Allahabad High Court
Jagdish Bahadur vs State Of U.P. And 4 Others on 9 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:85144-DB
Court No. - 67
Case :- CRIMINAL APPEAL DEFECTIVE U/S 372 CR.P.C. No. - 55 of 2024
Appellant :- Jagdish Bahadur
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Vinay Kumar Tiwari
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Re: Criminal Misc. Exemption Application No.02 of 2024.
1. Submission of the learned counsel for the appellant is that he has filed the aforesaid Exemption Application seeking certain exemption from the Court.
2. From the perusal of the said application, it indicates that there are justifiable reasons for seeking exemption and accordingly, the same is allowed.
2. Office is directed to allot regular number to the present appeal.
Order on Appeal
1. Heard Sri Vinay Kumar Tiwari, learned counsel for the appellant and learned A.G.A. for the State of U.P. at length and perused the record.
2. Invoking the power under Section 372 Cr.P.C., the informant Jagdish Bahadur Singh is assailing the legality and validity of the judgment and order dated 09.01.2024 passed by learned Additional Sessions Judge, Court No.8, Allahabad in Sessions Trial No.619 of 1994 (State vs. Shobhnath and others), arising out of Case Crime No.61A of 1993, under Sections 147, 148, 149, 307, 323, 504, 506 IPC, Police Station Sarai Mamrez, District Allahabad by which the learned trial Judge has convicted the opposite party nos. 2 to 5 for lesser offence under Section 147, 148, 323, 324 IPC while the charge was framed under Sections 147, 148, 149, 323, 324, 307, 504, 506 IPC.
3. Pursuant to face trial, accused Shobnath, Parasnath, Raj Narain, Ram Nihor, Ram Adhar, Ram Khilawan, Lallu and Antoo and Dhanraj were summoned, out of these nine accused persons, Raj Narain, Ram Nihor, Ram Adhar, Ram Khilawan and Antoo died during trial and trial against them stood abated.
4. From the judgment it is apparent that after upholding the charges, the learned Trial Judge has convicted the accused Shobnath, Lallu, Parasnath and Dhanraj and punished them under Section 323 IPC for six months imprisonment, under Section 324 IPC for three years imprisonment, under Section 147 IPC for six months imprisonment and under Section 148 IPC for one year. All the sentences would run concurrently.
5. Submission advanced by the learned counsel for the appellant is that the aforesaid judgment is bad in the eye of law and is illegal and contrary to law as the material available on record. Prosecution evidence/material fully supports and attracts that provisions of Section 307 IPC but surprisingly, learned Trial Judge have acquitted the accused respondents from the allegation made in the FIR.
6. Before meeting out of the grounds of the case, it is important to spell out the facts of the case.
7. As mentioned above, all the accused persons were charge sheeted for the offence under Sections 147, 148, 149, 324, 307, 504, 506 IPC, Police Station Sarai Mamrez, District Allahabad. Since the aforesaid five accused persons died on 17.01.1998 leaving behind four of the their accomplishes the charge sheet was submitted. The accused Dhanraj was summoned in exercise of power under Section 319 Cr.P.C.
8. P.W.1 Jagdish Bahadur Singh on 12.05.1993 has lodged an FIR at Police Station Sarai Mamrez, District Allahabad alleging therein that on 12.05.1993, informant's nephew went to attend the call of nature. Due to old enmity, Srinath Yadav started to hurling and verbally abusing and beating his nephew Yashpal who raised his alarm and reached to his home. At this juncture Srinath has also called his family members and instigated them by saying that they would kill all Thakurs. On this instigation, nephew of Srinath as well as Parasnath, Shobhnath came there with katta in their hands, while Baba Dhanraj, Ram Nihor, Antoo reached at the place of occurrence with a pharsa in their hands. Ram Adhar, Ram Khelawan, Lallu and others came to his house with pharsa and lathi in their hands. At this juncture, informant's brother Samar Bahadur Singh and Raj Karan Singh who were at home came out in order to protect his nephew and tried to intervene in the matter. But on the instigation of Srinath, Shobnath and Parasnath opened fire arm from their firearms with the intention to kill. Due to a large crowd, the firing from their firearm which has resulted into injuring their own people in that crowd. Meanwhile, other co-accused persons started indiscriminating beating informant's brother Samar Bahadur Singh and nephews with their lathi and pharsa. This incident was witnessed by Ramakant Chaubey, Ramanugrah Chaubey, Bhagwali Prasad Chaubey, Raghunath Chaubey, Rajnarain Singh, Ram Khilawan, Sarvajeet Tiwari and Parasnath Pandey who tried to intervene in the matter. At this juncture that the basic trust of the argument advanced by Sri Vinay Kumar Tiwari, the learned counsel for the appellant, that the learned Trial Judge has wrongly dropped section 307 IPC and have not convicted the offenders in the aforesaid offence and therefore, the instant appeal is being filed to attend the said target for convicting the accused respondents from the allegations of Section 307 IPC.
9. Admittedly, this incident have resulted into causing injury to Samar Bahadur Singh and Raj Karan Singh. The injuries sustained by Samar Bahadur Singh and Raj Karan Singh is quoted herein below :-
Injuries of Samar Bahadur Singh:
1. Incised wound size 8 cm x 1 cm scalp deep on right side of scalp 7.5 cm above upper margin of left ear. Advice Xray.
2. Incised would size 2.5 cm x 0.6 cm x muscle deep on upper part of left scapular region
3. Contusion size 4 cm x 3 cm on back of occipital eminence 11 cm below the Occipital eminence.
4. Contusion size 4 cm x 2 cm on lateral aspect of right arm deltoid region.
5. Contusion 3 cm x 1 cm on left shoulder joint.
6. Contusion 4 cm x 1.5 cm on post of left wrist.
7. Contusion size 3 cm x 1.5 cm on post of right wrist.
Opinion
All injuries are simple in nature except for injury no. 1 all were kept under observation and adviced X-ray at TB Sapru Hospital. Injury No. 1 and 2 were caused by some sharp cutting rest injury no.3, 4, 5, 6 and 7 were caused by some hard and blunt object.
Duration - Fresh.
Injuries of Raj Karan Singh:
1. Incised wound size 7 cm x 1.2 cm a scalp deep on left side of forehead 3.5 cm above arm medial end of left eye brow. Advice Xray.
2. Contusion size 5 cm x 2 cm on right scapular region.
3. Contusion size 7 cm x 1.5 cm on right side of back trunk just below the lower side of right scapula.
4. Contusion size 4 cm x 2 cm on lateral aspect on right arm deltoid region.
5. Contusion size 6 cm x 2.5 cm on left forearm lateral aspect of the left elbow joint.
6. Contusion swelling size 6 cm x 4 cm on part of aspect of left hand. Advice Xray.
Opinion
All injuries are simple in nature. Except injury no.1 and 6 which is kept under observation Advised Xray at T.B. Sapru Hospital, Allahabad. Injury caused by some hard and blunt object except injury no. which has been caused by some sharp cutting object.
Duration - Fresh.
10. Thus, it is evident from the injuries sustained by Samar Bahadur Singh and Ram Karan Singh, are simple in nature but few of the injures were asked for Xray at T.B. Sapru Hospital, Allahabad. Duration of the injuries sustained by the injured persons is fresh.
11. Learned counsel for the appellant candidly accepted that there is no X-ray report of both the injured persons so as to justify or fathom the gravity of the offence. Samar Bahadur Singh has sustained seven injuries over his person whereas Raj Karan Singh has sustained six injuries over his person and most of them are simple in nature.
12. Learned Trial Judge on 17.1.1998 has framed the charges against all the accused persons under Sections 147, 148, 323, 324 and 307 IPC.
13. During trial, seven witnesses were produced by the prosecution case to establish their case. The prosecution has also produced one prosecution witness as witness of the Court to support their version, whereas one person was produced by the defence side.
14. P.W.1 Yashpal Singh has reiterated the version of the FIR. Needless to mention here is that the present is out come of Case Crime No. 61A of 1993, the fact of the case is that this is the cross case of original Case Crime No. 61 of 1993. The injured witnesses were examined as prosecution witnesses and lastly rendered upon the opinion of the Doctor.
15. P.W.4 Dr. Amrit Lal, Medical Officer, PHC Katra, Gulab Singh, Pratapgarh was examined and in his testimony, he states that all the above injuries have come in a fight. Doctor have do not X-ray report of the injured nor he had any X-ray report in his possession. Therefore, he cannot say about the nature of injuries. However, in the same crux, he states that in the absence of any X-ray report, he cannot assume that the injuries sustained by the injured persons are simple in nature.
16. While discussing and analysing all aspects of the issue, the Court is of the considered opinion that the accused persons and others of this cross Case Crime No.61A of 1993 had used reasonable force in exercise of their right of private defence when accused Yashpal of Case Crime No.61 of 1993 had first ease out near the pumping set of Srinath/deceased. When accused Yashpal of Case Crime No.61 of 1993 was asked not to do so politely, instead of going away he continued to do ease there near the pumping set of Srinath. Yashpal of Case Crime No.61 of 1993 also verbally abused Srinath and beat him up. Yashpal is the author of Case Crime No. 61 of 1993 who called other accused persons Raj Karan Singh, Samar Bahadur Singh and Jagdish Badadur Singh of Case Crime No.61 of 1993 to come there with their gun so that he could kill the Yadavs. Thereafter on instigation of Jagdish Bahadur Singh, co-accused Raj Karan Singh of Case Crime No. 61 of 1993 opened fire injuring Srinath which eventually led to his death in the same evening. The gun shots also injured Parasnath and Raj Narain. Thus, the accused persons of Case Crime No. 61 od 1993 first triggered the incident dated 12.5.1993 by doing ease near the pumping set of deceased Srinath and subsequently, by bringing a licensee gun which is a deadly weapon at the place of incident which was not required.
17. Keeping in mind the gravity of the nature, weapon used in the alleged incident and the injuries sustained by the injured persons, it is clear that the injuries sustained by them would not travel beyond Section 324 IPC in which the accused have also been convicted. So far as Section 307 IPC is concerned, keeping in view the nature of injuries and more over when the injured persons never produced themselves for any radiological test, we are of the considered opinion that there is no substantial ground which can be used to reverse the findings and analysis of the learned Trial Judge.
18. Before proceeding further, it would be appropriate to take note of laws on the appeal against acquittal:-
(i) 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 re-appreciated 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."
(ii) 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.
(iii) 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.
(iv) Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
(v) Since, it is a Government Appeal against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence in the appeal against the acquittal. Recently, in the case of Mallapa and others Vs. State of Karnataka , the Apex Court has held as under :-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive ? inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
19. Assessing the aforementioned analysis and evaluation of the evidence with the aforesaid guidelines given by the Hon'ble Apex Court in the aforementioned judgements, we are of the considered opinion that the learned trial court has taken legally plausible view, which favours the accused-respondents. The judgment impugned is flawless and firm-footed which deserves no interference by this Court in exercise of powers under Section 372 Cr.P.C.
20. Accordingly, the instant appeal stands DISMISSED.
Order Date :- 9.5.2024
Monika
