Allahabad High Court
State Of U.P vs Raju Katari on 22 August, 2025
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:145298
Court No. - 64
Case :- GOVERNMENT APPEAL No. - 1904 of 1983
Appellant :- State Of U.P
Respondent :- Raju Kabari
Counsel for Appellant :- A.G.A.
Counsel for Respondent :- Neeraj Kumar Srivastava,Palak Basu,Pawan Kumar Patel
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Ajay Singh, learned A.G.A.-I for the State/appellant, Sri Pawan Kumar Patel, learned counsel appearing for the accused/respondent no. 2-Narsingh Yadav and perused the record.
3. The present government appeal under Section 377 Cr.P.C. has been filed against the judgement and order dated 10.6.1983 passed by Vth Additional Sessions Judge, Mirzapur in Sessions Trial No. 249 of 1981, State vs. Raju Kabari and another. The present government appeal has been filed against two accused/respondents being respondent no.1/Raju Kabari and respondent no. 2/Narsingh Yadav. The appeal in so far as the accused/respondent no.1 Raju Kabari is concerned, stood abated vide order dated 09.4.2024 of this Court. The same thus survives only for accused/respondent no. 2/Narsingh Yadav.
3. The accused/respondents were convicted by the trial court under Section 324 I.P.C. and instead of sending them to jail, were ordered to be released on probation for good conduct for two years on their executing personal bonds in the sum of Rs.2000/- and two sureties each of the like amount. It was further directed that during the period of probation the accused will live under the supervision of District Probationing Officer. It was directed further that in case the accused commit the breach of terms of probation they shall undergo rigorous imprisonment for entire period. The accused/respondents were charged under Section 307 I.P.C. but the trial court came to its conclusion that the offence committed by them does not fall within the purview of Section 307 I.P.C. and is rather covered under Section 324 I.P.C. and thus held them guilty under Section 324 I.P.C. Against the said judgement and order of conviction the accused/respondents preferred Criminal Appeal No. 1606 of 1983, Raju and another vs. State of U.P., before this Court. The State also preferred a Government Appeal against the said judgement and order whereby the accused were acquitted from the charges under Section 307 I.P.C. being Government Appeal No. 1909 of 1983, State vs. Raju Kabari & another. Both the appeals being Criminal Appeal No. 1606 of 1983 and Government Appeal No. 1909 of 1983 were connected together and were decided by a common judgement and order dated 07.10.2015 by a Division Bench of this Court. The Criminal Appeal No. 1606 of 1983 was allowed and the impugned judgement and order dated 10.6.1983 passed against the accused/appellant Narsingh Yadav was set aside and the order of release on probation was also set aside. The accused/appellant Narsingh Yadav was acquitted of the charges under Section 324 I.P.C. The Division Bench observed that during pendency of the appeal Raju Kabari had died and thus his appeal against conviction and government appeal against acquittal stood abated. In so far as Government Appeal is concerned the same was dismissed by the same judgement and order passed by the Division Bench. The present Government Appeal has been filed on the ground that maximum sentence to be awarded under Section 324 I.P.C. is 03 years and thus giving benefit to the accused/respondents of Section 4 of First Offenders Act is illegal and thus the prayer has been made to set aside the judgement and order of the trial court and enhance the sentence awarded to the accused/respondent no. 2 Narsingh Yadav.
4. Without dialiting on the facts of the matter and the evidence recorded in the matter, it would be proper to extract the judgement and order dated 07.10.2015 passed by the Division Bench of this Court in the represented appeals of the accused and the government appeal against acquittal of the charge under Section 307 I.P.C. The said judgement and order is extracted herein below:-
"The instant criminal appeal filed by the accused-appellants is directed against the judgment and orders dated 10.6.1983 passed by Shri Gaya Prasad, the then Additional Sessions Judge, Mirzapur in Sessions Trial No.249 of 1981 (State Vs. Raju Kabari and another) convicting the appellants under Section 324, IPC and releasing them on probation for a period of two years.
The Government Appeal filed on behalf of the State is also directed against the aforesaid judgment and orders whereby the respondents in the Govt. Appeal were acquitted from the charge framed under Section 307, IPC.
Since both the appeals arise out of the same Sessions Trial and challenge the correctness of the same judgment and orders, they are disposed of by a common judgment.
The facts of the prosecution case in these appeals may be summarised as under:-
That on 13.7.1981 at 7.10 a.m. Vaikunth Singh handed a written report to in-charge outpost Renukoot, police station Pipri, District Mirzapur stating therein that on 12.7.1981 at 11.00 p.m. he was sitting with Dev Prasad Singh and Mohan Prakash Pandey. At that time Raju Kabari and Nar Singh Yadav came there and took Dev Prasad Singh by saying that they had something to talk with him. After sometime they heard shout of Dev Prasad Singh, running there he and Mohan Prakash Pandey saw that Raju Kabari and Nar Singh yadav were belabouring Dev Prasad Singh with Gandasa and other sharp edged weapon while Raju Kabari was saying that he had asked him to give his hotel for running its business, but he gave it to another person, for that reason he would not spare him that way. When the assailants saw them, they chased him and Mohan Prakash Pandey, thereafter they dragged Dev Prasad Singh towards the Jhopri of Raju Kabari. They searched for Dev Prasad Singh in the light of torch, but he could not be found. After great search at about 5.30 a.m. nearby the scene of occurrence Dev Prasad Singh was found unconscious in injured state in a pit. He requested for necessary action on his report.
At this chik FIR was scribed, case under Sections 307, 323, 324, IPC was registered. Relevant entry was made in the report of the General Diary. Investigation was entrusted to S.I. B.P. Srivastava, who investigated the matter and submitted the charge sheet against the two named accused.
In the Court of Session both accused/appellants were charged for attempted murder of Dev Prasad Singh, under Section 307, IPC separately. They denied the charges and claimed to be tried. They were tried together.
On behalf of the prosecution in order to prove the charges in documentary evidence besides other papers written report, Exhibit Ka-1, Chik FIR, Exhibit Ka-3, memo of blood stained cloths, Exhibit Ka-2, injury report, Exhibit Ka-5, site plan, Exhibit Ka-6 were filed. In the oral evidence six witnesses were examined. Details of their testimonies are as under:-
Vaikunth Singh, PW-1, first informant and eye witness of the occurrence
In his evidence he supported prosecution version and proved injury report.
Dev Prasad Singh, PW-2, injured
He substantiated the prosecution version, gave details of the occurrence.
Surendra Mani Tripathi, PW-3, scribe of chik FIR
Proved Chik FIR, Exhibit Ka-3, report of the General Diary, Exhibit Ka-4.
Mohan Prakash Pandey, PW-4, eye witness named in the FIR
He supported the prosecution version.
Dr. Ved Bhushan Sharma, PW-5
He conducted the medical examination of injured Dev Prasad Singh on 13.7.1981 at 7.10 a.m., proved the injury report, Exhibit Ka-5 and opined incised wounds were caused by sharp edged weapon and contusions were caused by blunt object. At the time of examination injuries were 8 hours old. According to him, the injuries could not suddenly cause the death of the injured.
Bhola Prasad Srivastava, PW-6
He is the Investigating Officer, gave details of the steps during investigation proved site plan, Exhibit Ka-6 and charge sheet, Exhibit Ka-7.
After evidence for the prosecution was closed, statements of the accused were recorded wherein they denied the facts stated by the eye witnesses, pleaded ignorance about the medical evidence, claimed that they were wrongly charge sheeted. According to Raju, police was pressurising him to give evidence in many cases in their support. When he declined, he was falsely implicated. Nar Singh Yadav claimed that Dev Prasad Singh was stealing coal and iron of the Railway. He had reported against him. For this reason he was falsely implicated. On the night of the incident he was on duty at Patratu distanced 298 Km. from the place of occurrence.
On behalf of Nar Singh Yadav, Deo Nandan Prasad, DW-1 inspector R.P.F. and Hardeo Singh, DW-2, Head Constable, R.P.F. were examined. Gist of their evidence is that on 12.7.1981 Nar Singh Yadav was on duty. Patratu is at the distance of 200-250 Km. from Renukoot. He was found to have reached Patratu on 12.7.1981 by a passenger train and departed from there on 13.7.1981 by another passenger train.
Learned trial Judge after hearing the arguments convicted both the accused, however, he held them not guilty of attempted murder but only guilty for causing voluntarily injuries to Dev Prasad Singh by dangerous weapon and released them on two years probation.
Feeling dissatisfied the State has filed appeal against acquittal and the convicted accused have filed appeal against their conviction. During pendency of appeal Raju Kabari has died. His appeal against conviction and the Govt. Appeal against acquittal stand abated.
Heard Shri Rajeev Kumar Mishra, learned AGA for the State and Ms. Zia Naz Zaidi, learned Amicus Curiae on behalf of accused Nar Singh Yadav in both the appeals and perused the record.
Learned Amicus Curiae in support of Criminal Appeal has submitted that both the witnesses had not seen the occurrence. They are planted witnesses. They have been wrongly believed. She has further submitted that on the place of occurrence there was no source of light. Learned trial Judge has erroneously held that there was light. She has further submitted that ocular version of the occurrence is in contradiction with the facts that emerged from medical evidence.
On behalf of the State-Respondent learned AGA has repelled these arguments.
In support of the appeal against acquittal Shri Rajeev Kumar Mishra, learned AGA has submitted that findings recorded by the learned trial Judge are illegal and perverse. There was sufficient evidence to establish that injuries were inflicted with the intention of causing death, merely because injuries were found simple in nature does not lead to conclusion that assailants had no intention to commit murder. According to him, findings recorded by the learned trial Judge are perverse and deserve to be set aside and respondent in Govt. Appeal be convicted and sentenced under Section 307, IPC.
Learned Amicus Curiae on behalf of respondent no.2 has repelled these arguments.
The arguments submitted on behalf of the parties will be considered in detail hereinafter.
First we would like to clarify the scope of jurisdiction and duties enjoined on this Court while hearing appeal against conviction.
Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
We are conscious of the fact that we are also dealing with an appeal filed against the order of acquittal under Section 307, IPC. Learned counsel for the parties have invited our attention towards circumstances pointed out in the case of Chandrappa vs. State of Karnataka (2007) 4 SCC 415 under which the finding of acquittal may be interfered with by the Appellate Court.
The observations made in the aforesaid case was reiterated in a recent decision in Murugesan vs. State Through Inspector of Police (2012) 10 SCC 383 wherein Hon'ble Supreme Court had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in para 21 of the judgment may be extracted hereinunder:
"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup Vs. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227 (2) is to be found in para 42 of the Report in Chandrappa Vs. State of Karnataka(2007) 4 SCC 415. The same may, therefore, be usefully noticed below:
"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 Code of Criminal Procedure, 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."
Keeping in view of the aforesaid settled position of law while dealing with an appeal against acquittal under Section 307, IPC, we have delved into the evidence available on record and have come to the conclusion that the finding of acquittal recorded by learned trial court is fully borne out by the evidence on record and the view taken by the learned trial Judge is equally 'a possible view'.
In reference to Govt. Appeal why we have formed the above opinion we would like to give our reasons first. Thereafter, we would take into consideration grounds taken in support of challenge against the finding of conviction recorded against Nar Singh Yadav.
Since medical evidence bears significance in both the appeals, first we would have a glance at it. The medical evidence consists of statement of Dr. Ved Bhushan Sharma, PW-5 and injury report, Exhibit Ka-5. Dr. Ved Bhushan Sharma, PW-5, has stated, that has been summarised by us hereinbefore. Injuries found on the person of Dev Prasad Singh at the time of medical examination were recorded in injury report, Exhibit Ka-5. These injuries are as under:-
1.Clean Cut 8 cm. x 2 cm. x bone deep right side of forehead. 2.Abrasion 2.5 cm. x 1 cm. middle of head.
3.Abrasion 2.5 cm. x .5 cm. on the left eye brow.
4.Clean cut 2 cm. x 11 cm. on the nose.
5.Abrasion 1-1/2 cm. x ½ cm. on the bridge of the nose.
6.Clean cut 5.5 cm. x 1.5 cm. x muscle deep left side of face near the lower eye lid of left eye.
7.Abrasion 33 cm. x 6 cm. in the right upper arm.
8.Clean cut 3 cm. x ½ cm on the back of right hand little finger.
9.Abrasion 1.5 cm. x ½ cm. on the back of middle finger of right hand.
10.Abrasion 1.5 cm. x 1 cm. on the back of right finger of right hand.
11.Abrasion 22 cm. x ½ cm. in the middle of the abdominal wall.
12.Abrasion 6 cm. x 2 cm. on the wall near injury no.11.
13.Bruise 25 cm. x 18 cm. on the left half of the trunk upper part.
14.Bruise 20 cm. x 15 cm. on the back of right half of the trunk upper part.
15.Clean cut 18 cm. x 15 cm. on the anterior surface middle of right thigh ¾ cm. denth.
16.Clean cut 5 cm. x 2 cm. into bone deep middle of right leg anterior surface.
17.Clean cut 10 cm. x ½ cm. x ¾ cm middle of the left thigh.
18.Bruise 16 cm. x 4 cm. near injury no.17.
19.Clean cut 4 cm. x ½ cm. on the back lower half of the right leg.
20.Abrasion 2.5 cm. x 11 cm. on the back of right joint.
21.Abrasion 6 cm. X 1.5 cm. on the back of right thigh.
22.Abrasion 1 cm. x ½ cm. on the back of left thigh.
23.Abrasion 2.5 cm. x ½ cm. on the back of left thigh upper half.
24.Abrasion 25 cm. x 6 cm. on the back in the sacral region.
Dr. Ved Bhushan Sharma was cross examined only about the address of the injured written by him and nature of weapon used to cause contusions. According to him, in the present matter probably abrasions could not have been caused by lathi. Only contusions could have been caused by lathi.
Leaving aside nature of weapon for causing injuries we hold that other facts stated by this witness are not in dispute, hence, we conclude that at the time of medical examination on the person of Dev Prasad Singh 24 above injuries were found. They could have been caused by sharp edged weapon and blunt object.
After examining the medical evidence we find that in the opinion of the doctor injuries sustained by the injured were not sufficient in the ordinary course of nature to have caused the death of Dev Prasad Singh. On this ground learned trial Judge had formed an opinion that charge under Section 307, IPC stood not proved. To challenge this finding learned AGA has referred the statement of Vaikunth Singh, PW-1, Dev Prasad Singh, PW-2, Mohan Prakash Pandey, PW-4 wherein all these have stated that Raju Kabari before assaulting the injured had threatened him to commit his murder. According to learned AGA, these oral testimonies are indicative of the intention of the assailants. We agree that oral evidence has primacy over medical evidence. We also find that words spoken carry lesser weight than the actual acts done by the assailants. Though verbally Raju Kabari proclaimed his intention to commit murder, but he did not actually commit the murder of Dev Prasad Singh. Both the eye witnesses claimed that they were threatened whereat they withdrew themselves from the spot at the relevant time. There was no hindrance to prevent Raju Kabari and Nar Singh Yadav in killing Dev Prasad Singh, but they voluntarily left him alive that shows they merely wanted to teach him a lesson at the most.
We notice that in the facts and circumstances of the case and evidence available on record, learned trial Judge has rightly held that assailants had no intention to commit murder, therefore, Govt. Appeal has no substance and it deserves to be dismissed. Both the accused were rightly acquitted from the charge under Section 307, IPC.
So far as conviction of appellant no.2 Nar Singh Yadav is concerned, learned Amicus Curiae has made long drawn arguments. We would like to conclude this matter by saying that the learned trial Judge has not acted fairly by discarding the defence evidence. Nar Singh Yadav was on duty. On that date he had performed his duty on 12th and 13th July. These facts have been established from the evidence of two defence witnesses. Merely because they belong to the same department does not mean they were falsely deposing to save Nar Singh Yadav. To this extent, we find approach of the learned trial Judge erratic and he has not appreciated the defence evidence in proper perspective.
The prosecution has obligation to prove the charges beyond reasonable doubt, but the accused under Section 105 of the Evidence Act though is required to prove plea of alibi but this burden is not so heavy as it is on the prosecution. The accused has to show only by probability that plea of alibi is bonafide. During cross examination the testimonies of defence witness remained unshaken. We find them to be reliable witness and hold that at the time of occurrence in connection with his duty appellant no.2 was at Patratu which is at the distance of 298 Km from the place of occurrence. Therefore, geographical distance makes it improbable that at the time of occurrence appellant no.2 could have been present there. Against his complicity in the crime there is fair amount of doubt. Against him charge under Section 324, IPC could not be proved by the prosecution beyond reasonable doubt. We think he is entitled to be acquitted from that charge extending him benefit of doubt. To this extent, appeal against his conviction deserves to be allowed. His conviction under Section 324, IPC and order for his release on two years probation deserve to be set aside.
Resultantly, Govt. Appeal is dismissed and the Criminal Appeal is partly allowed. The impugned judgment and orders dated 10.6.1983 passed against him are set aside and order of his release on probation are also set aside. He is acquitted from the charge under Section 324, IPC. He is on bail. He need not surrender. His personal bond and bail bonds are cancelled and sureties are discharged.
Ms. Zia Naz Zaidi, Advocate, was appointed as Amicus Curiae on behalf of the accused-Respondent no.2, Nar Singh Yadav to assist the Court in hearing the Criminal Appeal No.1606 of 1983 and Government Appeal No.1909 of 1983. Ms. Zia Naz Zaidi, Advocate, rendered valuable assistance to the Court. The Court quantifies Rs. 10,000/- to be paid to Ms. Zia Naz Zaidi, Advocate towards fee in lieu of the assistance provided by her in hearing the Criminal Appeal and Govt. Appeal referred to above. The above amount be paid to Ms. Zia Naz Zaidi, Advocate by the Registry of the Court within two months. "
5. Since the Division Bench of this Court has allowed the represented appeal of the accused and acquitted him of charges under Section 324 I.P.C. and also the government appeal challenging their acquittal under Section 307 I.P.C. also stood dismissed by the said judgment and order, thus the present government appeal for enhancement of sentence awarded under Section 324 I.P.C. cannot sustain.
6. In view of the same, the present government appeal for enhancement of sentence is dismissed.
7. The accused/respondent no. 2 Narsingh is on bail. His bail bonds are cancelled and sureties are discharged.
8. Registrar (Compliance) to communicate this judgement and order along with trial court records to the concerned trial court for information and necessary action.
9. A perusal of the records shows that name of the accused/respondent no. 1 is Raju Kabari but it has been wrongly shown/printed as Raju Katari in the array of parties/particulars of parties by the office in the case title. Office to correct the same as Raju Kabari in its computer data base and make a note about it in the order sheet.
(Samit Gopal,J.)
Order Date :- 22.8.2025
Naresh
