Dismissed

State of U.P. v. Pramod Kumar and 7 Others

Allahabad HC20 Jul 2018GOVA/435/2018

Case brief

AI extract

What is this about?

The High Court rejected the State’s appeal against acquittal. Finding no perversity in the trial court's findings, it held the prosecution failed to prove guilt beyond reasonable doubt. The Court applied the principle that acquittals stand if views are reasonably possible, denying leave to appeal and dismissing the challenge.

What the court decided

AI extract

State of U.P. Vs Pramod Kumar and 7 Others — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 51

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Case :- GOVERNMENT APPEAL No. - 435 of 2018 Appellant :- State Of U.P. Respondent :- Pramod Kumar And 7 Others Counsel for Appellant :- G.A.

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Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.

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Heard Shri Rajesh Mishra, learned AGA on the application seeking leave to appeal against the judgment and order dated 05.12.2017 by means of which all the accused – respondents have been acquitted for the offence punishable under sections 147, 308/149, 323/149, 324/149, 325/149, 326/149 & 506 IPC and under sections 148, 308/149, 323/149, 324/149, 325/149, 326/149 & 506 IPC.

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Learned A.G.A. has strongly pressed the application with the contention that the prosecution evidence has not been appreciated by the court concerned in its correct perspective. He has submitted that the finding of acquittal recorded by learned trial judge is against the evidence on record. He next submitted that the learned trial judge has committed a patent error of law and ignored the material evidence on record while holding that the prosecution had failed to prove the charge against the accused respondents beyond the reasonable doubt.

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We have perused the impugned judgment. Perusal of the judgment dated 05.12.2017 shows that the concerned court has recorded categorical findings after perusing the entire evidence on record. Most relevant part of the judgment is being extracted herein below:

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(a)The prosecution story also becomes doubtful because all the prosecution witnesses of this case in their statements u/s 200 and 202 Cr.P.C. do not state that due to Dashahara festival, arms were to be worshiped in the house of Suraj and when accused persons of this case entered into the house of Suraj armed with deadly weapons, Balwant opened fire with licensee gun, which hit Deep Kumar. It is also pertinent to mention here that informant of this prosecution case is Abhimanu P.W.1. This witness admits in regard to this occurrence, which is alleged to take place in the house of Suraj, Kamlesh had lodged F.I.R. and in that case final report was filed by the police. What was the fate of that final report in that case, he is not aware. After two months from the date of occurrence he filed complaint alleging the facts and in the complaint, itself informant Abhimanu has not mentioned that when accused persons entered in the house of Suraj, Balwant had opened fire with licence gun, which hit Deep Kumar, who consequently died. There is no uniformity in the allegations made in the complaint, statements given by the complainant and witnesses u/ss 200 and 202 Cr.P.C. given before the Magistrate and in the statements given by the witnesses during trail

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before this court.

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(b) As such injuries sustained by the injured of this prosecution case were caused in right ful exercise of private defence of the injured persons of cross case because there was no occasion to resort to be authority at that time there was reasonable apprehension of causing death and grievous hurt as one of them also succumbed due, on their vital part like head.

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(c) From the perusal of record, it is found that occurrence is dated is dated 17.10.2010 and this complaint was filed on 15.2.2011. Form the statement of P.W.1 Abhimanu it is shown that Smt. Kamlesh w/o Suraj had moved application u/s 156(3) Cr.P.C., which was registered at case crime and the police after investigation filed final report in said case. After final report, what was the fate of said final report, nothing is on record. Later on after tow months complainant Abhimanu filed this complainant before the Magistrate with different allegations. As such apparently there is delay in filing this complaint and there is no cogent explanation of such delay. This aspect also creates doubt in prosecution case.

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As such from the evidence adduced on behalf of prosecution, the prosecution has failed to prove its case beyond reasonable doubt and thus the accused persons Pramod Kumar, Anit Kumar, Ashok, Basheshawar, Kalu, Gajendra Sushil and Anil have been rightly acquitted.

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Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:

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Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: "The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against

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the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.

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It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [ Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94 ].

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Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences 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. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.

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Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal.

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l No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.

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Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.

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It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same

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shall not be interfered with.

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After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.

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No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.

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Copy of the order be certified to the court concerned for consequential follow up action.

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Order Date :- 20.7.2018 A.N. Mishra

State of U.P. v. Pramod Kumar and 7 Others

Case brief

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State of U.P. v. Pramod Kumar and 7 Others

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