Uttarakhand High Court
State Of Uttarakhand vs Attaurahaman & Others on 6 June, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No.234 of 2007
State of Uttarakhand .........Appellant
Vs.
Attaurahaman & others ........Respondents
Present:-
Mr. K.S. Bora, learned Deputy Advocate General along with Mr. S.C.
Dumka, learned A.G.A. for the State/appellant.
Mr. Mohd. Safdar, learned counsel for the respondents.
Hon'ble Pankaj Purohit, J. (Oral)
This appeal preferred by the State under Section 378 (3)
of the Code of Criminal Procedure, 1973 (hereinafter referred to be as
"the Cr.P.C") is directed against the judgment and order dated
22.03.2007, passed by Additional Sessions Judge/2nd F.T.C. Haridwar
in Sessions Trial No.173 of 2002, State vs. Attaurahaman & others,
whereby the said court has acquitted the respondents-accused of the
charge of offence punishable under Section 323/34, 324/34, 325/34,
504 & 506 IPC along with Section 3(1)(X) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to be as "the SC/ST Act").
2. The genesis of the prosecution case is that the alleged
occurrence took place on 29.10.2001 at about 8:30 p.m. It was alleged
in the FIR that the father of informant, namely, Sukhlal was going to
answer a call of nature towards a Tube-well. While going, informant's
father saw the respondents-accused being armed with weapons viz.
accused-Attaurahaman was armed with a country-made pistol,
accused-Kaalu was holding a palkati (a sharp edged weapon) in his
hand, accused-Anis was holding a baton and a knife while one other
person holding iron rod in his hand and they were tempering with a
transformer. When the father of the informant checked the respondents
from doing so, they, with a common intention, assaulted the father of
informant with the weapons held by them in their hands. On hearing
the sound of fire-shot and commotion, people of village came on the
spot, who too sustained injuries and an oral intimidation of caste
indicative words that they too would not be left alive and accordingly
assaulted them with the intention to kill. Then, some other people of
village, namely, Shyam Lal, Kanvar and Dharamveer and others came
on the spot, who saved the informant and other persons from the
clutches of accused. The informant took his father and injured-Raju to
the Government Hospital, Roorkee where they were medically
examined. With these facts, the first information report was lodged on
30.10.2001 at Police Station Gangnahar, Roorkee.
3. On the basis of aforesaid information, the case was
registered against the accused persons on 30.10.2001 at 00:15 hours
under the relevant sections of IPC as also under the SC & ST Act. The
matter was investigated. The Investigating Officer during investigation
converted the case from Section 307 IPC to that of Sections 324 & 325
IPC and accordingly, he submitted a charge-sheet in the court against
the accused persons. The charges were framed accordingly. As many
as nine witnesses were examined on behalf of the prosecution.
Thereafter, the statements of accused under Section 313 of Cr.P.C.
were recorded. In defence, they produced three witnesses. The trial
court by way of impugned judgment has recorded the findings of
acquittal qua the respondents-accused. Hence, the State has come up in
appeal before this Court challenging the judgment of acquittal.
4. I have heard learned counsel for the parties and carefully
gone through the entire material available on record.
5. At this stage, it needs to be mentioned that the trial court
passed an elaborate judgment for recording the findings of acquittal in
respect of accused. The reasons assigned by the court below for
passing such judgment are given hereinbelow:-
(a) This occurrence is in the last of October month which too in the
night hours at 08:30 p.m. It is not the case of the prosecution that it
was a moonlit night. On the basis of occurrence and from the evidence
so produced, it is not reflected that there was any source of light
available on the spot. On the date of occurrence, no person used any
source of light in order to identify each other either by torch, matchbox
or fire. One person could not be identified as mentioned in the first
information report, whereas how remaining three accused could be
identified in a pitch dark night is not proved by the prosecution,
particularly, when the accused were the residents of another place.
(b) In the first information report, the date and time of occurrence
should be mentioned which also needs to be corroborated with
available evidence. However, in this matter, this fact could not be
proved by the prosecution beyond all reasonable doubt. Informant-
Mukesh in his evidence states that he lodged the report of occurrence
on the next day at about 5-6 p.m., meaning thereby, he lodged the
report on 30.10.2001 at 5-6 p.m. since the date of occurrence is
mentioned as 29.10.2001 on which date, he came back home at 01:30
a.m. of the night after getting the medical examination of his father. In
the chik FIR, the time of occurrence is shown as 08:30 p.m. that of
29.10.2001 while the time of reporting is mentioned as 00:15 hours of
30.10.2001 which is different from the evidence of reporter. The FIR
is accordingly anti-time and anti-dated. It needs to be mentioned that
the FIR in any case is the foundation of a criminal case and when this
FIR itself becomes doubtful, the entire matter cannot be stated to be
beyond doubt.
(c) The place of occurrence as shown in the site plan is not so
shown by the witnesses in their evidence. This shows that either the
investigation was not properly done or in the alternate the witnesses
are not deposing correctly. None of these conditions is favourable for
prosecution since it caused a dent on the prosecution evidence. PW1,
PW2 & PW5 all three injured mentioned about country-made pistol
being used in the crime while in their statements recorded under
Section 161 Cr.P.C. there is no mentioned about the country-made
pistol by these witnesses. The motive of commission of offence by the
prosecution has not been proved. The transformer which supplies the
electricity in the village of accused and the transformer of village of
informant, both the villages are separate and distinct. Since the
transformers of both the villages are different then what was the
occasion for the accused to do tempering with the transformer
providing electricity in the village of injured-Sukhlal is neither proved
nor does it appear to be reasonable. In this regard three witnesses were
produced on behalf of the defence. DW1-Abid is the Pradhan of
Village who has also stated that the transformers of both the villages
are distinct whereas DW2 and DW3 who are the witnesses of the
electricity department have also given their evidence in this regard.
Thus, the prosecution could not prove the motive of the accused
persons to commit the crime. Moreover, the witnesses also deposed
differently whether there was any electricity available on the spot on
the date of occurrence or not.
(e) PW1-Suklal and PW2-Sukhbir are the sons of Balvant. PW6-
Kanvar Pal is the nephew of injured. In this way, PW2 and PW6 are
the interested witnesses whereas the evidence of PW7 shows that he
too was an incidental witness. PW7 has also stated that he is Harijan
by caste.
6. Thus, from the basis of aforesaid analysis, the trial court
reached to the conclusion that no case under the SC/ST Act against the
accused persons was made out nor any crime of abusing or extending
the threat to kill was made out. The charge under the IPC for doing
Marpeet being armed with weapons is also not proved. The offence
under Section 34 IPC was also not made out for the reason that it could
not be clarified by the prosecution that the accused by which of the
respective weapon assaulted the injured. The injured-Sukhlal states to
have suffered fracture on his foot whereas the Doctor who conducted
the medical of injured did not say so. On these bases, the trial court
recorded the finding of acquittal against the accused persons.
7. There is yet another aspect of the matter. The respondents
have been acquitted. In appeal against acquittal it is held by Hon'ble
Apex Court in catena of judgments that the Courts should be slow in
interfering in the judgments of acquittal as the innocence of the
accused is further re-inforced by his acquittal. Unless and until there is
perversity in the judgment of acquittal, the same should not be
interfered with.
8. It is trite law that that while hearing the appeal against
acquittal, the power of reviewing evidence must be exercised with
great care and caution. In order to ensure that the innocents are not
punished, the appellate court should attach due weight to the lower
court's acquittal because the presumption of the innocence is further
strengthened by the acquittal. The appellate court should reverse an
acquittal only when it has "very substantial and compelling reasons". I
am fortified in my view by the judgment of the Hon'ble Apex Court in
case of "Ghurey Lal Vs. State of Uttar Pradesh" reported in (2008)
10 SCC 450. For the sake of convenience, paragraph no.3 of the said
judgment is quoted below:-
" 3. We have endeavoured to set out the guidelines for the
appellate courts in dealing with appeals against acquittal.
An overriding theme emanates from the law on appeals
against acquittals. The appellate court is given wide powers
to review the evidence to come to its own conclusions. But
this power must be exercised with great care and caution. In
order to ensure that the innocents are not punished, the
appellate court should attach due weight to the lower court's
acquittal because the presumption of innocence is further
strengthened by the acquittal. The appellate court should,
therefore, reverse an acquittal only when it has "very
substantial and compelling reasons".
9. The trial court has passed an elaborate judgment for
recording the finding of acquittal and this Court does not want to
reiterate the same for the sake of repetition. Learned State Counsel
could not argue any ground so as to interfere with the well reasoned
judgment passed by the trial court.
10. For the aforesaid reasons and following the dictum of the
Hon'ble Apex Court, I am also of the considered view that no ground
for interference, at all, is made out in this matter, as there is no
illegality and perversity in the impugned judgment and order.
11. The appeal is bereft of merit and the same is accordingly
dismissed.
12. Let the T.C.R. be immediately sent back to the trial court
for consignment.
(Pankaj Purohit, J.)
06.06.2024
AK
