GA/87/2020
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       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


           GOVERNMENT APPEAL No. 87 OF 2020


                        25th FEBRUARY, 2021


 Between:

 State of Uttarakhand.
                                                               ...Appellant

 and


 Sugan Chand @ Sugni.
                                                           ...Respondent

Counsel for the appellant : Mr. Jagjit Singh Virk, learned Deputy Advocate General assisted by Mr. Rakesh Kumar Joshi and Mr. Rohit Dhyani, learned Brief Holders, for the State of Uttarakhand.

Counsel for the respondent : Mr. Pankaj Miglani, learned counsel.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the judgment dated 03.12.2019,

passed by the learned Fourth Additional Sessions Judge,

Hariwdar, in Session Trial No. 189 of 2013, whereby the

learned Trial Court has acquitted the accused, Sugan Chand @ Sugni for offence under Section 302 IPC, the

State has preferred the present appeal before this Court.

2. In a nutshell, the facts of the case are that on

19.08.2005, the complainant Prem Chand (P.W. 1)

lodged a written report at Police Station-Pathri, District

Haridwar, wherein he claimed that his father, Mohan

Singh, as usual was returning back home with the cattle

around 06:30 P.M. At that time, Somnath, S/o Sugan

Chand @ Sugni, and two other persons, were standing

near the farm belonging to the complainant's family.

They surrounded his father, and told him that "he is the

person who has been helping the Police against them".

Therefore, today they will deal with him. These three

persons hit his father on the head with the butt of the

country made pistols. Thereafter, Somnath shot his

father with a country made pistol. Immediately, his

father fell and died. The complainant further claim that

he, Prem Chand and Satish were coming from the weekly

market. The moment they saw the incident, they rushed

to the rescue of his father. Hearing the gunshots, the

villagers also came to the spot. The complainant and his

two other companions shouted for help. The complainant

further claimed that, although, he recognizes Somnath,

he does not know about other two companions of

Somnath. If the other two companions were brought

before him, he would be in a position to identify them.

According to the complainant, the accused persons ran

off in the northerly direction. On the basis of this

complaint, a formal F.I.R, namely F.I.R. No. 63 of 2005

(Ex. Ka. 1), was chalked out for offence under Section

302 IPC. During the course of investigation, the main

accused Somnath, Sugan Chand @ Sugni and Rajkumar

were arrested. Since Somnath was a minor, he was tried

by the Juvenile Justice Board; he was acquitted by

judgment dated 03.06.2017.

3. In order to establish its case, the prosecution

examined eleven witnesses, and submitted eleven

documents. On the other hand, the defense neither

examined any witness, nor submitted any documents.

After going through the evidence produced by the

prosecution, the learned Trial Court acquitted the accused

Sugan Chand @ Sugni by judgment dated 03.12.2019.

Hence, the present appeal by the State before this Court.

4. Mr. Jagjit Singh Virk, the learned Deputy

Advocate General for the State of Uttarakhand, has raised

the following contentions before this Court :-

Firstly, despite the fact that the case is based

on direct evidence, the learned Trial Court has failed to

appreciate the evidence in a proper perspective.

Secondly, Prem Chand (P.W. 1) has clearly

stated that he, Satish Kumar (P.W. 4) and Rajpal (not

examined by the prosecution), were coming from the

weekly market when the incident occurred. He further

stated that the motive for commission of the crime was

that Somnath was of the opinion that the complainant's

father was helping the Police against Somnath's family.

Therefore, although motive is not relevant in a case

based on direct evidence, but nonetheless the

prosecution has established the motive behind the crime.

Thirdly, the prosecution has examined two eye-

witnesses, namely Prem Chand (P.W. 1) and Satish

Kumar (P.W. 4). Both the eye-witnesses have clearly

stated that it is Somnath who had shot the deceased

Mohan Singh, and his other two companions had hit

Mohan Singh on the head with the butt of their country

made pistols.

Fourthly, Dr. Pradeep Kumar (P.W. 8) had

proven the Post-Mortem Report (Ex. Ka. 11). He had

clearly stated that the deceased had suffered a number of

injuries on his head; the deceased had sustained two

firearm injuries, one on the chest, and another on the

stomach. Therefore, the death was a homicidal one.

Subsequently, a country made pistol was also recovered

from Somnath during the course of the investigation.

Therefore, the prosecution had succeeded in establishing

the fact that the respondent-accused Sugan Chand @

Sugni and Rajkumar had committed the murder of Mohan

Singh. However, all these glaring facts have been

ignored by the learned Trial Court. Therefore, the

impugned judgment deserves to be set-aside; the

respondent-accused deserve to be convicted for the

offence under Section 302 IPC.

5. On the other hand, Mr. Pankaj Miglani, the

learned Counsel for the respondent-accused, has raised

the following counter-contentions before this Court:-

Firstly, the scope of interference in an acquittal

order, by the Appellate Court, is extremely narrow. If the

view taken by the learned Trial Court is a reasonable one,

and not a perverse one, then the judgment of acquittal

should not be disturbed lightly by the Appellate Court. It

is only when the learned Trial Court has ignored the

evidence readily available on record, or has mis-

appreciated the evidence, or has taken a view which is

not supported by any evidence, or has misapplied the

law, that a judgment of acquittal can be said to be

perverse. It is only in these circumstances that an

acquittal order should be disturbed.

Secondly, in the present case, the learned Trial

Court has critically analysed the evidence; the learned

Trial Court and has given cogent reasons for disbelieving

the testimonies of the two eye witnesses Prem Chand

(P.W. 1) and Satish Kumar (P.W. 4).

Thirdly, as stated above, Somnath, the main

accused, has already been acquitted by the Juvenile

Justice Board, Haridwar by its judgment dated

03.08.2017. The case of the present respondent-accused

Sugan Chand @ Sugni stands on a better footing than the

case of Somnath. Therefore, there is no perversity, or

illegality in the impugned judgment. Hence, this Court

should not interfere with the acquittal order.

6. Heard the learned counsel for the parties,

perused the impugned judgment, and critically examined

the record.

7. There are certain established principles with

regard to the jurisdiction of the High Court while dealing

with an acquittal order. In the case of Sampat Babso

Kale v. State of Maharashtra [(2019) 4 SCC 739],

the Hon'ble Supreme Court has laid down the principles

with regard to the powers of an appellate Court in an

appeal against an acquittal order. The Hon'ble Supreme

Court observed as under:-

8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415, laid down the following principles: (SCC p. 432, para 42) "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:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) 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.

(3) 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. (4) 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.

(5) 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."

8. In the case of State of Rajasthan v. Naresh

[(2009) 9 SCC 368], the Hon'ble Supreme Court opined

that "an order of acquittal should not be lightly interfered

with even if the court believes that there are some

evidence pointing out the finger towards the accused".

9. These principles have recently been reiterated

by the Hon'ble Supreme Court in the case of Anwar Ali

& another v. State of Himachal Pradesh [(2020) 10

SCC 166]. Therefore, these settled principles of criminal

jurisprudence would have to be kept in mind while

examining the legality or illegality of the impugned

judgment.

10. Prem Chand (P.W. 1), in his examination-in-

chief, states that on 19.08.2005 at around 06-06:30 P.M.

his father was returning with the cattle. When he

reached near his farm, Somnath, along with two other

companions, shot his father. While Somnath shot his

father, the other two persons hit his father with the butt

of the country made pistols. At that time he and Satish

were coming back from the weekly market. He further

admits in his examination-in-chief that the other two

persons, who were with Somnath, were unknown to him.

Subsequently, he was informed that the other two

persons were Sugan Chand @ Sugni (the respondent-

accused) and Rajkumar. He admitted the fact that

Somnath and Sugan Chand @ Sugni are from his village

and Rajkumar is from outside his village. However, in his

cross-examination, he admits that he has lived in his

Village-Dhariwal ever since he was born. He further

admits that Somnath's house is only four-five houses

away from his; he further admits that Somnath is the son

of Sugan Chand @ Sugni. He further admits that Sugan

Chand @ Sugni and Mohan Singh (the deceased and

father of the complainant) are related to each other. Yet,

surprisingly this witness claims that he did not recognize

Sugan Chand @ Sugni, to whom he is not only related,

but who is also his neighbour. Therefore, it is rather

surprising that the complainant claims that Sugan Chand

@ Sugni (the respondent-accused) is a stranger and

unknown to him.

11. A bare perusal of the record clearly reveals that

there are grave contradictions between the testimonies of

the two eye-witnesses, namely Prem Chand (P.W. 1), and

Satish Kumar (P.W. 4). Although both of them claim that

they were returning on a bicycle from the weekly market,

but their description of the incident are contradictory.

While Prem Chand (P.W. 1) would have the Court

believed that at the time of the incident he was only ten-

fifteen steps away from the scene of the crime, that he

could hear the assailant and the deceased, Satish Kumar

(P.W. 4) claims that they were so far away from the

scene of the crime that it took them ten minutes to reach

the scene of the crime. While Prem Chand (P.W. 1)

claims that he saw the accused persons running away

from the scene of the crime, Satish Kumar (P.W. 4)

claims that, by the time they reached the place of the

incident, the assailants had already left.

12. It is these glaring contradictions between the

testimonies of the two eye-witnesses that has led the

learned Trial Court to question the veracity of their

testimonies. If indeed Prem Chand (P.W. 1) was present

at the scene of the crime, if, indeed, he was only ten-

fifteen steps away from the place of the incident, it is

rather surprising that he could not recognize Sugan

Chand @ Sugni (the respondent-accused), who happens

to be both his relative, and his neighbour. Moreover, it is

unclear from the testimonies of the two alleged eye-

witnesses as to how far they were from the scene of the

crime.

13. Furthermore, according to the learned Trial

Court, the place of incident was surrounded by sugarcane

farms, where sugarcane was standing and the sugarcane

was as tall as eight feet. Therefore, it is amply proved

that Prem Chand (P.W. 1) and Satish Kumar (P.W. 4) are

certainly not eye-witnesses of the incident.

14. Considering the fact that there is an animosity

between the family of the respondent-accused, and the

family of the complainant, a distinct possibility does exist

that the complainant has falsely roped not only the

present respondent-accused, Sugan Chand @ Sugni, but

also his son Somnath.

15. The learned Trial Court has also noticed the

fact that, despite of allegation of the prosecution that all

the three assailants were armed with firearm weapons,

namely country made pistols, no country made pistol, or

firearm, has been recovered from the present

respondent-accused. Somnath, the main accused, from

whom a pistol had been recovered, has already been

acquitted by the Juvenile Justice Board. Therefore, the

case of the present respondent-accused stands on a far

better footing than the case of Somnath.

16. For the reasons stated above, this Court does

not find any illegality or perversity in the impugned

judgment. In fact, the impugned judgment has been

passed after critically analysing and assessing the

evidence produced by the prosecution. Since the

prosecution case is replete with gaping holes, the learned

Trial Court was legally justified in acquitting the

respondent-accused.

17. For the reasons stated above, this Court does

not find any merit in the present appeal. It is hereby

dismissed.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 25th February, 2021 Rahul