State Of U.P. vs Doodh Nath And Others
2023 Latest Caselaw 14944 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:103850-DB
 
Court No. - 44
 

 
Case :- GOVERNMENT APPEAL No. - 1751 of 1987
 

 
Appellant :- State of U.P.
 
Respondent :- Doodh Nath And Others
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- Radhey Shyam Shukla,A.K.Baranwal,Ajay Kumar Barnwal,Kashinath Yadav,Shivam Yadav
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Shiv Shanker Prasad,J.

1. Heard learned A.G.A. for the State as well as Sri Kashinath Yadav, learned counsel for all the accused-respondents and perused the record. This is a Government Appeal of the year 1987 listed time and again.

2. This appeal under Section 378 (3) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), at the behest of the State, has been preferred against the judgment and order dated 30.03.1987 passed by learned Sessions Judge, Ghazipur acquitting accused-respondents who were tried for commissioning of offence under Sections 147, 364 and 302 read with Section 149 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

3. Brief facts as culled out from the record are that accused Doodh Nath and Ram Naresh Yadav are real brothers. Accused Ram Lal and Udayee are sister's sons of Doodh Nath. It is alleged that accused Markandey, Sheo Pujan and Aliyar belong to the group of Doodh Nath. The accused persons ran a High School in the name of Shaheed Chandrashekhar Azad High School in village Salempur Baghayee. Deceased Muneeb Ram had also opened Ambedkar Primary Pathashala at Salempur Baghayee. It is alleged that when Muneeb Ram opened this school, the students studying in the school of the accused persons started leaving the school of the accused persons and joining the school of the deceased Muneeb Ram. On account of that the accused persons bore animosity against Muneeb Ram. It is alleged that the Gram Samaj of village Salempur Baghayee had allotted land to Muneeb Ram and other Harijans of the village. Accused Doodh Nath wanted to usurp the land and take possession of it. For this Muneeb Ram had sent complaints to Home Minister, S.O.C. and other officials of the district against Doodh Nath and others. This was another reason due to which the accused persons bore animosity against Muneeb Ram.

The prosecution case further is that about a week before the occurrence, the mother of Muneeb Ram had died. On 7.9.1985 Muneeb Ram alongwith the complainant Chandrika and two other persons namely, Ram Awadh and Ugrah had gone to Rampur Bazar for making purchases in connection with the performance of last rites of his mother. After making necessary purchases, all these persons were coming back to their village. In the way when they reached near Kot in the east of Shahead Chandrashekhar Azad High School, the accused persons sprang from behind the bushes. They caught Muneeb Ram and abducted him despite protest by the complainant as well as Ram Awadh and Ugrah, but they also abused and threatened with dire consequences. After this, the complainant as well as Ram Awadh and Ugrah came to their village and narrated the story to Somar ,brother of Muneeb Ram and then Ram Briksh, Deonath, Ram Awadh and they armed with lathis and torches, gone from the village in search of Muneeb Ram. The search continued for the whole night. At about 5 A.M. they found the dead body of Muneeb Ram lying near the Sharda Canal which is in the north of Shaheed Chandrashekhar Azad High School. There were injuries on the dead body of Muneeb Ram. The complainant Chandrika then dictated report of the occurrence to Ram Awadh, who reduced it to writing. Chandrika then signed it. The said written report is

4. The F.I.R culminated into charge-sheet and accused were committed to Sessions.

5. On being summoned, the accused-person 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-respondents were committed to the Court of Sessions. The learned Sessions Judge framed charge for commission of offence of murder punishable under Section 302 of the Indian Penal Code (IPC).

6. The Trial started and the prosecution examined 8 witnesses enumerated as below:

Chandrika Ram

PW1

Kailash Ram

PW 2

Ram Ugrah

PW3

Ram Awadh Ram

PW4

Dr. U.P. Sharma

PW5

Shiv Pujan

PW6

Ramanuj Pandey

PW7

Nand Kumar Singh

PW8

7. In support of ocular version following documents were filed:

Written Report dated 8.9.1985

Ex.Ka.1

First Information Report dated 8.9.1985

Ex.Ka.3

Recovery memo of blood stained and plain earth

Ex.Ka.11

Site plan with Index dated 8.9.1985

Ex. Ka.10

5.

Post Mortem Report dated 9.9.1985

Ex.Ka.2

8. At the end of the trial and after recording the statement of the accused persons under section 313 Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents as mentioned above.

9. Learned A.G.A. for the State has submitted that 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 judgment impugned is erroneous and liable to be set aside.

10. Learned counsel for the accused-respondents submits that according to prosecution Muneeb Ram was abduucted at about 8 P.M on 7.9.1985, while the F.I.R. has been lodged after considerable dealy at about 9.15 A.M. on 8.9.1985, after a lapsed of more than 13 hours and the police station was only 6 to 10 km away from the village. It is submitted that abducted was Muneeb Ram took place in presence of P.Ws.1, 3 and 4 at about 8 P.M., they could have gone to the police station in the same night and could have lodged report.

It is further submitted that the prosecution witness have stated that in the Raipur Bazar they had purchsed some Pakauries, which was shared by Muneeb Ram as well as P.Ws.1, 3 and 4, which does not tally with the post mortem report about finding of stomach and intistined contents. This shows that the entire prosecution story about the abduction of Muneeb Ram by the accused persons is full of serious infirmity and doubts and cannot safely be accepted.

Lastly he has submitted that dead body of the Muneeb Ram was found in the morning of 8.9.1985. No body had sas his murder being committed. There is no eye witness of murder.

11. Before we embark on testimony and the judgment of the Court below, the contours for interfering in criminal appeals where accused has been held to be non guilty would require to be discussed.

12. 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."

13. 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."

14. 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.

15. 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."

16. 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.

17. 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."

18. 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]"

19. 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."

20. 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."

21. 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."

22. 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."

23. 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.

24. We have perused the depositions of prosecution witnesses, documentary evidence supporting ocular versions, arguments advanced by learned counsel for the parties. We have been taken through the record. We are unable to accept the submissions of the State counsel for the following reasons and the judgments of the Apex Court which lay down the criteria for consideration of appeals against acquittal. The chain has been found to be incomplete. 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 the findings of the court below.

25. Hence, in view of the matter & on the contours of the judgment of the Apex Court, we concur with the learned Sessions Judge.

26. The appeal lacks merits and is dismissed. The record and proceedings be sent back to the Court below. The bail and bail bonds are cancelled.

27. We are thankful to learned A.G.A. for ably assisting the Court.

Order Date :- 12.5.2023

Abhishek Singh