Allahabad High Court
State Of Up vs Ramdhan And Others on 8 May, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:83125
Court No. - 87
Case :- GOVERNMENT APPEAL No. - 1141 of 1993
Appellant :- State of U.P.
Respondent :- Ramdhan And Others
Counsel for Appellant :- G.A.
Hon'ble Samit Gopal,J.
1. List revised.
2. Sri Ajay Singh, learned A.G.A.-I for the appellant/State is present. No one appears on behalf of the respondents even in the revised list.
3. Office vide its report dated 29.11.2022 and 05.12.2022 reported that in compliance of the order dated 27.9.2022 a compliance report has been received from C.J.M., Muzaffar Nagar stating therein that the respondent no. 1/Ramdhan and the respondent no. 3/Umrao Singh have died 10 years back and 20 years back respectively. Death verification report of gram pradhan is also annexed with the said report. Office further reports that the respondent nos. 2/Dharm Singh, 4/Shreepal and 5/Ramesh have left the village 13 years back and no one knows their whereabouts. Notices upon the respondent no. 6/Brahm Singh and respondent no.7/Kishan have been served. Despite service of notice no one appears on their behalf even in the revised list.
4. Learned A.G.A. submits that he is also unable to locate the respondent nos. 2, 4 and 5 and as such is not in a position to serve notice upon them.
5. In view of the same, the Court proceeds to hear the matter. The Court appoints Mr. Ajay Kumar Pandey, Advocate Roll No. A/A 0219/12, an "Amicus Curiae" to defend the respondents in this appeal. He has been given time to go through the records and he has gone through the records and states that he is in a position to argue the matter.
6. Heard learned A.G.A. for the appellant/State, learned Amicus Curiae for the surviving respondents and perused the records.
7. The Government Appeal has been filed by the State/appellant against the judgement and order dated 19.3.1993 passed by Xth Additional District and Sessions Judge, Muzaffar Nagar in Session Trial No. 114 of 1985, State vs. Ramdhan and others, whereby the trial court has acquitted of the charges lavelled against them under Sections 147, 324/149, 325/149, 308/149 I.P.C.
8. The facts of the case that an F.I.R. was lodged on 02.5.1983 at about 13:30 hours by Kalu Ram as Case Crime No. 35 of 1983, under Sections 147, 308 I.P.C. against 08 persons namely Ramdhan, Kishan, Dharm Singh, Umraon, Shripal, Jagroshan, Ramesh and Brahm with the allegation that Mansa Ram had purchased 1-1/2 bighas land from Tirkha. On the said land Mansa Ram had harvested wheat and sown arhar. Ramdhan and Dharm Singh ploughed arhar field. On 02.5.1983 at about 11:00 a.m. in the fields when Mansa Ram reached there, he tried to stop him but the accused persons who were armed with lathi and ballam, together launched an attacked on him. On hearing shouts Brahm Singh, Kaliya, Jai Singh and Teeka reached there to them him who were also assaulted by all the accused persons. Nanha, Ratan, Bijendra and Rishipal reached at the place of occurrence and save Mansa Ram and others. Brahm Singh was given a ballam blow by Ramdhan on his vital part. Mansa Ram received injuries and was unconscious. The other persons also have received injuries. The injured persons have sent to the police station. Subsequently Buddh Singh, Mansa Ram, Tika Ram, Kali Ram and Jai Singh were medically examined by Dr. S.K. Mittal who was examined as P.W.-4. The matter was investigated in which site plan was prepared. The medical examination reports of the injured Buddha Singh/Ex. Ka-2, Mansa Ram Ex. Ka-3, Tika Ram/Ex. Ka-4, Kali Ram/Ex. Ka-5 and Jai Singh/Ex. Ka-6 were produced and proved before the trial court. X-ray examination of Mansa Ram was proved as Ex. Ka-9, Kala Ram as Ex. Ka-10 & 11, Jai Singh as Ex. Ka-12 & 13, Buddh Singh as Ex. Ka 14, 15 & 16. The accused Ramdhan received injuries and was medically examined by Dr. S.K. Mittal and his injury is Ex. Kha-1, injury of Shri Kishan is Ex. Kha-2, Brahm Pal is Ex. Kha-3 and Dharam Singh is Ex. Kha-4. The investigation concluded and charge sheet was submitted against the accused persons under Sections 147, 148, 149, 324, 325, 308 I.P.C. The trial court vide order dated 05.09.1985 framed charges under Sections 147, 324/149, 325/149, 308/149 I.P.C. The accused pleaded not guilty and claimed to be tried. The trial in the matter started in which Mansa Ram was examined as P.W.-1, Budh Singh was examined as P.W.-2, Katoo Ram was examined as P.W.-3, Dr. S.K. Mittal was examined as P.W.-4, M.S. Ambedkar(investigating officer) was examined as P.W.-5, Dr. D.C. Mobar was examined as P.W.-6 and S.C. Pathan (investigating officer) was examined as P.W.-7. The injuries of the accused persons were proved by Dr. S.K. Mittal/P.W.-4. The trial court vide the impugned judgement and order came to a conclusion that the accused persons were not the aggressors in the matter. It is thus extended the benefit of doubt to them and acquitted them of the charges levelled against them. During trial the accused Jagroshan had died and as such his trial stood abated. Against the said judgement and order dated 19.3.1993 the present appeal has been filed.
10. Learned counsel for the State/appellant submitted that the trial court failed to consider the fact that there are as many as 05 injured persons in the present matter amongst whom Budh Singh received 06 injuries, Mansa Ram received 09 injuries amongst which one injury was kept under observation and was found to have had fracture, Tika Ram received 06 injuries, Kali Ram received 04 injuries amongst which one injury was found to have had fracture and Jai Singh received 06 injuries amongst which one injury was kept under observation and was found to have had fracture. It is submitted that as such the present case is a case in which there are 5 injured witnesses and disbelieving their testimony would not be a proper method to decide the trial. It is submitted that the trial court has also not appreciated the fact that the incident is a day light incident and the accused persons are known persons and as such there was no occasion of mis-identity and therefore, the view taken by the trial court is perverse and deserves to be set aside and the accused/respondents deserves to be convicted.
11. Learned Amicus Curiae for the accused/respondents submitted that in the present matter four accused persons have also received injuries. Their injuries have been proved by the Dr. S.K. Mittal/P.W.-4 in his cross-examination. It is submitted that there is no doubt that the said injuries were received at the same time as per the prosecution of the present case. It is submitted that in so fr as the injuries of the accused are concerned, the prosecution is silent regarding it and the F.I.R. is also silent regarding the injuries received by the accused persons. It is submitted that more so the present appeal is an appeal against acquittal. The accused persons have been extended the benefit of doubt. The view of the trial court is one of the possible views and it can not be said that the same is totally perverse which calls for its reversal. It is submitted that as such the present appeal against acquittal be dismissed.
12. After having heard learned counsels for the parties and perusing the records, it is evident that the present appeal is against acquittal of the respondent nos. 1 to 7. The respondent no. 1/Ramdhan and the respondent no. 3/Umrao Singh are reported to be dead as per office report dated 29.11.2022/05.12.2022 wherein it is reported that as per report of C.J.M., Muzaffar Nagar dated 23.11.2022 that Ramdhan has died around 10 years back whereas Umrao Singh has died around 20 years back. In support of the same, a report of concerned police station as well as the statements of Reetu Chaudhari, Gram Pradhan, Garhi Hasanpur, P.S. Jhinjhana, Brahmpal resident of Garhi Hasanpur, P.S. Jhinjhana and Sachin Puniya S.I., P.S. Jhinjhana recorded before the court of C.J.M. concerned have been annexed. In view of the same, the appeal in so far as the respondent no. 1/Ramdhan and the respondent no. 3/Umrao Singh is concerned, stands abated.
13. In so far as the surviving respondents are concerned, the present case is a case of assault by the accused persons due to which 05 persons are said to have received injuries. There are 4 persons who have received injuries from the side of the accused who are accused in the present matter. Their injuries have been duly proved by Dr. S.K. Mittal as P.W.-4. The said injuries are exhibited. The prosecution is silent regarding the injuries received by them.
14. The law with regards to an appeal against acquittal is trite. The Apex Court in the case of Babu Sahebagouda Rudragoudar and others vs. State of Karnataka: Criminal Appeal No(s). 985 OF 2010, 2024 INSC 320, decided on 19.04.2024, in Para Nos. 36 to 40 has held as under:-
"36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial Court.
37. This Court in the case of Rajesh Prasad v. State of Bihar and Another: (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below:
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415]
"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, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 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 emphasise 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."
38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka: (2023) 9 SCC 581, this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:-
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission
to consider material evidence on record;
(c) That no two reasonable views are possible and
only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
15. Interference thus in an appeal against acquittal is stated to be on the principles that if the judgement of acquittal suffers from patent perversity, the same is based on misreading and/or omission to consider the material evidence on record and that no two reasonable views are possible and the only view possible is consistent with the guilt of the accused. In the present case 04 accused persons have received injuries. The injuries are found to be proved by P.W.-4 Dr. S.K. Mittal who has also proved the injuries of 05 injured persons from the side of the prosecution.
16. In so far as the injuries received by the accused persons are concerned, the F.I.R. and the prosecution is silent regarding the injuries. There has thus been a suppression of material fact which is also viewed as that of the suppression of genesis of the occurrence, is also not truthful disclosure by the prosecution.
17. The judgement and order impugned of the trial court is well considered and a reasoned judgement. It does not call for any interference.
18. The appeal is dismissed.
19. Office to communicate this order along with the trial court records, if any received, to the concerned trial court within two weeks.
(Samit Gopal,J.)
Order Date :- 8.5.2024
Naresh
