Allahabad High Court
State Of U.P. vs Chandra Pal And Others on 31 May, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment reserved on: 21.05.2024
Judgment delivered on: 31.05.2024
Neutral Citation No. - 2024:AHC:97426-DB
Court No. - 45
Case :- GOVERNMENT APPEAL No. - 1809 of 1984
Appellant :- State of U.P.
Respondent :- Chandra Pal And Others
Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Prakash Gupta
Hon'ble Rajiv Gupta, J.
Hon'ble Shiv Shanker Prasad, J.
(Delivered by Hon'ble Rajiv Gupta, J.)
1. Heard Shri J.P. Tripathi, learned AGA for the State/ appellant, Shri Ravi Pandey, holding brief of Shri Rahul Kumar Sharma, learned counsel for the accused-respondents and perused the record.
2. The instant government appeal has been filed against the judgment and order dated 20.03.1984 passed by Special Judge/ Additional Sessions Judge, Aligarh in Sessions Trial No. 291 of 1983 (State of U.P. Vs. Yad Ram and 3 Others), arising out of Case Crime No. 96 of 1983, under Section 302 IPC, Police Station Sasani, District Aligarh, by which the accused-respondents have been acquitted for the charge under Section 302 read with Section 34 IPC.
3. During the pendency of the said government appeal, accused-respondent no.2 Hira Lal has already passed away on 06.03.2005 and as such, the instant government appeal qua accused-respondent no.2 Hira Lal has been abated and now, it survives only for accused-respondent no.1 Chandra Pal.
4. The prosecution story as unfurled in the FIR is that a litigation regarding partition of land was pending between the first informant Lala Ram, Raghubir and Ram Prasad, on one hand and Chandra Pal, Hira Lal, Yad Ram and Babu, on the other.
5. It is further alleged that on the joint land, a grove of mango and guava, measuring 16 bigha, was under the control and use of Yad Ram, Babu, Chandra Pal and Hira Lal, whereas on the joint land, measuring 10 bigha, there was another grove, which was in the possession and use of the first informant Lala Ram and his nephew Raghubir (Deceased).
6. It is further alleged that on 14.04.1983 at about 8:00 AM, Lala Ram alongwith his son Ganga Saran and Leela and his nephew Raghubir were present in the grove, where Yad Ram, armed with knife and Babu, armed with lathi, Chandra Pal and Hira Lal, who were unarmed, reached the grove and asked the first informant Lala Ram and his nephew Raghubir as to why they are keeping a watch on the grove and started hurling abuses. In the meantime, Hira Lal and Chandra Pal caught hold of his nephew Raghubir. Babu, who was armed with lathi, exhorted Yad Ram to kill Raghubir, who poses to be very arrogant, consequent thereto, Yad Ram, with an intention to kill Raghubir, assaulted him with a knife blow below his left armpit in the chest. On the alarm being raised, all the four assailants ran away towards Champa Bagh. After some time, his sons Dalbir and Karan Singh also reached the place of incident and took the injured Raghubir on a cot towards Government Hospital, Sasani, where Raghubir succumbed to his injuries.
7. On the basis of the said allegations, a written report, which has been proved and marked as Exhibit Ka-1, was scribed by one Satya Dev, which was taken to the Police Station Sasani and handed over to the Head Moharrir Ram Swaroop Singh, who, on the basis of said written report, lodged a first information report, which has been proved and marked as Exhibit Ka-16, corresponding G.D. entry of which was drawn vide G.D. Report No.14, which has been proved and marked as Exhibit Ka-17.
8. After registration of the first information report, the investigation of the said case was entrusted to S.I. Ram Murti Yadav, who was present at the Police Station. He reached the spot and prepared the inquest report alongwith other relevant documents, including photo lash, challan lash, chitthi R.I., chitthi C.M.O. and sealed samples, which have been proved and marked as Exhibit Ka-11 to Exhibit Ka-13. The investigating Officer also collected the blood-stained earth and plain earth from the place of incident and kept it in a container and prepared its fard recovery memo, which has been proved and marked as Exhibit Ka-14. Thereafter, the corpse was wrapped in a cloth by preparing sample seal and thereafter, dispatched the dead body for the post-mortem. An autopsy was conducted on the person of the deceased by Dr. G.P. Varshney (PW-4). The Doctor has noted following injuries on the person of the deceased :-
(i). Stab wound 1" x 1/2" x cavity deep on the left side of chest in axillary line, 5" below and downward to left nipple. Dry blood sticking to the wound and on chest side.
(ii). Abrasion 1/4" x 1/4" on the inner side of left leg, 6" below knee joint.
In the opinion of the Doctor, the death was due to shock and haemorrhage, as a result of ante-mortem injuries mentioned above.
9. The Investigating Officer thereafter collected the relevant material and after recording the statement of the witnesses and concluding the investigation, submitted charge-sheet against the accused persons, which has been proved and marked as Exhibit Ka-10. On submission of the said charge-sheet, learned Magistrate had taken cognizance, however, since the case was exclusively triable by the court of Sessions, committed the case to the court of Sessions, where it was registered as Sessions Trial No. 291 of 1983 (State of U.P. Vs. Yad Ram and 3 Others).
10. The trial court thereafter framed the charges under Section 302 read with Section 34 IPC against the accused-respondents and the said charges were read out to them, who abjured the charges, did not plead guilty and claimed to be tried.
11. In order to prove the guilt against the accused persons, the prosecution examined as many as six witnesses; Lala Ram (PW-1), Ganga Saran (PW-2) and Smt. Shakuntala (PW-3), wife of the deceased Raghubir as witnesses of fact, while PW-4 Dr. G.P. Varshney was the Medical Officer, who conducted the post-mortem, PW-5 S.H.O. Vijay Singh, the second Investigating Officer, PW-6 S.I. Ram Murti Yadav, being the first Investigating Officer and PW-7 Constable Brij Mohan, who proved the first information report alongwith its corresponding G.D. entry.
12. After recording of the entire evidence, the statement of the accused persons was recorded under Section 313 CrPC and thereafter, the trial court vide impugned judgment and order dated 20.03.1984 has acquitted both the accused persons, against which, present government appeal has been filed with the prayer to reverse the acquittal of the accused-respondents and to convict them for the offence charged with.
13. In order to appreciate the controversy, in question, involved in the present government appeal, it would be apt to discuss the statement of the witnesses, in brief, recorded during the course of trial.
14. PW-1 Lala Ram is the uncle of the deceased as well as first informant of the case. From his testimony, we find that the first informant as well as accused-respondents belongs to one and the same family and their inter-se relationship is quite clear.
Ganga
I
--------------------------------------------------------------------
I I
Khoob Chand Netram
I I
------------------------------------------- ----------------------------
I I I I I
Lalaram Ram Pd. Mohan Lal Sewaram Mulloo
(PW-1) I I I
I Raghubir (deceased) ------------------ ------------------
------------------ Smt. Shakuntal(PW-3) I I I I
I I Hiralal Chandra Pal Babu Yadram
Dalbir Gangasaran (Accused) (Accused) (Accused) (Accused)
(PW-2)
15. PW-1 has further stated that about seven months back at about 8:00 AM, he alongwith his son Ganga Saran (PW-2) and his nephew Raghubir were present at their grove, where accused persons Yad Ram, Chandra Pal, Babu and Hira Lal came. Accused Babu was armed with lathi, Yad Ram was armed with knife, whereas Chandra Pal and Hira Lal were empty handed. Accused persons Chandra Pal and Yad Ram questioned him as to why they are keeping a watch over the grove, to which, Raghubir replied that they are the owner of the grove and therefore, they are keeping a watch over it, consequent to which, accused persons started hurling abuses. Meanwhile, accused Babu asked Yad Ram that Raghubir is posing to be very arrogant, then Chandra Pal and Hira Lal held his nephew Raghubir by his hands and Yad Ram inflicted a knife blow and ran away. On alarm being raised, the assailants threatened him by flashing his knife and made their escape good towards Champa Bagh. The said knife blow was given at the instigation of Babu. After accused persons had left the place of incident, Smt. Shakuntala Devi, wife of the deceased Raghubir, also reached there. Thereafter, Dalbir and Karan Singh reached the place of incident and there was some conversation between Raghubir and his wife Shakuntala. The injured Raghubir thereafter was kept in a cot and taken to the hospital, however, he succumbed to his injuries and then, he was brought to the Police Station, where the first information report was scribed by one Satya Dev, which was read out to him and thereafter, the first information report was registered.
16. During cross-examination, he stated that when Yad Ram reached the place of incident, he was having a knife in his pocket, however, he had not disclosed this fact to the Investigating Officer. He further stated that he had seen Yad Ram taking out the knife from his pocket, the blade of which was five inch long. He further stated that when Hira Lal and Chandra Pal caught hold of Raghubir, he did not expect that they would quarrel with them to this extent. The victim tried to get released. Yad Ram gave only one knife blow to the deceased but did not attempt the second blow and ran away towards Champa Bagh and thereafter, Shakuntala reached at the spot. He further stated that he had disclosed to the Investigating Officer in his statement under Section 161 CrPC about the factum of reaching of Shakuntala at the place of incident but could not state as to why the Investigating Officer had not mentioned the said fact in his statement. He further denied the suggestion that incident took place in the dark and further denied the suggestion that he has not witnessed the incident and Raghubir was killed by some unknown person and that he was not present at the time of incident.
17. PW-2 Ganga Saran is the son of PW-1 Lala Ram. He, in his testimony, has stated that on the fateful day at about 8:00 AM in the morning, he alongwith his father Lala Ram were present in the grove, where Chandra Pal, Hira Lala, Babu and Yad Ram came and started hurling abuses. The deceased Raghubir stated that they are keeping a watch over the grove and the grove belongs to them, on which, Babu instigated to kill him by the knife as he poses to be very arrogant. He further stated that Hira Lal and Chandra Pal were empty handed, whereas Babu was armed with lathi and Yad Ram was armed with a knife. Yad Ram gave a knife blow to the deceased. Hira Lal and Chandra Pal then held him by his hands. The knife blow hit him below the left armpit in the chest. After inflicting the knife injury, they ran away towards Champa Bagh, thereafter, Shakuntala, wife of the deceased Raghubir, reached there followed by Dalbir and Karan Singh.
18. During cross-examination, he stated that he alongwith Raghubir reached at the grove at 5:30 in the morning. After lodging of the report, the Investigating Officer had recorded his statement. He further stated that due to fear, he did not make any attempt to save the victim. When Yad Ram entered in the grove, the knife was in his pocket or in his hands was not seen by him. After Hira Lal and Chandra Pal caught hold of the victim, Babu exhorted to kill Raghubir, then Yad Ram took out the knife from his pocket and gave a knife blow. He further stated that before taking out the knife from the pocket, he had not seen it, however, he has not touched Raghubir. On being questioned, if he, in his statement to the Investigating Officer, had disclosed the fact that after the knife blow, the victim was speaking or not, to which, he replied that "he was already dead". He had further denied the suggestion that he had not seen the incident and before his reaching at the grove, Raghubir was dead.
19. PW-3 Smt. Shakuntala Devi is the wife of the deceased Raghubir. She, in her statement, has categorically stated that she was going from her house to give the food to her husband and had seen Yad Ram, Babu, Chandra Pal and Hira Lal running away from the place of incident towards Chamba Bagh. She further stated that on questioning, her husband informed her that Chandra Pal and Hira Lal caught hold of him and Yad Ram at the instigation of Babu, inflicted a knife blow to him.
20. During cross-examination, she stated that it is wrong to state that she had not seen Chandra Pal, Babu, Yad Ram and Hira Lal running away from the place of incident and that there was no conversation with her husband. She further denied the suggestion that incident had taken place in the dark and she is falsely implicating the accused persons.
21. PW-4 Dr. G.P. Varshney is the Medical Officer, who had conducted an autopsy on the person of the deceased, who had noted the injuries and the post-mortem examination report has also been proved by him, which has been marked as Exhibit Ka-2.
22. During cross-examination, he stated that injury no.2 could be caused by fall and the injury No.1 was sufficient in the ordinary course of nature to cause death.
23. PW-5 S.H.O Vijay Singh is the second Investigating Officer. Earlier, the investigation was done by PW-6 S.I. Ram Murti Yadav, however on 24.04.1983, he had taken over the investigation and interrogated one of the accused persons. He collected the relevant documents relating to copies of Khasra and Khatauni and had sent the blood-stained earth and plain earth for the chemical examination and after concluding the investigation, submitted the charge-sheet.
24. PW-6 S.I. Ram Murti Yadav is the first Investigating Officer and in whose presence, the first information report was registered at 9:15 AM on 14.04.1983. He conducted the inquest on the person of the deceased and prepared the other relevant papers and thereafter, despatched the dead body for the post-mortem.
25. During cross-examination, he categorically stated that PW-1 Lala Ram in his statement under Section 161 CrPC did not disclose. To quote :- लालाराम ने मुझे निम्नलिखित ब्यान नहीं दिया "इस पर मृतक रघुवीर ने कहा कि बाग हमारा है हम रखायेगें। न ये बयान दिया कि मृतक का एक हाथ चन्द्रपाल मुल्जिमान ने पकड़ा व एक हाथ हीरा लाल मुल्जिम ने पकड़ा" न यह ब्यान दिया। लाला राम ने मुझे यह भी नहीं बताया "कि मौके पर शकुन्तला मुल्जिमान के जाने के बाद खाना लेकर आई थी।"
"रघुवीर मृतक व उसकी बीवी की बातचीत हुई थी। मुझे यह भी ब्यान नहीं दिया। चारपाई चम्पा बाग से लाये थे।"
"गवाह नं० 2 यानी गंगा शरण ने भी उपरोक्त सारी बातें अपने ब्यान में नहीं बताई थी।"
26. PW-7 Brij Mohan is the Constable, who has proved the chik FIR and the corresponding G.D. entry, which was drawn by Head Moharrir Ram Swaroop Singh at the relevant date and time, however, he has not been cross-examined.
27. Learned AGA for the State/appellant has submitted that evidence of P.W.1 Lala Ram and P.W.2 Ganga Saran coupled with medical evidence would show that the prosecution has proved its case beyond all reasonable doubt, yet the trial court, on the basis of surmises and conjectures, has illegally recorded the finding of acquittal against the accused-respondents, which is bad in law and is liable to be reversed.
28. Learned AGA has further submitted that from the evidence adduced during the course of trial, it is proved beyond all reasonable doubt that the accused-respondent Chandra Pal in furtherance of the common intention with all the accused, has committed the instant offence and therefore, he is liable to be convicted under Section 302 read with Section 34 IPC, however, the trial court completely misjudged the evidence on record and has illegally recorded the finding of acquittal against the accused-respondents, which is bad in law and is liable to be reversed.
29. Per contra, learned counsel for the accused-respondents has submitted that trial court has appreciated the material and evidence available on record in right perspective. He has further submitted that from the entire evidence adduced during the course of trial, the role of catching hold assigned to the accused-respondents, is highly doubtful, which is further fortified from the circumstance that role of "catching hold" assigned to the accused-respondent Chandra Pal has been stated for the first time in court by P.W.1 Lala Ram and P.W.2 Ganga Saran and they had not disclosed the said factum to the Investigating Officer, who recorded their statements under Section 161 Cr.P.C. and as such, there is clear improvement in the statement of P.W.1 Lala Ram and P.W.2 Ganga Saran qua the role of catching hold assigned to the accused-respondents, which makes their testimony highly unreliable and creates serious dent in the prosecution story as held by the trial court in the impugned judgment and order, which finding is just, proper and legal and do not call for any interference.
30. Learned counsel for the accused-respondents has further submitted that Section 34 of IPC qua accused-respondent is not attracted in the present case. He has further submitted that prior concert or pre-arranged plan to kill the deceased has not been established and only act assigned to the accused-respondent is of catching hold, which too is highly doubtful. It was co-accused Babu, who had exhorted the co-accused Yad Ram to kill the deceased and on his exhortation, Yad Ram had given a knife blow to the deceased causing his death.
31. Learned counsel for the accused-respondents has further submitted that accused-respondents were unarmed and from the testimony of P.W.1 Lala Ram and P.W.2 Ganga Saran, it is borne out that accused-respondent Yad Ram suddenly took out the knife from his pocket and gave a single knife blow to the deceased, which was not within the knowledge of the accused-respondent and thus, it is urged that by no stretch of imagination, Section 34 of IPC would be applicable to the accused-respondent and the finding recorded by the trial court in this respect is just, proper and legal and do not call for any interference.
32. Having considered the rival submissions made by the parties and having gone through the record, we find that the instant case was a result of dispute between the two parties, who were relatives amongst themselves, over the control and use of the grove, Accused persons reached at the place of incident and started hurling abuses and thereafter, it is alleged that accused-respondents Hira Lal and Chandra Pal caught hold of the deceased Raghubir by his hands and on the exhortation of co-accused Babu, accused Yad Ram gave a knife blow to the deceased Raghubir on his chest causing his death.
33. In support of its case, the prosecution has produced P.W.1 Lala Ram and his son P.W.2 Ganga Saran to be the eye-witnesses of the incident. It is further stated that after the incident of assault, when the assailants had run away, Smt. Shakuntala Devi, wife of the deceased Raghubir, also reached there and had a conversation with the deceased Raghubir.
34. When we go through the testimonies of PW-1 Lala Ram and PW-2 Ganga Saran, we find that presence of PW-3 Smt. Shakuntala Devi, wife of the deceased Raghubir, at the time of incident is highly doubtful, which finds corroboration from the fact that PW-1 Lala Ram, in his statement under Section 161 CrPC, has not disclosed to the Investigating Officer about the presence of Smt. Shakuntala at the time of incident.
35. Further, the testimony of PW-3 Smt. Shakuntala Devi that her husband had a conversation with her is falsified from the statement of PW-2 Ganga Saran, wherein, on being questioned as to whether he had disclosed to the Investigating Officer, that the victim was speaking after being inflicted with a knife blow, to which, he stated that he had already died. To quote :- "प्रश्न- क्या आपने दरोगा जी को अपने ब्यान में यह बात बताई थी कि चाकू लगने के तुरन्त बाद बोलता था या नही? उत्तर- वह तो मर गया था।"
36. Even from the statement of PW-4 Dr. G.P. Varshney, who had conducted the post-mortem, it is clear that after receiving the said injury, a man may become unconscious and looking to the nature of the injury caused to the deceased, we are of the opinion that factum of conversation between the deceased Raghubir and his wife Smt. Shakuntala Devi is too far-fetched and is highly doubtful. Even P.W.-6 S.I. Ram Murti Yadav, in his cross-examination, has categorically stated that neither P.W-1 Lala Ram nor P.W.-2 Ganga Saran had disclosed to him that there was a talk between the deceased and his wife. To quote: "लालाराम ने मुझे यह भी नहीं बताया कि मौके पर शकुन्तला मुल्जिमान के जाने के बाद खाना लेकर आई थी रघुवीर मृतक व उसकी बीबी की बातचीत हुई थी। मुझे यह ब्यान भी नही दिया था। गवाह नं० 2 गंगाशरण ने भी उपरोक्त सारी बाते अपने ब्यान में नही बताई थी। "
37. Thus, from the said statement, it is evident that the presence of P.W.-3 Smt. Shakuntala Devi at the time of incident is highly doubtful. Her testimony, in the backdrop of the said circumstance, is not worth credence and in our opinion, she is a wholly unreliable witness and rightly discarded by the trial court.
38. Now, coming to the testimony of P.W.1 Lala Ram and P.W.2 Ganga Saran, we find that they are father and son and highly partisan and interested witnesses and related to the deceased also. Even, as per the statement of P.W.-1 Lala Ram and P.W.-2 Ganga Saran, the only role assigned to the accused-respondents is that of catching hold. Even, while assigning the said role, there is apparent inconsistency in their statements. As per the statement of P.W.-1 Lala Ram, accused Chandra Pal along with Hira Lal, first of all caught hold of the deceased by his hands and thereafter, on the exhortation of Babu, Yad Ram gave a knife blow to the deceased. To quote: "बाबू मुल्जिम ने यादराम से कहा देख क्या रहा है यह बहुत हेकड़ बन रहा है और एक हाथ रघुबीर मृतक का चन्द्रपाल मुल्जिम ने पकड़ा और एक हाथ हीरा लाल मुल्जिम ने पकड़ा। याद राम ने रघुवीर के चाकू मारा और फिर यह भागे हमने हल्ला गुल्ला मचाया। इस पर हमे चाकू दिखाते हुये कहा कि खत्म कर देंगे। यह चारो लोग चम्पा बाग में भाग गये। यह चाकू बाबू के कहने से मारा था।
39. While, P.W.-2 Ganga Saran, in his examination-in-chief, has stated that "बाबू ने कहा मार दो साले को चाकू यही दम में दम भरता है। हीरा लाल व चन्द्र पाल खाली हाथ थे बाबू पर लाठी थी और यादराम पर चाकू था।
यादराम ने चाकू मार दिया हीरा लाल और चन्द्र पाल ने मृतक रघुवीर के हाथ पकड़े। चाकू बाई बगल के नीचे लगा। चाकू मारने के बाद ये लोग चम्पा बाग की तरफ भाग गये।"
40. Thus, from the statement of P.W.2 Ganga Saran, it is borne out that on the exhortation of Babu, Yad Ram had given a knife blow to the deceased Raghubir, whereas Chandra Pal and Hira Lal were empty handed and after the assault by a knife, they are said to have held the victim by his hands.
41. Thus, there is material inconsistency in the statement of P.W.-1 Lala Ram and P.W.-2 Ganga Saran regarding the catching hold of the victim, whether after the assault has been made by the knife or before inflicting the knife blow on the chest of the deceased.
42. Furthermore, the role assigned to the accused-respondents of catching hold is falsified from the statement made by P.W.-6 S.I. Ram Murti Yadav, Investigating Officer, wherein it has been categorically stated that " लालाराम ने मुझे निम्न लिखित ब्यान दिया " इस पर मृतक रघुवीर ने कहा कि बाग हमारा है। हम रखायेंगे। न यह ब्यान दिया था कि मृतक का एक हाथ चन्द्रपाल मुल्जिम ने पकडा व एक हाथ हीरा लाल मुल्जिम ने पकड़ा। लालाराम ने मुझे ये भी नही बताया था कि मौके पर शकुन्तला, मुल्जिमान के जाने के बाद, खाना लेकर आई थी। गवाह नं०2 गंगासरन ने अपने ब्यान में ये सारी बात नही बताई थी। "
43. Thus, from the said testimonies of P.W.-1 Lala Ram and P.W.-2 Ganga Saran assigning the role of catching hold qua accused-respondent Chandra Pal is concerned, it is evident that the same has been stated for the first time in court and has not been disclosed to the Investigating Officer at the time of recording their statement under Section 161 Cr.P.C., which shows that there is a clear improvement in the statement of both the witnesses P.W.-1 Lala Ram and P.W.-2 Ganga Saran regarding the role of catching hold assigned to the accused-respondent Chandra Pal, which makes their testimony highly doubtful and unreliable.
44. The Hon'ble Apex Court in a recent decision reported in (2024) 3 SCC 164 Darshan Singh Vs. State of Punjab, has held that if the prosecution witnesses fail to mention in their statement under Section 161 Cr.P.C. about the involvement of an accused, their subsequent statement before the court during trial, regarding involvement of that particular accused cannot be relied upon and, similarly, prosecution cannot seek to prove a fact during trial through eye-witness, which such witness had not stated to police during investigation and, thus, evidence of that witness regarding the said improved fact is of no significance as in the present case, which we have discussed above.
45. In the light of the principles laid down by the Hon'ble Apex Court in the aforesaid decision, we are of the opinion that role of catching hold assigned to the accused-respondent Chandra Pal is highly doubtful as rightly held by the trial court and his participation in the incident as alleged in the prosecution story becomes highly unreliable and not worth credence.
46. Now, only question, which is left for our consideration is whether in the facts and circumstances of the present case, accused-respondent Chandra Pal can be convicted under Section 302 with the aid of Section 34 IPC as submitted by the learned AGA for the State.
47. It is well settled principle of law as held by the Hon'ble Apex Court in the case reported in (2022) 6 SCC 576, Gadadhar Chandra Vs. State of West Bengal, wherein it has been held that the common intention pre-supposes prior concert, it requires meeting of minds, a pre-arranged plan before a man can vicariously be convicted for the criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused.
48. Now, applying the said principle of law, as laid down by the Hon'ble Apex Court in the case of Gadadhar Chandra (Supra), we find that from the testimonies of P.W.-1 Lal Ram and P.W.-2 Ganga Saran, it is clearly borne out that they were unarmed and both the aforesaid two eye-witnesses P.W.-1 Lala Ram and P.W.-2 Ganga Saran in their statement has categorically stated that Yad Ram at the time of assaulting the deceased, suddenly took out the knife from his pocket and gave a knife blow to the deceased after being exhorted by the co-accused Babu. Even, the role of exhorting Yad Ram to kill Raghubir has not been assigned to him, rather only role of catching hold the victim by his hands is alleged to be made against them. In support of which, there is material inconsistency in the statement of two eye-witnesses P.W.-1 Lala Ram and P.W.-2 Ganga Saran, as to whether they held the deceased after the knife blow was given to the deceased or held him before the knife blow was given, which has already been discussed above.
49. Thus, from the attending facts and circumstances of the case and the settled principle of law laid down by the Hon'ble Apex Court, we find that the accused-respondent Chandra Pal at the relevant point of time, did not have the common intention to cause the death of the deceased and therefore, in our opinion, he has rightly been acquitted by the trial court, which order, in our opinion, is just, proper and legal and do not call for any interference, more so, by reversing the acquittal.
50. Moreover, the Hon'ble Apex Court in the case reported in (1999) 8 SCC 555 Ramashish Yadav and Others Vs. State of Bihar, has held that for common intention, prior concert of meeting of minds is essential. Even, if an offence is committed at the spur of the moment, prior concert must be there. Merely because two persons had held the deceased while other two, had given gandasa blows to the deceased, it cannot be held that the two persons, who had held the deceased, shared common intention with the other two, to murder the deceased. Even, on the aforesaid principles of law laid down by the Hon'ble Apex Court, the accused-respondent, in our opinion, is entitled for acquittal.
51. It is well settled principle of law that there is a presumption of innocence in favour of the accused-respondent Chandra Pal, which further has been concretised by recording the finding of acquittal against the accused-respondents.
52. The law with regard to interference by the appellate court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments, which are as reproduced below:-
(i). In the case of Sadhu Saran Singh Vs. State of U.P. (2016) 4 SCC 397, the Hon'ble Apex Court has held that:-
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded."
(ii). Similarly, in the case of Harljan Bhala Teja Vs. State of Gujarat (2016) 12 SCC 665, the Hon'ble Apex Court has held that:-
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
53. The Hon'ble Apex Court in Criminal Appeal No. 111113 of 2015 (Rajesh Prasad Vs. State of Bihar and Another) has encapsulated the legal position covering the field after considering various earlier judgments and held as under:-
"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:-
(i) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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."
54. 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:-
(i). That the judgment of acquittal suffers from patent perversity;
(ii). That the same is based on a misreading/omission to consider material evidence on record;
(iii). That two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
55. 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.
56. In our opinion, the trial court has passed a well reasoned and detailed order, which, in view of settled principle of law regarding reversal of acquittal, needs no interference by this Court. The view taken by the trial court cannot be said to be perverse, impossible and illegal and as such, present Government Appeal filed by the State has no force and is accordingly dismissed.
57. Let a copy of this judgment and order be forwarded to the court concerned alongwith trial court record for information and necessary compliance.
Order Date:- 31.05.2024
Nadim
