Dismissed

State of U.P. v. Parush Ram @ Bhura and Anr.

Allahabad HC29 Jan 2020GOVA/328/2019

Case brief

AI extract

What is this about?

In this appeal against acquittal, the High Court dismissed the State's challenge to the trial court's order. The Court held that the trial judge was justified in acquitting the accused due to lack of eyewitnesses, failure to prove motive, and absence of incriminating evidence, deeming the acquittal a reasonable conclusion.

What did the court decide?

Appeal dismissed at the admission stage; leave to appeal refused.

State of U.P. Vs Parush Ram @ Bhura and Anr. — Murder and Culpable Homicide | Allahabad HC (2020)

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Reserved on 21.1.2020 Delivered on 29.1.2020

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GOVERNMENT APPEAL No. 328 of 2019

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State of Uttar Pradesh 1. Parush Ram @ Bhura 2. Smt. Raj Kumari	Appellant Vs Respondents
_____________________________ For Appellant :	_______________________ Sri O.P. Mishra, AGA
For Respondents : _____________________________	None ___________________________

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Hon'ble Pritinker Diwaker, J. Hon'ble Shekhar Kumar Yadav, J.

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Per: Pritinker Diwaker, J.

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Heard on admission.

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Challenge in this Government Appeal is to the impugned judgment and order dated 10.4.2019 passed by Second Additional Sessions Judge, Pilibhit in Sessions Trial No.261 of 2017 (State of U.P. vs. Parush Ram @ Bhura and another), acquitting the accused-respondents of the offences under Sections 302/34, 201 of IPC.

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In the present case, name of the deceased is Gaurang Jaiswal son of informant Ajay Kumar (PW-1). On 7.8.2017, deceased went missing from his house, he was searched and at about 9.30 p.m., accused Smt. Raj Kumari called the deceased for having some compromise in the previous quarrel with accused no.1 Parush Ram. Later, accused No.2 Smt. Raj Kumari informed the informant that it is accused No.1 who had taken the deceased along with him. On 09.08.2017, a photograph of the deceased was published in the newspaper and seeing it, complainant came to know about the death of his son. He

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immediately went to mortuary, took the dead body of his son and performed the rituals. Further case of the prosecution is that deceased Gaurang was having illicit relation with accused No.2 Smt. Raj Kumari and that is why, he was eliminated by the accused persons.

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While framing charge, the trial Judge has framed charge against the accused persons under Sections 302/34, 201 of IPC.

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So as to hold accused-persons guilty, prosecution has examined as many as eight witnesses. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.

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By the impugned judgment, the trial Judge has acquitted the accusedrespondents of all the offences. Hence, the present appeal by the State, assailing the acquittal of accused persons.

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Counsel for the appellant submits that the trial Judge has erred in law in acquitting the accused-respondents.

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We have heard learned counsel for the appellant and perused the record.

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Admittedly, there is no eyewitness account to the incident and the entire prosecution case is based upon circumstantial evidence. The so-called witnesses of last seen, namely; Nitin (PW-3) and Rajeev Kumar (PW-4) have not been found reliable by the court below on the ground that they were relatives of Ajay Kumar (PW-1). Likewise, no other incriminating evidence has been found against the accused persons. Even motive has not been proved by the prosecution as required under the law. Though as per prosecution case, some telephonic conversation has been made by the accused persons but the call details have not been proved by the prosecution as per requirement of law. Even homicidal death of the deceased has not been found to be proved by the prosecution.

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Considering all the aspects of the case, the trial Judge has come to the

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conclusion that the prosecution has failed to prove its case beyond reasonable doubt and has, accordingly, acquitted the accused-respondents.

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The view taken by the court below is one of the possible view, and it cannot be said to be perverse.

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While 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 reasonable 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:

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"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 evnidence 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."

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12. In Sudershan Kumar v. State of Himachal , reported in (2014) 15 SCC 666, the Hon'ble Supreme Court observed thus;-

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"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

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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.

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In para 37, propositions laid down in an earlier case are taken note of as under: -

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"37. In Chandrappa v. State of Karnataka , this Court held: ( SCC p. 432 para 42):

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

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(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.

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(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.

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(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.

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(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."

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32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:

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"39. The following principles emerge from the cases above:

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1. The 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.

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2. The 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.

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

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

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5. If 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."

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In Dilawar Singh v. State of Haryana , (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :

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"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.

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37. In 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)

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"42....(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.

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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.

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(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."

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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."

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Considering the above legal position and the factual aspects of the case, we are of the view that the trial Judge was fully justified in acquitting the accused-respondents.

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Taking all the circumstances as it is, leave as prayed for by the State is refused. Hence the appeal is dismissed at the admission stage itself.

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Dated: 29.1.2020 RKK/- C.Mani

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(Shekhar Kumar Yadav, J) (Pritinker Diwaker, J)

State of U.P. v. Parush Ram @ Bhura and Anr.

Case brief

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State of U.P. v. Parush Ram @ Bhura and Anr.

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