Dismissed

State of U.P. v. Dharmendra and 4 Ors.

Allahabad HC22 Jan 2020GOVA/505/2019

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the acquittal of five accused persons charged with murder. Upholding the trial court's view that evidence relied solely on last-seen status was weak and inconclusive, the court held the acquittal was justified and no substantial reasons existed to interfere.

What did the court decide?

The appeal filed by the State against the acquittal of the respondents was dismissed at the admission stage.

State of U.P. Vs Dharmendra and 4 Ors. — Murder and Culpable Homicide | Allahabad HC (2020)

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Court No. 48

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Government Appeal No. 505 of 2019

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State of U.P. ---Appellant Vs. 1. Dharmendra 2. Pankaj 3. Dharamveer 4. Dharampal 5. Tezvir @ Diska ---Respondents

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For Appellant : Sri Om Prakash Mishra, A.G.A. 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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(22.01.2020)

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Heard on admission.

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Challenge in this Government Appeal is to the judgment and order dated 07.08.2019 passed by Additional Sessions Judge, Anoop Shahar, District Bulandshahar in Sessions Trial No. 540 of 2016 (State vs. Dharmendra and Ors.) acquitting the respondents of the offence under Sections 147, 302/149, 323/149 of IPC.

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Brief facts of the case are that on 18.04.2016 at about 7.30 p.m., accused persons had gone to call deceased Laxminarayan from his house for loading and transporting wheat straw. Initially, deceased had refused to accompany them, but when bottle of liquor was shown

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to him, he agreed to accompany the accused persons. It is said that deceased did not return and when he was searched, on the next day, his dead body was found outside the village. On the basis of written report Ex.Ka.1, lodged by Bhanu Pratap Singh (PW-1), FIR Ex.Ka.9 was registered against the accused persons under Sections 147, 323 and 302 of IPC. After investigation, prosecution has come up with a story that the deceased was last seen by Arjun Singh (PW-3) in the company of the accused persons and then his dead body was found. Further, it has come that Bhanu Pratap Singh (PW-1) and Manoj Kumar (PW-2) saw the accused persons taking away the deceased.

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While framing charge, the trial Judge has framed charge against them under Sections 147, 323/149 and 302/149 of IPC.

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So as to hold accused-respondents guilty, prosecution has examined as many as ten witnesses, whereas one defence witness has also been examined. Statements of the accused-respondents 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 respondents granting them benefit of doubt. It has been held by the court that the evidence of last seen is not conclusive and clinching and, therefore, the accused persons deserves to be acquitted. It is this acquittal order, which has been assailed by the State in this appeal.

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Learned counsel for the appellant-State submits that the trial court has erred in law in acquitting the respondents.

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

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Bhanu Pratap Singh (PW-1) and Manoj Kumar (PW-2) have stated that when the deceased was called by the accused persons, he initially refused to accompanying them, but later when a bottle of liquor was shown to him, he agreed to perform the work of the accused persons. They further stated that in the evening the deceased did not return and on the next day, his dead body was found.

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Arjun Singh (PW-3) is the main witness of prosecution, has

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stated that he saw the deceased in the company of the accused persons in the night at 9.00 p.m. along with eight other villagers and then on the next day, his dead body was found outside the village.

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Undisputedly, nothing incriminating has been seized from the possession of the accused persons, moreover the seizure has not been found reliable as no independent witness has been examined. The court below while appreciating the evidence has recorded a finding that the evidence of last seen, which is weak in nature, is not conclusive and clinching and, therefore, the respondents cannot be convicted merely on the basis of the said evidence. The recovery of certain articles have not been found reliable by the court below.

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Considering all these aspects of the case, the trial court has granted benefit of doubt to the accused persons while acquitting them. The view taken by the court below is one of the possible and plausible view.

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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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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 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:

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"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.

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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

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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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36. 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) "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.

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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 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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Order Date :- 22.01.2020 Ajeet/SK

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

State of U.P. v. Dharmendra and 4 Ors.

Case brief

What is this about?

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State of U.P. v. Dharmendra and 4 Ors.

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