lodged. The accused persons in their defense has also testified D.W.-1/Basant.

The trial court after appreciating the evidence available on record found the case of the prosecution doubtful and acquitted all the accused persons of the charges framed against them.

Aggrieved by the judgment and order of the trial Court dated 17.08.2010, the State has filed instant appeal along with an application for grant of leave to appeal.

Learned A.G.A. while pressing the application for grant of leave to appeal vehemently submits that the trial court has committed manifest illegality in appreciating the evidence on record and has acquitted the respondents on the basis of 'surmises and conjectures' and has given much importance to the minor contradictions which were emerging in the testimony/statements of the prosecution witnesses.

It is further submitted that the trial court has also committed manifest illegality in ignoring the reliable evidence of the injured witnesses while having regard to the settled law the evidence of an injured witness is to be dealt with at higher pedestal than other witnesses, as he had sustained injuries in the incident. Thus, patent illegality has been committed by the trial court in acquitting the accused persons/respondents of the charges framed against them and, therefore, the State be granted leave to appeal for challenging the impugned judgment and order of the trial court.

Perusal of the judgment of the trial court would reveal that the trial court has not found the case of the prosecution beyond reasonable doubt on following scores:-

(i) The land on which the 'chappar' was being laid by the informant's side was not owned by them.

(ii) There are material contradictions in the statement of prosecution witness Banwari and his evidence is not reliable.

(iii) There are glaring contradictions in the statement of prosecution witness no.2 Premvati and P.W.-4/Leelawati.

(iv) The evidence of D.W.-1/Basant is reliable to the tune that the informants side of this case had attempted to take illegal possession on the land owned by accused Samiullah.

(v) Cross case has been filed by the accused persons wherein accused persons are shown to have sustained injuries and their injuries have not been explained by the prosecution.

(vi) Right to defend their property was available to the accused persons and injuries sustained by the injured person of informants side are simple in nature.

The law with regard to the manner and method in which an appliation moved under Section 378 (3) Cr.P.C. is dealt with is now no more res integra and it has been set at rest by the Hon'ble Supreme Court.

Hon'ble Apex Court in the case of Ajmer Singh Vs. State of Punjab, 1953 SCR 418, has held that "in an appeal against acquittal, the High Court has full power to review the evidence upon which the order of acquittal has been founded and the presumption of innocence which is available to all the accused of a crime, is further reinforced by the order of acquittal and the decision of the trial court could be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons."

In the case of Sanwat Singh and Others Vs. State of Rajasthan, AIR 1961 SC, 715 after placing the reliance on the judgment given by Privy Council in Sheo Swarup and Others Vs. The King Emperor AIR 1934 PC 227 (2) and many other authorities Hon'ble Apex Court on the point in issue held as under:-

"The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case(1) afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as,

(i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

In the case of Sadhu Sharan Singh Vs. State of Uttar Pradesh and Others reported in 2016 Cr.L.J. 1908 has considered this difference and has observed as under:-

"18. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, in the case of Sambasivan and Others V. State of Kerala, (1998) 5 SCC 412, has held :

"The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal".

19. This Court, in several cases, has taken the consistent view that the appellate Court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate Court, on scrutiny, finds that the decision of the Court below is based on erroneous views and against settled position of law, then the interference of the appellate Court with such an order is imperative."

Perusal of record and evidence led by the prosecution before the trial court would reveal that the accused persons of this case had also sustained injuries which have not been explained by the prosecution. The informant party in fact had attempted to dispossess the accused persons from the land owned by them. Certainly there are glaring contradictions in the evidence of prosecution witnesses. The injuries sustained by injured persons were simple in nature. The prosecution in this case appears to have suppressed the genesis of incident/occurrence which has cast suspicion on the whole case of prosecution.

It has to be recorded that the golden principle which runs through the web of criminal jurisprudence is that there is initial presumption of innocence in favour of accused of a crime and the same stands fortified by the acquittal of the accused person(s) by the trial Court. So, very strong and cogent reasons are required for interfering in the judgment of acquittal and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed. Keeping in view the inherent weaknesses appearing in the prosecution evidence, we are of the considered opinion that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.

Since application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.

Order Date :- 4.1.2023/Praveen