State Of U.P. vs Soney Lal And Others
2023 Latest Caselaw 15140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:35215-DB
 
Chief Justice's Court
 
Government Appeal No.889 of 1982
 

 
      State of U.P.                   		  ----                                    Appellant 
 
	Vs 
 
      1. Soney Lal 	(deceased)
 
      2. Raja Ram	 	(deceased) 				     
 
      3. Sri Krishna 	(deceased)
 
      4. Vinod Kumar alias Ajai Kumar   ----                              Respondents
 

 
	For Appellant 		: 	Sri Shailendra Tripathi, AGA
 
	For Respondents 		: 	Sri Saksham Agarwal, Amicus
 

 
Hon'ble Pritinker Diwaker, CJ.
 
Hon'ble Rajan Roy, J.

Per: Pritinker Diwaker, CJ.

1. Challenge in the present Government Appeal is to the impugned judgment and order dated 13.4.1982 passed by III Additional Sessions Judge, Hardoi in Sessions Trial No. 668 of 1981 (State Vs. Soney Lal and others), acquitting the respondents of the offences under Section 307/34 of IPC.

2. Brief facts of the case are that on 21.6.1981, accused respondents are alleged to have fired aiming the injured, namely Prem Kumari, Raj Wati, Ram Naresh and Laxmi. It is alleged that injured persons have received number of gun shot injuries. After investigation, charge sheet was filed and charges were framed against the accused respondents u/s 307/34 IPC.

3. So as to hold accused respondents guilty, prosecution has examined seven witnesses. Statement of accused respondents were recorded u/s 313 Cr.P.C. in which they pleaded their innocence and false implication.

4. By the impugned judgement, disbelieving the statements of witnesses including injured witnesses, trial court has acquitted all the accused persons, namely, Soney Lal, Raja Ram, Vinod Kumar alias Ajai Kumar and Sri Krishna on the ground that motive and place of occurrence have not been proved and no independent witnesses have been examined by the prosecution. Hence the present appeal by the State, assailing the acquittal of the accused persons.

5. Learned counsel for the appellant-State submits:

(I) that trial judge has erred in law in acquitting the accused respondents;

(II) that when injured persons themselves have stated that they sustained injuries which were caused by the accused persons, question of any other evidence is not required; and

(III) that medical report of the injured also supports the prosecution case, wherein the Doctor has categorically opined that the injuries sustained by the injured persons have been caused by the fire arm.

6. On the other hand, supporting the impugned judgment, learned Amicus appearing for the accused-respondents has argued:

(I) that the acquittal of the accused persons is in accordance with law;

(II) that the alleged weapon used in the commission of offence has not been seized by the prosecution;

(III) that prior enmity has also not been proved by the defence;

(IV) that it is important to submit here that as per report of the C.J.M., Hardoi dated 8.8.2017, out of four acquitted accused, three accused, namely Soney Lal, Raja Ram and Sri Krishna have already expired and the only surviving accused is Vinod Kumar alias Ajai Kumar, who is now more than 65 years of age and, therefore, no useful purpose would be served in sending back him to jail; and

(V) that the role assigned to all the accused persons is almost identical, where it is alleged that all the accused persons have caused fire arm injuries to the injured persons.

7. We have heard learned counsel for the parties and perused the record.

8. From the evidence of eye-witnesses, namely Harnam Singh (PW-1) Ram Naresh (PW2) and Ganga Ram (PW-3), it is apparent that general role of firing has been assigned to the accused persons. Though there were other injured persons also, but they have not been examined by the prosecution for the best reasons known to the prosecution and considering all these aspects of the case, the trial judge has acquitted the accused persons.

9. From the evidence, it is clear that but for two witnesses, namely Ram Naresh (PW2) and Ganga Ram (PW-3), there is no other clinching and conclusive evidence, showing the involvement of accused persons. Most importantly, the offence occurred in the year 1981 and out of four accused persons, three have already expired and the surviving accused is now more than 65 years of age.

10. After considering all the evidence as adduced by the prosecution, the court below has reached to the conclusion of acquitting the accused persons. The view taken by the trial court is one of the possible and plausible view and it cannot be said to be perverse. Taking cumulative effect of the evidence, we are of the view that there may be some evidence against the surviving accused but it is not sufficient to convict him after 40 years of the incident.

11. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonably possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under:

"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."

12. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;-

"31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -

"37. In Chandrappa v. State of Karnataka, this Court held: ( SCC p. 432 para 42), (1) An appellate court has full power to review, reappreciate 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 curtail 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."

32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:

"39. The following principles emerge from the cases above:

1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanor of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."

13. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :

"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.

36. In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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."

Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."

14. Considering the above legal position and the factual aspect of the case, we are of the view that the trial Judge was justified in acquitting the accused respondents.

15. The appeal has no substance and the same is, accordingly, dismissed

16. This Court appreciates the assistance rendered by learned Amicus on behalf of surviving accused respondent. Accordingly, we direct the High Court Legal Services Sub-Committee to pay a sum of Rs.5000/- towards his remuneration.

 
Date:  15.05.2023
 
RK
 
       (Rajan Roy,J)    (Pritinker Diwaker, CJ.)