Allahabad High Court
Mahendra Chauhan vs State Of U.P. And 5 Others on 21 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93360-DB
Court No. - 67
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 255 of 2024
Appellant :- Mahendra Chauhan
Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- Kamlesh Shrama
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
1. Heard Sri Kamlesh Shrama, learned counsel for the appellant and learned A.G.A.
2. By means of the present appeal, the appellant is assailing the legality and validity of the order dated 16.03.2024 passed by the Additional Sessions Judge, Court No.1, Mau in S.T. No.154 of 2014 (State Vs. Appu Yadav and others) arising out of case crime no.361 of 2014, under section 307/149 of I.P.C., Police Kotwali Mau, District -Mau whereby acquitting the accused/respondents under Section 307/34 I.P.C. and convicted the accused Ramashray Yadav and Bechu Yadav under Section 324 r/w 34 I.P.C. for three years imprisonment and a fine of Rs.5,000/- each and in case of default three months additional imprisonment.
3. The long and short of the FIR is that the informant Mahendra Chauhan on 28.4.2014 lodged an FIR that his brother Ramratan Chauhan S/o Charittar Chauhan was going on his motorcycle on 28.4.2014 around 8:15-8:45 P.M. on that time from the rear side Bechu Yadav, Ramashray Yadav residents of village Kor, District Ghazipur came on running motorcycle and they have fired upon his brother. Two fires gone in blank, however, third fire has given a gunshot injury on the right arm above the chest. Soon after getting the firearm injury the injured Ramratan Chauhan fallen down from the motorcycle. After getting the information from people they were taken the injured to the Sadar Hospital, Mau and thereafter he was referred to B.H.U., Varanasi for further treatment. The injured Ramratan Chauhan has informed that three persons have given fire. He states that after turning back he has identified the accused. After lodging the FIR the police has started investigating the matter and after getting the sufficient material three accused persons Appu Yadav, Golu Singh and Rakesh Chauhan were added in the charge sheet. However, in exercise of power 193 Cr.P.C. on 28.5.2015 Bechu Yadav, Ramashray Yadav, Appu Yadav, Golu Singh and Rakesh Chauhan included as accused. On 16.3.2018 the charges framed against Bechu Yadav, Ramashray Yadav, Appu Yadav, Golu Singh and Rakesh Chauhan under Section 307/149 I.P.C.
4. After concluding the prosecution the accused persons called upon to explain the incident under Section 313 Cr.P.C.
5. The prosecution has produced five witnesses to establish the case and twelve documents were also produced which was duly exhibited by the trial court. As mentioned above the charges were framed against the accused persons under Section 307/149 I.P.C.
6. This is a candid case that on 28.4.2014 in between 8:15-8:45 P.M. Ramratan Chauhan (injured) was going on his motorcycle to his residents from Balia Mod at that time Bechu Yadav and Ramashray Yadav and one more persons have fired upon injured from the rear side on a running motorcycle and the said fire landed on the right shoulder above the chest of the injured causing a serious injury.
7. This is a positive case of the informant. This firing incident has taken place from the rear side as culled out in the FIR. P.W.-1 (Mahendra Chauhan) has reiterated the same version of the FIR, however, P.W.-2 (Ramratan Chauhan) injured has tried to shift the stand of the prosecution by making a mention that two fires were went in blank and third fire landed over his right shoulder. So far as the motive is concerned he states that there are inimical relations between him and accused Ramashray Yadav and Bechu Yadav on account of Pradhan Election and, therefore, they have tried to eliminate him. He also accuses the I.O. that on account of political pressure he has excluded the name of Ramashray Yadav and Bechu Yadav from the charge sheet. But in exercise of power under Section 193 Cr.P.C. their name were included in the charge sheet. P.W.-4 (Dr. M.K. Pandey) who has treated the injured in his testimony states that the injured has sustained injury over his right arm incircled around 8 c.m. and the blood was oozing out of it. He was advised for the x-ray. The firearm injury was fresh. The interesting features is that the first informant Mahendra Chauhan was put in cross examination he was reiterated the version of the FIR that all the fire incident was taken place from the rear side whereas the injured in his cross examination states that this injury was caused to him from the distance of 3-4-5 feet over his right arm. The said bullet embedded in the flesh.
8. We have easily perused the site plan prepared by the I.O. of the case in which from the x side the injured was said to have arrived and given fire. In paragraph no. 53 of the judgment after assessing the testimony of the Dr. M.K. Pandey has been clearly mentioned that he states that injured has sustained injury over his right arm, which is not vital part of the body and this injury was not sufficient to take anybody life and assessing the entire case the learned trial court has sentenced Bechu Yadav and Ramashray Yadav for the offence under Section 324 r/w 34 I.P.C. for three years imprisonment and a fine of Rs.5,000/- each and in case of default three months additional imprisonment. Taking into account and serious contradiction in the testimony of the informant as well as injured. In our considered opinion, learned trial court has arrived at the right conclusion and rightly convicted the Bechu Yadav and Ramashray Yadav for the offence under Section 324 r/w 34 I.P.C.
9. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
10. 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."
11. 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.
12. 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.
13. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
14. 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."
15. This Court has lead its hands to the recent judgment of the Hon'ble Apex Court passed in Crl. Appeal No. 555 of 2020 decided on 28.8.2020 (Parvinder Kansal Vs. The State of NCT of Delhi & Another) whereby the ambit and scope of Section 372 Cr.P.C. was promulgated by the Hon'ble Apex Court in following terms :
"A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377. Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the the instance of the victim, is maintainable."
16. Thus, after thrashing the entire evidences on record and after critically analyzing the submissions advanced and the findings recorded by the learned trial Court, we are of the considered opinion that the judgment of the trial court does not suffer from any illegality or non appreciation of evidence. The reasoning adopted by the learned trial Judge is quite sound and suitable which do not warrant any interference.
17. We have heard learned counsel for the appellant at length and we do not find any impropriety and illegality in the judgment of trial court and learned trial Judge has rightly convicted the accused Bechu Yadav and Ramashray Yadav which deserves no interference from this Court in exercise of power under section 372 Cr.P.C. We also do not find that the findings recorded by the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.
18. Accordingly, the instant appeal lacks merit and is hereby dismissed.
Order Date :- 21.5.2024
Md Faisal
