State of U.P v. Maiku and Others

Chief Justice's Court Government Appeal No. 856 of 1982 State of U.P. ---- Appellant Vs

¶1Maiku (deceased)

¶2Lala Ram

¶3Asharam (deceased)

¶4Smt. Ramsri (deceased) ---- Respondents

For Appellant : Smt. Smriti Sahay, AGA For Respondents : None Hon'ble Pritinker Diwaker, CJ. Hon'ble Rajan Roy, J. Per: Pritinker Diwaker, CJ.

¶1Challenge in the present Government Appeal is to the impugned judgment and order dated 19.03.1982 passed by V Additional District & Sessions Judge, Hardoi in Sessions Trial No. A777 of 1980, acquitting the respondents of the offences under Sections 302/34 & 323/34 of IPC.

¶2Brief facts of the case are that on 15.09.1978 at about 04.00 P.M., accused appellants caused club blow to Imami as a result of which, he died on 18.09.1978. After investigation, charge sheet was filed and as many as four accused persons namely Maiku, Lala Ram, Asharam & Smt. Ramsri were tried before the trial court.

¶3While framing charge, the trial judge has framed charge against the accused persons under Sections 302/34 & 323/34 of IPC.

¶4The cause of death of the deceased Imami was due to shock and hemorrhage as a result of following ante mortem injuries: "Contusion 6.8cm x 2.8 cm on the right side of skull obliquely placed 9 cm above right ear and 11 cm from right eye brow in the center of this injury, there was scabbed abrasion of size 1cm x 1 cm."

¶5So as to hold accused respondents guilty, prosecution has examined eight witnesses out of which Ramjani (PW-1) & Abid Ali (PW-2) were the witnesses of fact, who have supported the prosecution case but there appears to be contradictions in the statement of these two witnesses. Statement of accused respondents were also recorded u/s 313 Cr.P.C. in which they pleaded their innocence and false implication.

¶6By the impugned judgement, after due appreciation of facts and evidence on record, the trial court has acquitted all the accused persons. Hence the present appeal by the State, assailing the acquittal of the accused persons.

¶7Learned counsel for the appellant informs this Court that during the pendency of the appeal, Respondent No. 1 Maiku, Respondent No. 3 Asharam and Respondent No. 4 Ramsari have expired and the surviving respondent Lala Ram is more than 70 years of age.

¶8We have heard learned counsel for the parties and perused the record.

¶9PW-1 Ramjani, is the brother of the deceased. He has stated that on the date of occurrence, he was sitting in his house along with the deceased Imami. There were some dispute regarding boundary of the field between the two families, resulting some altercation between them. He states that both the parties have abused each other and thereafter, the deceased was done to death by the accused persons by causing club injury. The role of causing main injury to the deceased has been assigned to deceased-accused Maiku whereas the role of causing injury to informant Ramjani (PW-1) has been assigned to surviving accused Lala Ram. In the cross-examination, there is material contradiction in the statement of this witness.

¶10The other witness to the incident is Abid Ali (PW-2), a resident of the same village, has stated that the surviving accused Lala Ram has caused injuries to Ramjani and deceased-accused Maiku.

¶11While appreciating the evidence, the court below has found that the evidence of two witnesses is not trustworthy and after granting benefit of doubt to all the accused persons has acquitted them.

¶12Considering the facts and circumstances of the case, in particular the fact that evidence has been duly considered by the court below, we are of the view that the view taken by the trial court is one of the possible view and it has rightly acquitted the accused respondents.

¶13While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views of the evidence are reasonably possible, one supporting the acquittal and other indicating conviction, the High Court should not, in such a situation, reverse the order of acquittal recorded by the trial Court. In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under: "In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."

¶14In Sudershan Kumar v. State of Himachal reported in

(2014) 15 SCC 666 the Hon'ble Supreme Court observed thus;- "31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: - "37. In Chandrappa v. State of Karnataka, this Court held: ( SCC p. 432 para 42), (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 emphasis 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."

¶32Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder: "39. The following principles emerge from the cases above:

¶1The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

¶2The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

¶3The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanor of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

¶4The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

¶5If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."

¶15In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under: "36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.

¶36In Chandrappa v. State of Karnataka, the scope of power of appellate court dealing with an appeal against acquittal has been considered and this Court held as under: (SCC p.432 para 42) "42....(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." Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan v. Shera Ram."

¶16Considering the above legal position and the factual aspects of the case, we find no infirmity in the impugned judgement and once a view has been taken by the trial court, we are not inclined to interfere with the same. Moreover, out of four accused persons, three have already expired and the sole surviving respondent Lala Ram is now 70 years of age. The incident occurred way back in the year 1978, therefore, also sending the accused respondent Lala Ram in jail may not serve any purpose of the State.

¶17The appeal is, accordingly, dismissed

¶18Sri Saurabh Singh, (AOR-B/S 2742/22, Mb. No. 8601224552), learned Amicus has duly assisted the Court and, therefore, he is entitled to get Rs. 5000/- towards remuneration from High Court Legal Service Authority. Date: 18.05.2023 SK (Rajan Roy,J) (Pritinker Diwaker, CJ.) High Court of Judicature at Allahabad, Lucknow Bench