Allahabad High Court
Sooraj Pal vs State Of U.P. And Others on 13 November, 2024
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:178152-DB
Reserved On- 25.10.2024
Delivered On-13.11.2024
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 4803 of 2010
Appellant :- Sooraj Pal
Respondent :- State of U.P. and Others
Counsel for Appellant :- Anshul Tiwari,R.B. Gaur
Counsel for Respondent :- J.P.Singh,Kuldeep Jauhari
Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon?ble Siddharth,J.)
1. Heard Sri R.B. Gaur, learned counsel for the appellant; Sri V.P. Srivastava, learned Senior Counsel, assisted by Sri Anshul Tiwari and Sri Kuldeep Jauhari, learned counsel for opposite parties; Sri Prem Shanker Prasad, learned AGA for the State and perused the material placed on record.
2. This criminal appeal has been filed against the judgment and order dated 26.06.2010 passed by Additional Sessions Judge, Court No.1, Sahjahanpur, in Sessions Trial No. 1158 of 2008 (State Vs. Lakhpat and Others) under sections- 147, 148, 149, 307, 302 IPC, Case Crime No. 94 of 2008, Police Station- Jaytipur, District- Sahjahanpur, whereby respondents have been acquitted from all the charges by trial court.
3. The prosecution case, as per F.I.R. is that, it was the time of festival of holi , but mother of informant had died, therefore, celebrations were not being made. On 22.03.2008, the family members of the informant were sitting under a neem tree in front of house of Buddh Pal and waiting for Akhat ( offerings in holi fire), when at about 01:30 p.m., respondents, Lakhpat, Ritesh, Pintoo, Gauri, Shyam Pal, Atar Singh, Narveer, Brijmohan, Sarvesh and Ram Mohan armed with licensed and unlicensed weapons came and fired upon the informant and his family members, namely, Smt. Rajeshwari, Sunli, Krishna Pal and Sooraj Pal. On account of firing, Sunil Kumar son of Rampal, Rajeshwari son of Rampal, Sooraj Pal and Buddh Pal sons of Ram Charan and Krishna Pal son of Ram Charan got seriously injured. Netrpal, Smt. Nirmala, Nand Ram, Hari Ram and informant, Anil Kumar, did not suffered any injury. The injured persons were taken in a private jeep to Shahjahanpur Hospital for treatment. The people in the locality were afraid and not willing to lodge the F.I.R. It was lodged at 14:30 hours on the same day by Anil Kumar, P.W.-1.
4. The trial court framed charges against the respondents under section 302 IPC read with section 149 IPC. The respondents denied the charges and sought trial.
5. To prove the prosecution case, prosecution produced following witnesses:- P.W.-1, Anil Kumar; P.W.-2, Smt. Rajeswari; P.W.-3, Sunil Kumar; P.W.-4, Krishna Pal; P.W.-5, Sooraj Pal; P.W.-6, Dr. K.B. Jain; P.W.-7, Rajendra Singh,S.H.O/Investigating Officer of the case; P.W.-8, Sub-Inspector, Omkar Pandey; P.W.-9,Dr. Parmendra Maheshwari; P.W.-10, Dr. Munish Tandon; P.W.-11,Sub-Inspector, Dinesh Kumar and P.W.12- Sub-Inspector, Ram Bahadur Singh.
6. Statements of the accused/respondent nos. 2 to 11 were recorded under section 313 Cr.P.C. wherein they alleged false implication.
7. P.W.-1, Anil Kumar, stated that deceased, Buddh Pal, was his uncle. As per allegations in the F.I.R., the respondents caused alleged incident wherein Sameer Kumar, Rajeshwari, Sooraj Pal, Buddh Pal, and Krisha Pal suffered gun shot injuries while Netrapal, Nirmala, Nand Ram and Hari Ram and the informant, who were present on the spot did not suffered any injuries. All of them had seen the incident. After some time, Buddh Pal, died. Other persons were medically examined and he got the F.I.R. lodged by giving an application at the police station written by Abhishek on his dictation.
8. P.W.-2, Smt. Rajeshwari, admitted the incident, but stated that the respondents did not caused any incident before her nor anyone got injured.
9. P.W.-3 and P.W.-4, also admitted the incident, but did not assigned any role to respondents of causing injuries to the injured or the deceased.
10. P.W.-5, Sooraj Pal, supported the prosecution case as stated in the F.I.R. He further stated that respondent, Lakhpat, was armed with rifle, Atar Singh was armed with a single barrel licensed gun, Pintoo Singh, Ritesh Singh, Shayam Pal and Gauri Singh were armed with pistols. Narveer was having single barrel licensed gun, Brij Mohan, was having a pistol, Sarvesh was having rifle of Netrapal and Ram Mohan was having single barrel licensed gun. All of them had fired and resultantly, Buddh Pal, died. Sunil Kumar, Krishna Pal, Rajeshwari and Sooraj Pal, suffered injuries. After the incident, he became unconscious and could not see in which direction the accused persons escaped. There was litigation regarding the fair price shop pending between his deceased brother, Buddh Pal and respondent, Lakhpat. Because of the aforesaid litigation, there was enmity between them. Inspector, Netrapal, did not made any inquiry from him. He was treated at Bareilly in Ganga Charan Hospital. After he regained consciousness, his statement was recorded after 6-7 days. Witnesses, Netrapal, Smt. Nirmala and Nand Ram are afraid of the accused persons, therefore, they should not be produced as witnesses. The accused present in court, were involved in the incident.
11. P.W.-6, Dr. K.B. Jain, who conducted the autopsy of dead body of the deceased, Buddh Pal, proved the fire arm injury caused to him.
12. P.W.-7, Investigating Officer, Rajendra Singh, proved the recovery made by him and they were exhibited before the court.
13. P.W.-8, Sub-Inspector, Omkar Pandey, is a formal witness.
14. P.W.-9, Dr. Parmendra Maheshwari, proved the injury reports of the injured who had suffered number of gun shot injuries.
15. P.W.-10, Dr. Manish Tandon, proved injury report of injured, Sooraj Pal.
16. P.W.-11, Sub-Inspector, Dinesh Kumar, proved the arrest of the accused and the recovery of arms made from them.
17. P.W.-12, Sub-Inspector, Ram Bahadur Singh, proved the record of investigation conducted by him before the court and the filing of the chargesheet before the court.
18. In the statements of the respondents recorded under section 313 Cr.P.C., they have stated that their implication in this case and its investigation by the police was not in accordance with law and they have been falsely implicated in this case.
19. Learned counsel for the appellant has submitted that trial court has committed patent legal error in acquitting the respondents of all charges. The fact of turning of four prosecution witnesses hostile, namely, P.W.-1, P.W.-2, P.W.-3 and P.W.-4, proved that respondents were dreaded criminals and no one dared to give evidence against them. He has further submitted that P.W.-5, Sooraj Pal, brother of deceased, fully supported the prosecution case and motive of commission of crime by the respondents. He has further submitted that findings of the trial court in this regard is perverse and deserves to be set aside by this Court.
20. We have heard the learned counsel for the parties and before proceeding to hear the above noted appeal directed against the judgment and order of acquittal passed by trial court, the power of the appellate court in this regard requires to be kept in mind. The Apex Court in the case of Murlidhar @ Gidda and Another Vs. State of Karnatka, (2014) 5 SCC 730 has held in this regard as follows:-
? 10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, ?? the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.? The opinion of the Lord Russell has been followed over the years.
11.As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, ????.the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.?
21. We find that there are five prosecution witnesses in this case and four of them were declared hostile. Only testimony of P.W.-5, Sooraj Pal, remained intact. Sooraj Pal, set up motive of crime as enmity of deceased, Buddh Pal, with accused-respondent, Lakhpat, regarding a fair price shop license. The trial court has considered the motive of crime set up by P.W.-5, but has found that the prosecution has failed to prove by leading any evidence of any litigation regarding fair price shop between Lakhpat and the deceased, Buddh Pal. The trial court has also considered the allegation that is there was enmity between Lakhpat and deceased, Buddh Pal, but did not found it. Trial court has held that time of 01:30 p.m., would not have been chosen for committing alleged crime and the same could have been committed in night in seclusion. P.W.-5, also failed to prove before the trial court under which provision of law, his deceased brother, Buddh Pal, lodged case against respondent, Lakhpat. He also could not state before the court about the fate of such case. He stated that 6-7 years prior to the incident, respondent, Lakhpat, was having license of the fair price shop. P.W.-5, stated in his cross-examination that one month prior to murder of his brother, Buddh Pal, the fair price shop license in favour of respondent, Lakhpat, was cancelled. Therefore, trial court concluded that the motive of crime set up by P.W.-5 before the trial court against the respondent, Lakhpat, was not proved.
22. Learned counsel for the appellant has not been able to explain how the motive of the crime set up by P.W.-5 before the trial court was proved and how the finding of the trial court is perverse and deserves to be set aside.
23. We further find that the trial court has recorded clear finding based on the medical evidence that the incident as alleged at 01:30 p.m., never took place rather it took place at 04:00 a.m., and that incident was also different from the incident alleged by prosecution against the respondent. Trial court has further found that no evidence of the presence of offerings, which were required to be offered in the Holika, were found by the police on the spot. Only empty cartridges and bloodstains were found. The findings of the trial court with regard to evidence of P.W.-1 to P.W.-4 have also not been shown to be suffering from any perversity or legal infirmity by the counsel for appellant. We are also not able to find any other view of the incident possible. There are no reasons for taking different view from that taken by the trial court with regard to the incident and the findings of the trial court based on evidence before it.
24. Accordingly, we are of the view that judgment and order of the trial court is justified and calls for no interference and is hereby confirmed.
25. The criminal appeal is dismissed.
26. Office will notify this judgment to the trial court and return the record within two weeks.
Order Date :-13.11.2024
Abhishek
(Subhash Chandra Sharma,J.) (Siddharth,J)
