Dismissed

State of U.P. v. Ganga Vishan and Others

Allahabad HC22 Sept 2022GOVA/2574/1985

Case brief

AI extract

What is this about?

In an appeal under Section 378 Cr.P.C., the High Court examined whether the trial court erred in acquitting four accused persons of assault charges. The court held that the prosecution failed to prove its case beyond reasonable doubt due to conflicting witness statements and inconclusive injury reports. Citing Supreme Court precedents on double presumption and the scope of appellate review, the Hi

What did the court decide?

The appeal against the order of acquittal was dismissed, thereby upholding the acquittal of the accused respondents.

State of U.P. Vs Ganga Vishan and Others — Criminal Trial and Appeal | Allahabad HC (2022)

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A.F.R

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Court No.92

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Case :- GOVERNMENT APPEAL No.- 2574 of 1985

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Appellant :- State of U.P. Respondent :- Ganga Vishan and others Counsel for Appellant:- A.G.A. Counsel for Respondent:Pavan Kumar Kushwaha

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Hon’ble Gajendra Kumar, J.

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The State of U.P. has preferred this appeal under Section 378 Cr.P.C. assailing the correctness of the judgment and order dated 07.06.1985 passed by the learned Civil Judge, Sr. Division-VIIth, District-Bareilly in Criminal Case No.193 of 1985 (State Vs. Ganga Vishun and others) whereby, the learned court below has acquitted all the four accused-persons (respondents) of the charges under Sections 323/324/34 of Indian Penal Code.

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The Appeal against respondent no.1 (Ganga Vishun) and respondent no.2 (Nathoo Lal) stands abated as they reported to have died, which is evident from the death certificate, filed by opposite party no.3, a copy of the same has been annexed as Annexure-SA-1 to the supplementary affidavit. Appeal against respondent no.3 (Hori Lal) has already been abated by a coordinate Bench of this Court vide order dated 01.02.2016, therefore, the same will proceed against respondent no.4-Siya Ram only.

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The prosecution story in brief is that, on the basis of written report dated 25.04.1981 (Ex.Ka-1), a chick FIR was registered at 22:10 p.m. against the respondents under Sections 324/323//504/506 IPC (Ex.Ka-6). In the said report, it is alleged by the informant-Roshal Lal s/o Jhunnu Lal (P.W.-1) that on the fateful day of 25.04.1981 at about 06:00 p.m., accused-persons were winnowing the wheat in the field of the informant, and when informant-Roshan Lal (P.W.-1) along with his brother Ram Kumar (P.W.-2) objected to do the same to the

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respondents, they denied and said in a very rudely manner that they will take it from this field itself, and after a few minutes, informant/complainant saw that accused-persons, namely, Ganga Vishu, Nathoo Lal and Siya Ram armed with ‘Ganta’ and Hori Lal armed with ‘lathi-danda’ committed maar-peet with the informant and his brother, as a result, they received serious injuries.

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While framing charge, the trial judge framed charges against the accused-persons under Sections 323/324/34 IPC. 5. So as to hold accused persons guilty, prosecution has examined as many as four witnesses. Statements of accused persons were recorded under Section 313 Cr.P.C., in which they pleaded their innocence and false implication. 6. By the impugned judgment, the trial judge has acquitted the respondents of all the charges. Hence, the present appeal by the State, assailing the acquittal of the accused-persons. 7. Learned AGA for the State-appellant submits that the trial judge has erred in law in acquitting all the accused-persons (respondents). He submits that once, the informants (injured) have made allegations against the respondents, the court was obliged to convict the accused.

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On the other hand, Sri Pavan Kumar Kushwaha, learned counsel for the surviving respondent no.4, submits that he was never involved in committing the aforesaid offence and false allegation has been levelled against him. As such, there is no illegality or perversity in the order, passed by the learned court below, hence no interference is called for by this Court.

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I have heard learned AGA for the State-appellant, Sri Pavan Kumar Kushwaha, learned counsel appearing for the surviving accused-respondent no.4 and perused the material available on record.

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As per the statement of Roshan Lal (P.W.-1), who has specifically stated in his written report dated 25.04..1981 (Ex.Ka-1) that Hori Lal was armed with lathi-danda and other accused-persons were armed with Ganta, but in his crossexamination, Roshan Lal (P.W.-1) has stated that Hori Lal was armed with Ganta and other accused-persons were armed with lathi-danda and committed maar-peet with the informantsinjured, which creates doubt in the prosecution story.

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Ram Kumar (P.W.-2), in his examination-in-chief, has also supported the prosecution story and as per his statement, the accused-persons committed maar-peet with the informantsinjured till five minutes, if his statement is accepted to some extent, then informants-injured are sure to get serious injuries, but as per medical report, all the injuries are simple in nature, which also creates doubts in the story of the prosecution.

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Narayan Lal (P.W.3), in his statement, has stated that Tractor and Thressor were standing on the ‘Med’(मेड़), at that point of time, and because of the wind, straw (Bhusa) was going in the field of the informants-injured so it could not be said that the motive of the accused-persons were bad, because the direction of the wind could not be reversed as it moved according to the natural order.

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In his statement, Jev Lal Gangwar (P.W.-4) has stated that, on the written report (Tahrir) (Ex.Ka-1), given by the informant-Roshan Lal, (P.W.-1), thumb impression taken by the ink-pad, which also creates doubt in the story of the prosecution version as there is no evidence available on record so as to prove that at that point of time ink-pad was present there.

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Injury reports of accused persons namely, Roshal Lal and Ram Kumar reads as follows:-

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Roshan Lal

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Incise wound 8 c.m. x 3 c.m. x muscle deep in the middle of the wrist of the right hand.

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Incise wound 8 c.m. x 1 c.m. x muscle on the elbow

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Impression:- All the injuries are simple in nature and caused by sharp weapon.

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Ram Kumar

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Incise wound 2 c.m. x 0.3 c.m. x muscle deep behind the right elbow..

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Abrasion contusion 7 c.m. x 2 c.m. below the left elbow.

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Impression:- All the injuries are simple in nature and injury no.1 caused by sharp weapon.

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Learned counsel for the State-appellant submits that as per injury reports, injured persons have received injuries by sharp weapon and this fact has also not been taken into consideration by the court below. Injuries on the persons of the injured/eye-witness guaranteed that story narrated by the witnesses is true and there is no material on record which can falsify the evidence.

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On the other hand, learned counsel for the respondent submits that as per injury reports, injured persons have received injuries by sharp weapon which also creates doubt in the story of the prosecution as the aforesaid injuries are simple in nature and not on vital parts of the body. He further submits that from perusal of the injury reports, it is apparent that injury reports have not been proved by the doctor and their genuineness has been admitted and formal proof has been dispensed with by the accused persons which means that they have been admitted by the accused persons as they are, but so

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far as their contents are concerned they are required to be proved by the prosecution but the same has not been done by the prosecution.

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From perusal of the record, it is evident that there is no denial of the fact that the defence admitted the genuineness of injury reports and formal proof thereof was dispensed with so the genuineness and authenticity of the documents i.e. injury reports stand proved and shall be read as valid evidence under Section 294 Cr.P.C. It is settled preposition of law that genuineness of any documents filed by the parties if not disputed by the opposite party. It can be read as a substantial evidence.

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In the above facts and circumstances of the case, the manner and mode in which the injuries were received by the injured persons has to be proved by the prosecution which has not been properly proved. In the facts and circumstances of this case, it can also not be improbablized that the injured persons received injury on their hands with gusts of wind while removing the winnowing machine. It is settled legal position that injuries on the injured person is a guarantee of his being present on the place of occurrence but is not guarantee of their truthfullness. In view of the above and in the facts and circumstances of the case, it is not safe to convict the accused person on the basis of evidence produced by the prosecution.

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Considering all the aspects of the case, the trial court came to the conclusion that the prosecution has utterly failed to prove its case beyond all reasonable doubts and, therefore, has acquitted all the accused-persons. The view taken by the trial court is one of the possible view.

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While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Apex Court that if two views of the evidence are reasonably 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 case of State of Karnataka Vs. Gopalkrishna as reported in (2005) 9 SCC 291 , the Hon’ble Apex 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 evidence 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

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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

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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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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 above:

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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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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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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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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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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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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

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appeal. It has been so stated in State of Rajasthan v.

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Shera Ram."

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Considering the above legal position and the factual aspects of the case, I am of the view that the trial Judge was justified in acquitting the accused-respondent.

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The Appeal is, accordingly, dismissed.

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Order Date: 22.09.2022 Ashutosh

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Digitally signed by ASHUTOSH SINGH Date: 2022.10.11 17:56:35 IST Reason: Location: High Court of Judicature at Allahabad

State of U.P. v. Ganga Vishan and Others

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State of U.P. v. Ganga Vishan and Others

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