Dismissed

State of U.P. v. Ram Asrey and 2 Ors.

Allahabad HC9 Dec 2021GOVA/1001276/2003

Case brief

AI extract

What is this about?

State appealed against acquittal of accused in murder and SC/ST Act case. High Court upheld acquittal, finding trial court's view probable due to lack of corroborative evidence and presumption of innocence.

What did the court decide?

Prayer for grant of leave to appeal refused; application and memorandum of appeal dismissed.

What the court decided

State of U.P. Vs Ram Asrey and 2 Ors. — Caste Atrocities | Allahabad HC (2021)

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Chief Justice’s Court Daily Cause List Serial No.33

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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U/s 378 Cr.P.C. No. 1276 of 2003

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State of U.P. ...Appellant/Applicant Through: Ms. Smiti Sahay, Additional Government Advocate

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vs.

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Ram Asrey and others ........Opposite parties

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CORAM : HON'BLE RAJESH BINDAL,CHIEF JUSTICE HON'BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI, J.

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The present appeal with Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State Government - appellant against judgment and order dated 11.09.2002, passed by 2^nd Additional Session Judge, Raebareli in S.T. No.166 of 1994 (State Vs. Ram Asrey and another) and S.T. No.167 of 1994 (State Vs. Chotey @ Indra Narayan), arising out of Case Crime No.33/1994, under Sections 302/34 IPC, Police Station Salon, District Raebareli. By the impugned judgment, the trial court has acquitted the accused-respondents Ram Asrey, Chakkan and Chotey @ Indra Narayan from the charges under Sections 302/34 IPC and Section 3 (2) (5) of SC/ST Act.

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2 U/s 378 Cr.P.C. No. -1276 of 2003

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The brief facts of the case, according to the F.I.R., are that informant Hoob Lal gave Tehrir (written application) to Police Station concerned that on 9/10.03.1994 at about 11.00 P.M. the accused persons Ram Asrey, Chotey and Chakkan came and started beating his father Ausan by lathi, danda and knife. When the complainant opposed, all the accused persons pulled him and threw him at some distance. He recognized them in the light of lamp. On his shouting, Dularey, Ram Sajiwan and others who were the residents of the same Village came to their rescue with lathi and danda. Having seen the village people, the accused persons ran away. The father of the complainant succumbed to the injuries inflicted on him by the accused. The dead body of the deceased was laying at the door of the informant. There was enmity between the informant and accused persons regarding irrigation of fields from canal water.

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On the Tehrir of informant, a case was registered against the accused persons under Sections 302/34 IPC and Section 3 (2)(V) of SC/ ST Act vide Crime No.33/1994. After lodging the F.I.R., the Investigating Officer visited the place of occurrence, prepared site map, recorded statement of the witnesses and after concluding the investigation, submitted charge sheet against accused persons. Thereafter, the learned Magistrate took cognizance and committed the case to the Court of Session. Learned Additional Session Judge framed the charges under Sections 302/34 IPC & Section 3 (2)(V) of SC/ST Act against the accused persons. The accused persons denied the charges and claimed to be tried.

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On behalf of the prosecution, the witnesses PW 1 Hoob Lal, PW 2 Dr. M.K. Agarwal, PW 3 Dulare, PW 4 Smt. Keshkali, PW 5 Inspector Shihor Ram, PW 6 Incharge Inspector Aditya Prakash were examined. After the evidence of prosecution, the evidence of accused persons was recorded under Section 313 Cr.P.C. The accused persons submitted that false case was registered against them due to enmity of Gram Pradhan election.

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3 U/s 378 Cr.P.C. No. -1276 of 2003

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Learned trial court heard the arguments of both the sides and after appreciating the evidence, in the light of facts and circumstances of the case, acquitted the accused persons from the charges of Sections 302/34 IPC and Section 3 (2)(V) of SC/ST Act, against which present appeal with application to leave, has been filed by the State Government.

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Learned A.G.A., pressing the application under Section 378 (3) Cr.P.C., has submitted that the trial court has wrongly acquitted the accused persons. The trial court did not consider the settled principles of law, and could not assess and appreciate the evidence in accordance with law. Prosecution had succeeded in proving the charges against the accused persons but the trial court did not consider it and acquitted them, therefore, the impugned judgment is liable to be set aside and the accused persons are liable to be convicted. Hence the application of State under Section 378 (3) Cr.P.C. be allowed.

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Heard Smt. Smiti Sahay, learned Additional Government Advocate on the application under Section 378 (3) Cr.P.C. and perused the record.

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According to the evidence on record, witness PW 1 Hoob Lal has stated in his statement that accused persons Ram Asrey armed with knife and Chotey and Chakkan armed with lathies entered into his house and attacked his father. At that time, he was awake and Chimney (lamp) was lighting. When he objected to, the accused persons pulled and threw him away at a distance of 7-8 feet but no injury has been found on the body of the informant. Further, this witness has stated in his statement that accused have not attacked on him. Learned trial court held that this statement of witness is found to be improbable, as when accused persons attacked his father and informant objected the same, why the accused did not attack the informant. It has not been explained by the witness. The witness PW 1 has also stated that the accused persons pressed the neck and chest of deceased by lathies but in the post mortem report, no such injury has been found either on the neck or on the chest

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4 U/s 378 Cr.P.C. No. -1276 of 2003

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of the deceased. Informant has mentioned that the dead body of the deceased was laying on the door of his house whereas he accepted in his evidence that at the time of occurrence his father was sleeping on his cot and his dead body was also found on the cot. This has also been found that other witnesses Smt. Keshkali who was the wife of PW 1 Hoob Lal who was present at that time and witness PW 3 Dulare who had reached on spot after hearing the call for help, had not supported the prosecution case in their evidence and were declared hostile. Accordingly, the evidence of PW 1 becomes sole evidence of prosecution.

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The trial court held that the statement of PW 1 does not inspire confidence. It was not proved that he was the eye witness of the occurrence. Therefore, in the absence of any cogent and corroborative evidence, the trial court acquitted the accused persons from the charges of Sections 302/34 IPC and Section 3 (2) (V) of SC/ST Act. The view taken by the learned trial court is probable and is not perverse.

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The judgment of lower court is well discussed and founded on evidence available on record. No illegality or irregularity is found in the impugned judgment. 11. A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. So very strong and cogent reasons must exist in interfering the judgment of acquittal. When two views are reasonably possible, the High Court ought not interfere with the order of acquittal. The impugned judgment under appeal has to be considered from the point of view whether the view taken by the trial court was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits.

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Having considered the aforesaid failure of the prosecution to prove the guilt of accused, as noted by the trial court, we are of the considered view that the conclusion of trial court was probable and logical, which is based upon valid reasons. The judgment of the trial court cannot be said to be illegal, illogical and improbable. There is

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5 U/s 378 Cr.P.C. No. -1276 of 2003

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absolutely no hope of success in this appeal and, accordingly, no interference is called for.

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Hence, the prayer for grant of leave to appeal is hereby refused and the application is dismissed.

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Since the application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive and stands dismissed.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 9, 2021 ML/Kuldeep

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Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

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Digitally signed by MUNNA LAL Date: 2022.02.24 14:56:47 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Ram Asrey and 2 Ors.

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State of U.P. v. Ram Asrey and 2 Ors.

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