Dismissed

State of U.P. v. Laxman and 2 Ors.

Allahabad HC23 Mar 2022GOVA/1000182/2008

Case brief

AI extract

What is this about?

The High Court rejected the State's application for leave to appeal under Section 378 CrPC. Upholding the trial court's acquittal of Laxman from murder charges and complete acquittal of co-accused, the Court held that findings were based on evidence and were not perverse.

What did the court decide?

Application under Section 378(3) Cr.P.C. rejected; prayer for leave to appeal refused; memorandum of appeal dismissed.

State of U.P. Vs Laxman and 2 Ors. — Murder and Culpable Homicide | Allahabad HC (2022)

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Chief Justice’s Court Additional Cause List Serial No.1

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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Decided on : March 23, 2022

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U/s 378 Cr.P.C. No. 182 of 2008

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State of U.P. ...Applicant

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Through: Smt. Smiti Sahay, Additional Government Advocate

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vs.

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Laxman and others ...Opposite party

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Through: Mr. Harsh Vardhan Singh, Amicus Curiae

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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 has been filed against the judgment and order dated February 26, 2008 passed by Additional Sessions Judge/F.T.C. Court, District Balrampur in Sessions Trial No. 199 of 2005 (State Vs. Laxman and others). By impugned judgment, learned trial

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2 U/s 378 Cr.P.C. No. 182 of 2008

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court had acquitted the accused persons Salfan @ Ramakant and Babbu @ Harishchandra Soni from the charges of offence under Sections 148, 504, 506, 307 and 326 read with Section 149 IPC. On the other hand, the trial court convicted the accused Laxman under Sections 324 and 326 IPC but acquitted him from the charges of the offence under Sections 148, 149, 504, 506 and 307 IPC against which the present application for leave to appeal has been filed by the State Government.

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Brief facts of the case are that on 5.8.2004 informant Nanku @ Suryapal gave a written application to police station concerned with contention that the informant was sleeping at his flour mill. At about 10:15 PM, he woke up after hearing the noise from his neighbourhood. As he woke up, immediately, the accused persons Laxman, Salfan @ Ramakant, Babbu Soni and other unknown persons reached there and attacked him with knife. He shouted for help, thereafter, family members of informant and other neighbours namely Rajesh S/o Niranjan, Ashok Kumar S/o Nankau, Rajesh S/o Laxmi Narayan, Raju S/o Sunder Lal and many other persons reached at the place of occurrence and saved his life.

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Pursuing the above application, the FIR of the occurrence was lodged by police under Sections 147, 307, 323, 504 and 506 IPC vide Crime No. 282 of 2004. In medico legal examination three incised wounds were found on the body of informant out of which two were on abdomen and one was on the chest of victim.

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The investigating officer after completing investigation submitted charge sheet against accused persons. Charges under Sections 148, 504, 506, 307 and 326 read with Section 149 IPC were framed by the trial court against the accused Laxman, Salfan @ Ramakant and Babbu @ Harishchandra Soni, who denied the charges, pleaded not guilty and claimed trial.

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In the course of trial, on behalf of prosecution, Nanku @ Suryapal as, PW-1, Raju @ Awadhesh Kumar as PW-2, Rajesh Kumar as PW-3, Constable Ramashankar Chauhan as PW-4, Ashok Kumar Gupta

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U/s 378 Cr.P.C. No. 182 of 2008

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as PW-5, Shamim as PW-6, Rajesh Kumar S/o Laxmi Narayan as PW-7, Dr. Sarvesh Shukla as PW-8, Chandan Gupta as PW-9, SI Ram Narayan Singh as PW 10, Atul Khanna as PW-11 and Dr. Shiv Prakash Gautam as PW-12 recorded their statements.

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After conclusion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied their involvement in occurrence and submitted that they had been falsely implicated in the case due to enmity. In defence, witnesses Atwari as DW-1, Suraj as DW-2 and Awadhram Yadav as DW-3 had recorded their evidence. Apart from that, accused persons had submitted some documentary evidence vide list 67Kha-1 to prove the fact that the persons of informant side themselves had attacked on accused Laxman and other members of his family. Complaining the above incident, Asha Devi (mother of Laxman) lodged an FIR against Nand Kishore and others under Sections 147, 308, 323, 504, 506 IPC vide Crime No. 282A of 2004 which was the cross case.

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Learned trial court, on the basis of material available on record, acquitted accused Laxman from the charges of Sections 148, 307/149, 504 and 506 IPC but convicted him under Sections 324 and 326 IPC. Apart from that, learned trial court acquitted the accused persons Salfan @ Ramakant and Babbu @ Harishchandra Soni from the charges of Sections 148, 149, 307, 326, 504 and 506 IPC. The judgment of trial court has been challenged by State Government.

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Ms. Smiti Sahay, learned AGA pressing the application under Section 378(3) Cr.P.C. argued that learned trial court has committed a patent illegality in discarding the reliable and credible evidence of prosecution. The court has wrongly acquitted the accused Laxman from the charges of Section 307 IPC. It is proved that he had attacked on vital part of informant. The evidence of prosecution has also proved the fact that other accused persons Salfan @ Ramakant and Babbu @ Harishchandra Soni were also present on spot but trial court ignored the evidence. Learned trial court has wrongly concluded that

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4 U/s 378 Cr.P.C. No. 182 of 2008

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offence under Section 307 IPC is not made out. Recovery of weapons used in causing attack was sufficient to establish the role of accused Laxman for committing the offence under Section 307 IPC but learned trial court erred with material illegality by holding otherwise, therefore, the impugned judgment and order is liable to be set aside. Appeal be heard on merits by allowing the application for leave to appeal.

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In reply, learned Amicus Curiae on behalf of opposite parties submitted that accused persons Salfan @ Ramakant and Babbu @ Harishchandra Soni although are named in FIR but the FIR version is not supported with any independent and cogent evidence. There is no evidence on record which may prove their participation in occurrence. Salfan @ Ramakant was the real brother of Laxman. It has been shown that in the occurrence Laxman and three other members of his family had received injuries but no injury has been shown to Salfan @ Ramakant as he was not present at his house at the time of occurrence. As it has been held by trial court, the real place of occurrence was the house of Laxman, who attacked on informant in exercise of his right to private defence, therefore, learned trial court acquitted the accused Salfan @ Ramakant and Babbu @ Harishchandra Soni and Laxman from the charges concerned. The acquittal order of trial court is just and proper which is based on the evidence on record, hence, the application under Section 378(3) Cr.P.C. being contrary to law, deserves to be rejected.

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Heard learned Additional Government Advocate for the State on application for leave under section 378 (3) of Cr.P.C. and Sri Harsh Vardhan Singh, learned Amicus Curiae on behalf of opposite parties and perused the record thoroughly.

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It has been held by learned trial court that in both the Sessions Trial i.e. S.T. No. 199 of 2005 and S.T. No. 29 of 2006, the time of occurrence was same and both the cases had been lodged as cross case of one another. In S.T. No. 29 of 2006, Laxman (accused of present case), Asha Devi (mother of Laxman), Nibbar Prasad (uncle of

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5 U/s 378 Cr.P.C. No. 182 of 2008

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Laxman) and Swami Dayal (father of Laxman) had received grievous injuries whereas in S.T. No. 199 of 2005 the sole person Nanku @ Suryapal (informant) had received the injuries. The place of incident was only one as had been shown in the cross case i.e. Case Crime No. 282A of 2004 vide S.T. No. 29 of 2006.

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The genesis of occurrence which came on the surface was that there was a temple named Devi Patan Temple and some litigation between temple management and its tenants was pending in the court. Accused Laxman was the employee of temple whereas Nand Kishore, the real uncle of injured Nanku @ Suryapal was one of the tenant of temple. On the date of occurrence, accused Laxman had gone court to record his evidence as witness from the side of temple management. On same day in night, accused persons who were named in the FIR of Crime No. 29 of 2006, attacked at the house of Laxman, in which four persons had received injuries. According to medico legal examination report, injured Nibbar Prasad had received two injuries of lacerated wound on his head and one injury of swelling on hand, Swami Dayal had received two injuries of lacerated wound on his head and one of abrasion on leg, Laxman had received one injury of lacerated wound on his head and two injuries of swelling on coller bone and scapula and one injury of abrasion on coller bone and injured Asha Devi had received two injuries of abrasion on her head and knee joint.

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It has been found that the FIR of S.T. No. 199 of 2005 was lodged at 22:40 hours whereas FIR of S.T. No. 29 of 2006 was lodged at 22:45 hours in police station concerned. Although in the present case, the informant had stated that he had been attacked by accused persons at his flour mill but learned trial court, on the basis of evidence, explored the fact that a single occurrence took place at the house of accused Laxman which was situated near to flour mill of informant Nanku @ Suryapal, who himself had admitted that he woke up after hearing the noise from his neighbours. The aforesaid noise was of cry of victims of S.T. No. 29 of 2005. In fact, after hearing the noise, informant Nanku @ Suryapal

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6 U/s 378 Cr.P.C. No. 182 of 2008

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reached on spot i.e. at the house of Laxman where the aforesaid Laxman and members of his family were being beaten by his uncle Nand Kishore and others. In the occurrence the injured including Laxman had received injuries on their vital organs, at that time just to prevent further injury and in self defence injured Laxman attacked on Nanku by sharp edged weapon like knife. Witness PW-1 had admitted in his evidence that earlier to that there was no enmity between informant and accused persons. So far as the roles of accused Salfan @ Ramakant, who was brother of Laxman and Babbu @ Harishchandra Soni was concerned, they were not present on spot. It has been found that except Salfan @ Ramakant all the other family members of Laxman were injured. Babbu @ Harishchandra Soni is unconcerned with any enmity between the parties. He had been implicated in the case only due to the reason that he was the friend of Laxman.

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The learned trial court also concluded that the recovery of sharp edged weapon ‘khukhri’ was doubtful. The weapon neither was recovered just after the incident from the place of occurrence, nor on the pointing out of any accused, rather it was handed over to police by witness PW-9 Chandan Gupta that too after 11 days of occurrence. Witness PW-9 was the brother of informant Nanku @ Suryapal. In his statement, witness PW-9 had stated that ‘khukhri’ was given to him by one Pappu who has not been produced in evidence by prosecution. It has been found that Pappu was son of witness PW-6. The weapon was not sent to Forensic Science Laboratory for examination. Learned trial court further concluded that recovery of ‘khukhri’ after 11 days as shown from the place of occurrence was highly doubtful, which has not been corroborated by primary evidence. Witness PW-1 had stated in his evidence that when he was attacked by the accused persons, at that time, his servants Nand Kumar and Suraj were also present but Nand Kumar and Suraj have not been shown as injured persons. Apart from that they have not been produced by prosecution as witnesses.

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U/s 378 Cr.P.C. No. 182 of 2008

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Learned trial court, after taking into consideration the evidence of both the cases i.e. S.T. No. 199 of 2005 and S.T. No. 29 of 2006, has concluded that the actual place of occurrence was the house of accused Laxman. The accused of S.T. No. 29 of 2006 were aggressor and accused Laxman had attacked on informant in his private defence. The victim-informant Nanku @ Suryapal was present on spot to help Nand Kishore, who was the main accused in S.T. No. 29 of 2006. The trial court has further concluded that accused was not having any intention or mens rea to cause injury. Accordingly, learned trial court has rightly held that the ingredients of offence defined under Section 307 IPC are not made out, consequently, the court acquitted accused Laxman from the charge of Section 307 IPC but convicted him under Sections 324 and 326 IPC. The involvement of accused persons Salfan @ Ramakant and Babbu @ Harishchandra Soni has not been proved, therefore, they have been acquitted from all the charges of offence.

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In such cases, the jurisdiction of appellate court is extensive with that of trial court in the matter of assessment, appraisal and appreciation of evidence and also to determine the disputed issues. The appellate Court will always give proper weight and consideration to such matters as the credibility of witnesses, the presumption of innocence in favour of accused and the right of accused to the benefit of any doubt. The appellate court is always slow in disturbing a finding of fact arrived at by the trial judge who had advantage of seeing the demeanor of witnesses. The paramount consideration of the court should be to avoid miscarriage of justice.

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Undoubtedly in a case where admissible evidence is ignored and trial court has acted on surmises and conjunctures, a duty is cast upon the appellate court to re-appreciate the evidence when the accused has been acquitted. On the other hand, finding of acquittal if based on appreciation of evidence would not be interfered on flimsy ground. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would

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8 U/s 378 Cr.P.C. No. 182 of 2008

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not reverse an order of acquittal. Under the criminal jurisprudence, there is a presumption of innocence of accused, which gets further strengthen with the acquittal of accused. As a principle of criminal law, if two views, one in favour of accused and other against accused are possible by the evidence on record and the trial court decides to acquit the accused then in that case also the finding of trial court should not be interfered.

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Having heard the arguments advanced by learned counsel for the parties and after perusal of material available on record, we are of the considered view that the findings of trial court are just and proper which are based upon proper reasoning which cannot be said to be illegal or perverse. The application under Section 378(3) Cr.P.C. has no merits. Hence the prayer for grant leave to appeal is hereby refused and application U/s 378(3) Cr.P.C. is rejected.

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The memorandum of appeal consequently does not survive and stands dismissed.

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

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Lucknow March 23, 2022 Amit/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 AMIT KUMAR Date: 2022.03.24 11:39:32 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Laxman and 2 Ors.

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What is this about?

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State of U.P. v. Laxman and 2 Ors.

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