Dismissed

State of U.P. v. Ahibaran and 3 Others

Allahabad HC8 Dec 2021GOVA/1002375/2006

Case brief

AI extract

What is this about?

In an appeal under Section 378 Cr.P.C. challenging an acquittal in a murder case, the High Court examined prosecution evidence, noting significant deficiencies such as missing accused names in the FIR and lack of physical proof. The court held the acquittal was based on a probable view and dismissed the appeal against acquittal.

What did the court decide?

Leave to appeal refused and application rejected; memorandum of appeal dismissed.

State of U.P. Vs Ahibaran and 3 Others — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.2

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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. 2375 of 2006 State of U.P. ...Applicant

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Through: Ms. Smt. Smiti Sahay, Additional Government Advocate

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vs.

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Ahibaran and others ...Opposite party

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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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Challenge in the present acquittal appeal is to the judgment and order dated 8.6.2006 passed by Additional Sessions Judge, Court No. 2, Hardoi in Sessions Trial No. 931 of 2002 (State Vs. Ahibaran and others) arising out of Case Crime No. 396 of 2002 under Section 302/34 IPC, P.S. Kotwali Shehar, District Hardoi by which the learned trial court has acquitted the accused from the charges against which present application for leave to appeal has been filed by the State Government.

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U/s 378 Cr.P.C. No. 2375 of 2006

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The factual matrix of the prosecution case is that informant Phoolchandra S/o Maiku Lal had given a written complaint dated 08.06.2002 to Police Station concerned that he had purchased a mango grove from one Shiv Prakash Singh. It was the season of mango. On 07.06.2002, when informant, his father Maiku Lal, his brother Jagdish and Satyendra Singh were sleeping in the grove to guard mangoes, at about 2.00 A.M. 7-8 persons entered into the grove with intention to pluck the mangoes. Those unknown persons tied Jagdish and Maiku Lal by a rope. When Jagdish hurled the voice for help, they strangulated him and stabbed the knife in his abdomen. Thereafter, they fled away. Informant and other persons identified them in torchlight. On the basis of above Tahrir, an F.I.R. under Sections 302/34 IPC, vide Case Crime No.396 of 2002 was lodged in Police Station Kotwali Shahar, District Hardoi against unknown accused persons.

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During investigation, the investigating officer prepared the spot map and inquest of dead body. He also prepared others papers and sent the dead body for postmortem. The investigating officers recorded the statements of witnesses under Section 161 Cr.P.C. and submitted the charge sheet against accused persons. The names of accused persons came on surface during investigation. Chief Judicial Magistrate took cognizance on charge sheet and committed the case to Sessions Court. The Sessions Court framed charges under Sections 302/34 IPC against accused persons, who denied the charges and preferred to contest the case.

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On behalf of prosecution Phoolchandra, Maiku Lal, S.I. Paridin Rawat, Dr. C.P. Rawat, Girwar and Constable Kanhaiya Lal deposed as witnesses PW-1 to PW-6.

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Statements of accused persons were recorded under Section 313 Cr.P.C. In their statements, accused persons stated that charges framed against them and evidence against them are false and they have been falsely implicated due to enmity.

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Learned trial court after hearing argument of learned counsel for the parties and considering the evidence available on record,

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U/s 378 Cr.P.C. No. 2375 of 2006

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acquitted the accused persons from the charges against which the present appeal has been filed by the State Government.

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Learned Additional Government Advocate has submitted that the trial court did not consider the evidence of prosecution which was sufficient to convict accused persons. Learned trial court failed to consider the case on the basis of settled principles of law and wrongly acquitted the accused persons. In the interest of justice, impugned judgment is liable to be set aside. Hence, the application for leave to appeal be allowed.

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Heard learned counsel for the State on application for leave under section 378 (3) of Cr.P.C. and perused the record. 9. A perusal of the record indicates that witnesses, PW-1 Phoolchandra and PW-2 Maiku Lal stated in their examination in chief that they had seen the occurrence and narrated the same as mentioned in FIR. The witness PW-1 Phoolchandra in his oral statement had stated that he identified the accused persons in torch light and dictated their names to scribe, to mention in the FIR, but the names of accused persons were not mentioned in the FIR. Thereafter he moved application to Superintendent of Police, Hardoi. But no evidence of any such application was submitted by prosecution. Witness PW-2 Maiku Lal had also stated that he saw that accused Ahibaran and Rampal were strangulating Jagdish by ‘lathi’ and accused Chottey @ Kabra was stabbing with knife in the abdomen of Jagdish. He identified the accused persons in torch light but record indicates that FIR contains no names of any accused persons. In inquest report also, no names of accused persons had been mentioned. According to the FIR version, four persons were sleeping at the time of occurrence but under what circumstances only Jagdish had received fatal injuries and other persons including informant could not receive any injury, the situation has not been explained by prosecution witnesses, PW 1 and PW 2. It revealed from evidence that other villagers were also present on their adjoining fields for guarding but such neighbours have not been produced by prosecution in evidence. No incriminating article has been recovered on the pointing out of

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U/s 378 Cr.P.C. No. 2375 of 2006

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accused persons. No identification parade was conducted, hence the trial court after proper scrutiny of evidence rightly concluded that no evidence has been produced by prosecution which may connect accused persons with the alleged crime, hence, the trial court acquitted accused persons from all the charges of offence. The view taken by the trial court is one of the possible view and it cannot be said to be perverse.

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It is found that 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.

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In such a case where the prosecution has failed to prove its case against accused persons beyond any doubt, it can be said as principle that an appeal against acquittal is always on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, the paramount consideration of the Court should be to do substantial justice and avoid miscarriage of justice.

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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. When two views are reasonably possible the High Court ought not interfere with the order of acquittal.

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In the light of the guidelines framed by settled law, the impugned judgment 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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In the present case, the failure of the prosecution to prove the case against accused, the conclusion of trial court for acquittal of accused was a probable, which is based on proper reasons also. The judgment of the trial court cannot be said to be illegal, illogical and improbable. So, we are satisfied that there is absolutely no hope of

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5 U/s 378 Cr.P.C. No. 2375 of 2006

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success in this appeal and accordingly, no interference is called for. Hence, the prayer for grant of leave to appeal is hereby refused, the application U/s 378(3) is rejected. Consequently, 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 8, 2021 Amit/P.Sri.

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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 AMIT KUMAR Date: 2022.02.25 13:29:33 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Ahibaran and 3 Others

Case brief

What is this about?

What did the court decide?

State of U.P. v. Ahibaran and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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