Dismissed

State of U.P. v. Jaspal @ Jagpal and 3 Others

Allahabad HC1 Feb 2022GOVA/1001799/2006

Case brief

AI extract

What is this about?

In this appeal, the State sought leave to challenge the trial court's acquittal of accused persons for attempt to murder under Section 307 IPC. The High Court held that the prosecution evidence was unreliable due to major contradictions between witnesses and prior enmity. Rejecting the appeal, the High Court affirmed the acquittal and exercised discretion not to grant leave.

What did the court decide?

Leave to appeal to Supreme Court rejected; appeal by State dismissed; acquittal of accused affirmed.

State of U.P. Vs Jaspal @ Jagpal and 3 Others — Murder and Culpable Homicide | Allahabad HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH, LUCKNOW

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Court No.1

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Case :- U/S 378 CR.P.C. No. - 1001799 of 2006 State of U.P. - APPELLANT.

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VERSUS

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Jaspal @ Jagpal Son of Kedari

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Ravindra Son of Kedari,

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Anil Son of Mangrey,

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Retua Son of Rajendra - RESPONDENTS

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Counsel for Appellant :- Mr. Vishwas Shukla, Additional Government Advocate.

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Hon'ble Ramesh Sinha,J. Hon'ble Mrs. Saroj Yadav,J.

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(ORAL)

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( per Saroj Yadav, J)

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On account of recent spike in the number of COVID-19 positive cases, it has been decided vide notice dated 09.01.2022 that the Court shall function in virtual mode only, till further orders.

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In view of the above, the instant case has been taken up through Video Conferencing.

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This appeal alongwith application under Section 378 (3) of the Code of Criminal Procedure, 1973( in short 'Cr.P.C. ') has been filed by the State/appellant with the prayer that leave to appeal may be granted against the judgement and order dated 25.4.2006 passed by learned Additional Sessions Judge, Court No.3, District Lakhimpur Kheri in Sessions Trial No.226

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of 2003 State Vs. Jaspal @ Jagpal and others arising out of Case Crime No.618 of 2002, under Section 307/34 Indian Penal Code (in short 'I.P.C.' ), Police Station Mohammadi, District Kheri whereby the accused respondents were acquitted.

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The brief facts necessary for disposal of this appeal are as under :

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A First Information Report ( in short 'F.I.R.' ) was lodged by the complainant Siya Ram alleging that Anil enticed away the wife of his brother-in-law Daya Ram on 27.11.2002. On this information, he went to the place of his brother-in-law. On 6.12.2002 at about 2.00 p.m., when he was coming after defecating in the sugarcane field of Harendra Babu ; Jaspal, Ravindra, Anil and Retua armed with countrymade pistols came there and asked him that he had come to help his brother-in-law, and asked the fellow miscreants to kill the complainant. Upon it, Jaspal fired upon him with countrymade pistol, with the intention to kill him. Upon his cry and hearing the sound of fire, Rampal and and Guddu came there and they challenged the accused persons then accused persons fled away threatening them.

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The case was investigated and chargesheet was submitted against the accused respondents and they were put on trial. The charge was framed against them but they denied the charge and claimed to be tried.

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The prosecution examined six witnesses namely P.W.-1 Siya Ram complainant and injured, P.W.-2 Ram Pal, P.W.-3 Dr. A.K.Tyagi, P.W.-4 Constable Brij Mohan Singh, P.W.-5 Dr. A.K.Pant and P.W.-6 Shri Bijednra Bahdur Singh, the investigating officer. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. They denied the crime and said that the witnesses have deposed falsely as they are relatives to each other. Accused respondent Jaspal has also stated that Lala Ram is an artisan. He makes countrymade pistols and during the test trial, the complainant Siya Ram got injured. Accused Ravindra deposed against Lala Ram in a criminal case, so he got implicated the accused persons falsely in this case due to enmity. Accused Anil has also stated in the same way in his statement under Section 313 Cr.P.C. Accused persons have also filed the photo copy of the chargesheet of Case Crime No.248 of 2001 under Sections 324, 323, 504 I.P.C. against Lala @ Laloo and others and one copy of application given to U.P. Human

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Rights' Commission vide 1.3.2003 and 22.12.2003 presented by the accused Ravindra Kumar.

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After hearing learned counsel for both the sides and perusing the record, the learned trial court did not find the evidence of P.W.-1 and P.W.-2 reliable and came to the conclusion that the prosecution could not prove the charges levelled against the accused persons beyond reasonable doubt because there was only one injury of 1 cm X 1 cm. on the left side of upper part of abdomen. The trial court found the major contradictions in the evidence of P.W.-1 and P.W.-2 who are the witnesses of facts and acquitted the accused persons. Being aggrieved of the acquittal, this appeal has been filed.

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Heard Shri Vishwas Shukla, learned Additional Government Advocate (in short 'A.G.A.' ) for the appellant-State of U.P., perused the impugned judgement and order and record of the trial court.

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Learned A.G.A. assailing the impugned judgement submitted that the learned trial court did not appreciate the evidence of the injured complainant i.e. P.W.-1 properly. The injured witness has himself stated that he was fired upon by accused respondent Jaspal

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and other accused were also with him. He further submitted that in the medical examination, fire arm injury was found on the person of the injured/ complainant. The time of the incident has also been corroborated by the evidence of Dr. A.K.Pant, P.W.-5, the medical witness. Furthermore, P.W.2 Ram Pal has also corroborated the statement of P.W.-1, hence the impugned judgement and order should be set aside and the accused respondents be convicted.

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Considered the submissions made by learned A.G.A. and perused the record.

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The Hon'ble Supreme Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in (2021) 5 SCC 543 , has laid down as under ( para 16) :-

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"16. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, State of Andhra Pradesh v. M. Madhusudhan Rao, And Raveen Kumar v. State of Himachal Pradesh) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into

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practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".

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Now we have to consider the appeal in hand keeping in mind the above guidelines laid down by the Hon'ble Supreme Court. In the present matter, the story of the prosecution is that the complainant/ injured came to Village Suatali Madaiya, Police Station Mohammadi at his brother-in-law's house after getting the news that the wife of his brother-in-law was enticed away by one of the accused Anil on 27.11.2002. On 6.12.2002 at about 2.00 p.m. when he is coming back after defecating in the sugarcane filed of Harendra Babu, accused persons came there with countrymade pistols and one of the accused person Jaspal fired upon him with the intention to kill him. The pellets of the fire hit his stomach. After hearing his cry, and sound of fire, Ram Pal and Guddu came there and the accused persons ran away when Ram Pal and Guddu challenged them.

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In examination-in-chief, the complainant/injured as P.W.-1 has stated that at the time of incident, upon his cry, Ram Pal and Guddu reached and when they challenged the accused persons, they ran away. While in cross examination, he said that on the date of

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incident, Ram Pal and Guddu went to Village Paitipur, District Shahjahanpur. He further stated that he did not fall after being fired by the accused persons and he went to his house in the injured state. The medical examination of the injured complainant shows that only one injury of 1 cm X 1 cm was found on the upper part of abdomen. In X-ray report, no abnormality was found. The injured has stated in his evidence that he remained hospitalised for 15-20 days in Lakhimpur Kheri hospital but there is no such medical report on record or any other evidence to prove the fact that he remained hospitalised for 15-20 days.

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The P.W.-1 in his cross examination has stated that he has no enmity with the accused persons. Lala Ram had enmity with accused persons, therefore he lodged the F.I.R. against them. In cross examination, this witness has also stated that the field of sugarcane where he went to defecate was very dense. Nothing was visible. As far as P.W.-2 Ram Pal is concerned, he has stated that he and Guddu upon hearing the sound of fire and cry of Siya Ram, ran towards the field of Harendra Babu. There they saw that Siya Ram was lying down on the boundary of field of Harendra Babu and accused persons with countrymade pistols in their

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hands were running away. They reached near the injured Siya Ram and found that Siya Ram got firearm injuries in his stomach. Then they picked up Siya Ram and brought him at the house of Daya Ram and narrated everything to Daya Ram. P.W.-1 injured has said in his statement that he did not fall down after receiving the injuries, he himself went to home. In cross examination, P.W.-2 Ram Pal says that when he reached at the spot no person of village was there and Siya Ram was coming pressing his stomach. When he reached, he tied his handkerchief at the injury of Siya Ram. Thereafter, Siya Ram went to his house.

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On analyzing, the evidence of P.W.-1 and P.W.-2 in totality, it is revealed that there are major contradictions in evidence of P.W.-1 and P.W.-2 and it appears that either injured could not see the persons who fired upon him or he received injuries somewhere else. It is also clear that P.W.-2 did not see the accused persons either committing the crime or running away. Another eye witness, mentioned in the F.I.R. has not been examined. Old enmity has been alleged as accused Ravindra gave evidence in a case against Lala Ram. The factum of enmity with Lala Ram brother of

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Daya Ram has been admitted by P.W.-1 in his cross examination.

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In nutshell, the evidence of P.W.-1 and P.W.-2 is not worthy of credence as they have given contradictory statements. The previous enmity with accused persons was there. Thus, no reliable evidence is annexed to prove the charges levelled against the accused persons, beyond reasonable doubt. The impugned judgement and order is a well reasoned judgement. There appears no reason to disturb the finding recorded by the trial court of acquittal of the accused respondents.

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Hence, we do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly rejected. The appeal is dismissed.

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. (Saroj Yadav,J) (Ramesh Sinha,J) Order Date :- 1.2.2022/Shukla

State of U.P. v. Jaspal @ Jagpal and 3 Others

Case brief

What is this about?

What did the court decide?

State of U.P. v. Jaspal @ Jagpal and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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