Allahabad High Court
State Of Up vs Mohd. Sarik Abbasi on 4 March, 2025
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved On: 16.01.2025
Judgment Delivered On: 04.03.2025
Neutral Citation No. - 2025:AHC:29127-DB
Court No. - 46
Case :- GOVERNMENT APPEAL No. - 967 of 2024
Appellant :- State of U.P.
Respondent :- Mohd. Sarik Abbasi
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Rajiv Gupta,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Delivered by Hon'ble Rajiv Gupta, J.)
1. The present Government Appeal under Section 378(3) Cr.P.C. along with an application for leave to appeal, has been filed against the impugned judgment and order dated 19.10.2022 passed by Additional Sessions Judge, Court No. 15, Kanpur Nagar in Sessions Trial No. 301 of 2018 (State of U.P. Vs. Mohd. Sarik Abbasi), arising out of Case Crime No. 163 of 1998, under Sections 307, 393, 452 IPC, Police Station Nawabganj, District Kanpur Nagar, whereby the accused-opposite party has been acquitted of all the charges framed against him.
2. We have heard Shri Jitendra Kumar Jaiswal, learned AGA for the State/appellant and perused the trial court record.
3. The prosecution story, in nutshell, as alleged in the F.I.R. lodged by the first informant, is that on 5.7.1998 at about 9:30 p.m while the first informant was at his house, two persons, whom he was not acquainted, reached his house. The said person was having a paper in his hands in which his name and address of his chamber was scribed, who stated, that they have come from Allahabad in respect of a case and started asking for a glass of water to drink. Leaving them in the Varandah, he went inside to bring water. It is further alleged that then, the two tried to barge in his house. However, his father Harish chandra asked them not to enter in the house, even then they forcibly tried to enter in the house and in the meantime, the first informant also came out with a glass of water. Looking to their unnatural conduct and behavior, he alongwith his father tried to apprehend them, then they suddenly brought out their country made pistol and tried to rescue themselves and when the first informant alongwith his father did not release them, then one of the miscreants, with an intention to kill him, fired a shot which hit him on his left arm. Hearing alarm, they made their escape good leaving behind their country made pistols through a Maruti 800 which they had parked few paces ahead of the house. The said miscreants, on being produced could be identified.
4. On the basis of said written report, an F.I.R. was registered vide case crime no. 163 of 1998 under section 307, 393, 452 I.P.C., P.S. Nawabganj, District Kanpur Nagar at 2.00 p.m. After registration of the said F.I.R. against unknown persons, its corresponding G.D. No. 45 was drawn which has been proved and marked as Ex. Ka.4. Thereafter the investigation was handed over to S.I. Jaihind Rawat who took over the investigation and the victim was medically examined by P.W.2, Dr. R.K. Singh who prepared the injury report and proved the same as Ex. Ka. 2.
5. The Investigating Officer thereafter recorded the statements of the relevant witnesses and after concluding the investigation submitted the charge sheet against accused/ opposite party under section 307, 393 and 452 I.P.C. before the learned Magistrate. Learned Magistrate took cognizance on the said charge sheet, however, since the case was exclusively triable by the Court of Sessions committed it to the Session Court where it was registered vide S.T. No. 301 of 2018 (State Vs. Mohd Sharik Abbasi) from where it was transferred to the court of Additional Sessions Court No. 17, Kanpur Nagar. The trial court thereafter on 9.8.2018 has framed the charges against the opposite party under section 307 read with section 34 I.P.C., 393, and 452 I.P.C. The said charges were read over and explained to the accused-opposite party, who abjured the said charges, pleaded not guilty and insisted to be tried.
6. The prosecution, in order to prove the guilt against the accused-opposite party, produced as many as seven witnesses. In addition to it, the prosecution also produced number of documents, which were duly exhibited and proved.
7. After conclusion of the prosecution evidence, incriminating evidence and circumstances were put to the accused-opposite party in his statement under Section 313 Cr.P.C. The accused-opposite party alleged the prosecution evidence to be false and fabricated and stated to have been falsely implicated by the police, just to show their good work. However, the opposite party did not produce any evidence in his defence.
8. The learned trial court after thrashing the evidence and critically analysing it, acquitted the accused-opposite party from all the charges framed against him and he was set at liberty vide impugned judgment and order dated 19.10.2022.
9. Aggrieved by the said judgment and order, the instant Government Appeal under Section 378 (3) Cr.P.C. on behalf of the State/appellant has been preferred, along with an application for leave to appeal.
10. Learned State Counsel relying upon the prosecution witnesses has submitted that the trial court has failed to appreciate the evidence in its true perspective and acquitted the accused-opposite party by wrong appreciation of the evidence available on record. He has further submitted that the findings recorded by the trial court in the impugned judgment and order are perverse, illegal and bad in law warranting interference by this Court.
11. Since this appeal is 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 and approach to be adopted while dealing with an appeal against acquittal.
12. In Jafarudheen and others vs. State of Kerala, 2022 SCC Online SC 495, reiterating the principle on the subject the Hon'ble Apex Court reminded to the Courts as extracted below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.P.C, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
13. In Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka, (2022) 12 SCC 619, the Hon'ble Apex Court held as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
14. In Atley v. State of U.P., 1955 Cri. LJ 1653, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same.
15. The Hon'ble Apex Court in the case of Bannareddy v. State of Karnataka, (2018) 5 SCC 790, has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and held as under:
"26. 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".
16. In Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, the Hon'ble Apex Court observed vis-a-vis the powers of an appellate court while dealing with a judgment of acquittal and held as under :
"7. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
17. In the light of the submissions made by learned counsel for both the sides, we have carefully gone through the evidence available on record, its analysis and appreciation thereof and conclusion arrived at by the trial court in the impugned judgment and order dated 19.10.2022.
18. When we go through the evidence adduced by the prosecution in the instant case, we find that P.W.1 who is the injured witness though has supported the prosecution story but has stated that both the miscreants leaving behind their country made pistols had made their escape good, however, both the said miscreants has not been put for identification. P.W.1, however, in his cross examination further stated that the police though is shown to have recovered the country made pistols and the cartridges, however, the same has not been recovered in his presence and the P.W.1 in his cross examination has refused to identify the alleged assailants.
19. P.W.2, Dr. R.K. Singh though in his testimony has corroborated the injury, however, has stated that by the said injury, there was no possibility of life being in danger.
20. P.W.3, Jagdish Narayan, has been produced as witness, however, he has not supported the prosecution story and has been declared hostile. He has not given any description of the incident in the cross examination. He has further stated that the police has not recorded his statement. This witness refused to identified his signature on the recovery memos. The said witness also denied the presence of assailants at the place of incident and refused to identify the accused persons. P.W.4 Head Constable Ram Babu Gautam is merely a formal witness.
21. P.W. 5 Dr. N.C. Yadav has been produced to prove the injury report prepared by medical officer Dr. A.P. Bajpai. P.W. 6, Harish Chand Agrawal is father of the victim and is said to be present at the place of incident. He in his testimony has categorically stated, that who out of two fired, is not known to him. He further stated that one shot was fired, but who fired the shot is not known. He further stated that none of the assailants tried to loot any thing from his son, nor looted any money. Contrary to the statement of his son, P.W.1 in his testimony stated that the assailants did not made any attempt to enter in the house, nor he stated that he alongwith his son tried to apprehend the assailants. He further stated that the assailants whom he identified, but their name was not known to him.
22. Thus, from the entire testimony of the prosecution witnesses, we find that neither the first informant nor his father Harish Chand Agrawal, (P.W. 6) had earlier identified the accused. Thus, it is evident that P.W. 6, Harish Chand has not identified the opposite party as an accused in the instant case. The test identification report has also not been produced in the court which further renders the identification proceeding highly doubtful.
23. The medical officer in his testimony has stated that the cartridge which was removed from the body of the victim was sealed by him, but the investigating officer has not produced any evidence to establish the fact that the said cartridge was produced in the court nor got identified.
24. Thus, from the entire evidence, we find that the factum of forcibly entering in the house by the assailants has not been proved at all. As per the testimony of P.W. 6, Harish Chandra Agrawal, assailants had not looted any article from him or his son, as such, no offence under section 393 I.P.C. is made out against the assailants. So far as offence under section 307 I.P.C. is concerned, though it is alleged that the fire shot by one of the assailants hit the victim on his arm but the said cartridge has neither been produced in the court, nor it has been stated by the doctor in his testimony that the said injury was dangerous to life. Even country made pistol has not been sent for Forensic examination, has been produced in the court.
25. From the testimony of the witnesses of fact though it is stated that one shot was fired by the assailants, however, who fired the shot has not been proved, Even, the recovery of country made pistol has not been proved. Thus, from the said evidence, it is evident that the prosecution has also failed to prove the charge under section 307 I.P.C. against the assailants. Thus, we find that the trial court has proceeded to scrutinise the evidence on record to prove the prosecution story, however, the prosecution has miserably failed to prove any charge against the accused/ opposite party.
26. In view of the aforesaid discussions, we are of the view that the learned trial Court has given logical and plausible findings in the impugned judgment and has rightly concluded that the prosecution has miserably failed to prove its case beyond reasonable doubt. The judgment and order of the trial court under judicious scrutiny is just and proper and carries no perversity therein, hence, it does not warrant any interference by this Court. The reasoning adopted by the learned Trial Judge is based upon proper application of judicial mind. No illegality or infirmity is found in the impugned judgment and order and it needs no interference by this Court.
27. In view of the foregoing discussion, we are of the opinion that the application for leave to appeal, filed by the State, has no force and it is, accordingly, dismissed. Consequent thereto, the instant Government Appeal also stands dismissed.
28. 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 :- 04.03.2025
R
