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2013 DIGILAW 1466 (ALL)

Anand Kumar v. State of U. P. and Others

2013-05-17

KARUNA NAND BAJPAYEE

body2013
Karuna Nand Bajpayee, J.;— Present revision has been preferred against the judgement and order dated 30.09.2009 passed by the learned ADJ, Court No.7, Ghaziabad in S.T. No. 997 of 2006 (State Vs. Dharampal and others) U/s 302/34 IPC and S.T. No. 1102 of 2006 (State Vs. Mahavir) U/s 25 Arms Act, whereby it has acquitted all the three accused who faced the trial. Vide order dated 11.11.2009 notices to respondents were issued and lower court record was summoned by the court. It seems that revision has not been admitted so far and the matter has not been heard. Today Sheshadri Trivedi, Advocate, holding brief of Sri Satish Trivedi, learned counsel for the revisionist as well as Sri Ansuman Vidu Chandra, learned counsel for the respondent no.2 are present. The State is represented by the learned AGA. The submissions made at the bar have been heard at length and apart from perusing the impugned judgement I have also perused the relevant evidence from original record. In short the prosecution story seems to be that on 20.04.2006 the first informant's son Narendra (since deceased) was going to his fields. On reaching the Crusher of one Harikrishn there came across four accused persons namely Dharampal and his three sons namely Mahavir Prasad, Surendra and Yogendra. Accused Dharmpal and Yogendra caught hold of him and after the exhortation given by Mahavir, accused Surendra and Mahavir himself fired shots at Narendra. This incident took place at 6.30 A.M. in the morning. Hearing the sound of fire the first informant who was present in the field and other co-villagers were attracted towards the spot and after reaching the spot these witnesses saw the occurrence. Thereafter the accused took to their heals making their escape good. The first informant after reaching near his son found that he had already died. An FIR regarding this incident was lodged and after due investigation the charge sheet was submitted. It appears that subsequently co-accused Surendra absconded and his trial was separated. The other three accused Dharampal, Mahavir and Yogendra were tried by the lower court. The prosecution in order to prove its case produced P.W.1 Chirangi Lal, P.W. 2 Sanjay Kumar, P.W. 3 Ishwar, as witnesses of fact. There are other witnesses who are of formal nature, which have also been produced like I.O. and Doctors. The other three accused Dharampal, Mahavir and Yogendra were tried by the lower court. The prosecution in order to prove its case produced P.W.1 Chirangi Lal, P.W. 2 Sanjay Kumar, P.W. 3 Ishwar, as witnesses of fact. There are other witnesses who are of formal nature, which have also been produced like I.O. and Doctors. On behalf of accused three defence witnesses namely Azaj Ahmad, Gunraj Singh and O.P. Rai, Advocate as D.W. 1, 2 and 3 have also been produced in defence. Apart from the Sessions Trial No. 997 of 2006 (State Vs. Dharampal and others), under section 302/34 IPC, another Sessions Trial No. 1102 of 2006 (State Vs. Mahavir) under section 25 Arms Act had also commenced and both the trials were decided by the impugned common judgement. The learned trial court absolved all the accused of all the charges which they faced and they were acquitted. The counsel for the revisionist contends that the learned ADJ has given too much importance to the failure of the prosecution to prove the motive. According to him, in the case where eye witnesses are available, the motive falls into the insignificance and it is not material at all whether the same could be proved or not. He has also emphasized that there are two entry wounds found on the dead body and both of them have their corresponding exit wounds also. The submission before the court is that proper corroboration from the medical evidence is available on the record and the learned lower court has erred in not giving due weight to the corroboration of oral evidence from the medical evidence. According to him it was a day light occurrence having sufficient eye witness account of the occurrence and there was sufficient corroboration from postmortem report and therefore the judgement of acquittal is unsustainable on law and facts both. No other point has been pressed forth before the court. Per contra the counsel for the respondent has drawn the courts attention to several aspects including medical aspects also and has shown that medical evidence far from lending corroboration is in fact demolishing the oral eyewitness account of the prosecution. I have heard the rival contentions of both the sides and have also been taken through the relevant portions of the judgement as well as of the record. I have heard the rival contentions of both the sides and have also been taken through the relevant portions of the judgement as well as of the record. There are several cogent reasons given by learned lower court which have persuaded it to record the findings of acquittal. While dealing with the medical aspect to the case the learned Judge has referred to the statement given by P.W.-6 Dr. A. K. Chaudhary wherein he has stated that the incident might have happened on 19.04.2006 at about 4.30 P.M. or at the most even till six hours thereafter. According to this statement incident could not have happened after 10.30 P.M. on 19.04.2006. It is pertinent to note that according to the prosecution story the present occurrence allegedly took place, at 7.30 A.M. next day on dt. 20.04.2006. The court is conscious about the fact that the medical science lacks perfection and the time of death can not be predicted with exactitude. The duration of time of death stated by doctors necessarily involves the margin of error of a few hours on both sides. But it does not mean to say that the margin of error can be stretched beyond the medically accepted notions of flexibility in predicting the time of death. The duration after death in the present case has been reported by the doctor in his postmortem report to be about one day old. The postmortem had taken place at 4.30 P.M. on 20.04.2006. In such cases the maximum margin of error which may be allowed is never more than 8 hours in general. In the present case particularly the prosecution witness doctor states this margin to be six hours only. In any case as per the finding of the doctor regarding the duration of time after death, the incident could not have happened at 7.30 in the morning of 20.04.2006 at all. Thus the ocular testimony of the witness is repugnant to the medically proved facts and they are visibly irreconcilable with each other. The contention of the respondent's counsel is that the incident must have occurred in the night hours which remained un-witnessed by any one. It was only subsequently when the dead body was found that the whole prosecution story was fabricated showing the false time of occurrence so that the eye witness account may be cooked up and furnished. The contention of the respondent's counsel is that the incident must have occurred in the night hours which remained un-witnessed by any one. It was only subsequently when the dead body was found that the whole prosecution story was fabricated showing the false time of occurrence so that the eye witness account may be cooked up and furnished. If the prosecution witnesses had actually seen the occurrence then the above noted repugnancy with the medical evidence could never have crept in. I find force in the above submission. The counsel for the revisionist has not been able to give any sort of explanation to this diagonal contradiction except this that the oral testimony should always be preferred to the medical evidence of the doctor. I am afraid, but this submission is too generalised and has been too broadly stated. It seems that the observations made by the Apex Court in some cases in this regard have been completely misunderstood resulting in such a misconceived argument. It is true that if the oral testimony of a witness is straight-forth and unalloyed with embellishments, if it is trust inspiring and creditworthy, it may not be thrown overboard just because of some insignificant and ancillary or peripheral discrepancy with the medical evidences. It is rightly so because firstly the evidence of the doctor is opinion evidence in nature and secondly because of the absence of ideal circumstances in which the autopsy is performed and its report prepared. Allowance has also to be given to the likelihood of marginal errors of observation creeping into the findings recorded by the doctors. But such a judicial approach may be adopted where the appearing discrepancy does not go to the root of the matter and is only collateral in nature. But if there is complete repugnancy between the oral and medical evidence or where the ocular version is so contradictory that it can not be reconciled with the medical evidence, the court should not ignore it. There is nothing on record to indicate that the doctor produced by the prosecution might have deliberately recorded incorrect findings or that he could have had a motive to prepare a false postmortem report. The revisionist counsel has not been able to show me any authority which might contain a different legal proposition than what has been discussed above. There is nothing on record to indicate that the doctor produced by the prosecution might have deliberately recorded incorrect findings or that he could have had a motive to prepare a false postmortem report. The revisionist counsel has not been able to show me any authority which might contain a different legal proposition than what has been discussed above. Hence this court feels constrained to take full cognizance of the glaring contradiction present in the prosecution evidence in this regard which has already been elaborated in the preceding paragraphs. There is another relevant feature which finds place in the postmortem report. There is complete absence of blackening, scorching or tattooing on the body of the deceased. This makes it apparent on the face of record that the firing must have taken place from distance of more than 6 to 8 fits. As per the eye witness account two of the co accused persons had caught hold of the deceased physically and it was then that the other two coaccused fired shots at the deceased. This is an inherently improbable situation, specially so when the coaccused holding the deceased were Dharampal and Yogendra while the other coaccused firing at the deceased were Mahavir and Surendra. Dharampal is none else than the father of the other three coaccused. It is very difficult to stomach this story as it bristles up with unnaturalness and gross improbabilities. The two sons are very unlikely to fire at the deceased from such a distance because it shall involve a close fatal risk of hitting and wounding their own father and brother. It is nobody's case that the shots have been fired from a point blank rang putting the barrel of the gun on the body of the deceased. Even in that situation the life and safety of the two coaccused holding on the deceased would have been under serious peril. I can not persuade myself to believe that such an insane and suicidal act could have been committed by the accused. So the whole eye witness account crumbling under the weight of it own unnaturalness and improbability is rendered wholly unworthy of credence. There are several other vital contradictories inter-se between the testimonies of the three eye witnesses. They have also been considered and detailed by the learned lower court and have been rightly given their due importance. So the whole eye witness account crumbling under the weight of it own unnaturalness and improbability is rendered wholly unworthy of credence. There are several other vital contradictories inter-se between the testimonies of the three eye witnesses. They have also been considered and detailed by the learned lower court and have been rightly given their due importance. The counsel for the revisionist could not show any good reason as to how the findings or the analysis given by the learned lower court in this regard may be faulted with. The contention of the revisionist counsel with regard to motive aspect of the case also does not seem to be factually correct when he submits that the acquittal of the accused has been recorded because of the failure of the prosecution to prove the motive. It is true that in a case where ocular version of the incident is available the motive aspect pales into insignificance. The court can act upon the testimony of the witnesses who inspire trust and confidence and the failure to prove the motive will not stop the court from arriving at the finding of guilt if it can be reached on the basis of the credit worthy ocular version of the incident given by the eye witnesses. There is no quarrel about this legal proposition. But a perusal of the impugned judgement shows that the learned lower court has not treated the proof of motive as an essential ingredient for the prosecution to bring home the charge. It has only found that the prosecution could not help itself by proving a convincing adequate motive which might have been of some assistance to it in order to prove its case. There is nothing wrong in this approach. Infact this is more so when the veracity of the eye witnesses has itself been found suspect and highly questionable for various reasons discussed by the learned lower court. The eye witness account of the incident alone may, in a given case, be quite sufficient to prove the guilt only if it is found reliable and worthy of acceptance, but never so when the same has been proved to be an untrustworthy tissue of lies like the present case in question. The eye witness account of the incident alone may, in a given case, be quite sufficient to prove the guilt only if it is found reliable and worthy of acceptance, but never so when the same has been proved to be an untrustworthy tissue of lies like the present case in question. Apart from this it appears from the statements of the defence witnesses that accused Mahavir had come to Allahabad in connection of some case and had stayed there in Gulab Mansion Hotel. The defence witnesses have been produced to prove the presence of this man in Allahabad from 19.06.2006 up till 20.06.2006 which is the day of the incident. Apart from witnesses of the Hotel, an Advocate Sri O.P. Rai has also been examined by the court who has sworn on oath that this accused physically remained with him on the day of incident i.e. 20.04.2006, all throughout the day as there was some matter relating to him in the High Court which he was pressing and regarding which an affidavit was also got prepared on behalf of this accused. The learned Judge has considered the testimony of these three defence witnesses in detail and had not found anything in them which could invite any serious castigation or which could persuade the court to look down and rubbish their testimony. It is trite law that witnesses of the defence should not and can not be looked with a prejudicial eye and they have to be treated on the same footing as witnesses of the prosecution. Their testimony has to be adjudged impartially and due weight has to be accorded to them if their testimonies qualify the known and accepted norms of credibility. I do not find any such thing in impugned order which may not be approved by this court. There is no perversity in the judgement; no inadmissible piece of evidence has been considered and used; no admissible piece of evidence has been ignored. The findings are neither against law nor against facts. The reasons adopted by the lower court can not be said to be unjust or unfounded. At any rate, I can not say that the view adopted by the learned lower court is not a reasonably possible view. The findings are neither against law nor against facts. The reasons adopted by the lower court can not be said to be unjust or unfounded. At any rate, I can not say that the view adopted by the learned lower court is not a reasonably possible view. Keeping in view the settled principles of law while sitting to adjudge the validity of the judgement of acquittal I can not loose sight of the fact that there is a golden thread in criminal jurisprudence which runs all throughout in favour of the accused that he is presumed to be innocent unless proved guilty. The judgement of acquittal further buttresses this presumption in favour of the accused. This court can no doubt interfere in a suitable case but not until there are compelling reasons to do so. It may not be out of place to mention some cases in which the judicial approach to deal with the appeals filed against the acquittal has been discussed:- In the case of Sheo Swaroop Vs. King Emperor, AIR 1934 PC 227, the substance of what the Privy Council had held is as under : "The High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainty not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." This view of law adopted by the Privy Council has formed the chief plank on the basis of which most of law in the following decades was laid down. The Supreme Court decisions on this point regarding the scope of interference in the verdicts of acquittal, have further supplemented the aforesaid view of the Privy Council. In the case of State of U.P. Vs. Banne @ Baijnath (2009)4SCC, 271, the Apex Court held as under:- "42. Following are some of the circumstances in which perhaps this Court would be justified in interfering with the judgement of the High Court, but these are illustrative not exhaustive. In the case of State of U.P. Vs. Banne @ Baijnath (2009)4SCC, 271, the Apex Court held as under:- "42. Following are some of the circumstances in which perhaps this Court would be justified in interfering with the judgement of the High Court, but these are illustrative not exhaustive. i) The High court's decision is based on totally erroneous view of law by ignoring the settled legal position; ii) The High court's conclusions are contrary to evidence and documents on record. iii) The entire approach of the High court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; iv) The High court's judgement is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; v) This Court must always give proper weight and consideration to the findings of the High Court. vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." In the case of Brahm Swaroop Vs. State, AIR 2010 (SCW) 6704 also, the same view was reiterated. The substance of what was held in this case may be summarized as follows : "It is well established in law that the appellate court should not ordinarily set aside a judgement of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgement of acquittal, the appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. Similarly, the incorrect placing of the burden of proof may also be a subject matter of scrutiny by the appellate court. The court of appeal may not interfere where two views are possible for the reason that in such a case it can be held that prosecution failed to prove the case beyond reasonable doubt and accused is entitled for benefit of doubt." In another case of State of Rajasthan Vs. The court of appeal may not interfere where two views are possible for the reason that in such a case it can be held that prosecution failed to prove the case beyond reasonable doubt and accused is entitled for benefit of doubt." In another case of State of Rajasthan Vs. Abdul Mannan 2011 (8) SCC 65 , it has been observed by the Hon'ble Supreme Court as under: - "12. As is evident from the above recorded findings, the judgement of conviction was converted to a judgement of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgement of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgement of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment, or imprisonment of more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134 (1) (a) and 134 (1) (b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court." In yet another case of Pudhu Raja & Anr. Vs. State, Rep. By Inspector of Police, 2012 (9) JT 252 the Apex Court observed as further:- "7. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgement in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." Again in another case of Radhakrishna Nagesh Vs. State of Andhra Pradesh, 2012 AIOL 601 this has been observed by Apex Court:- "34. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." Again in another case of Radhakrishna Nagesh Vs. State of Andhra Pradesh, 2012 AIOL 601 this has been observed by Apex Court:- "34. Lastly, coming back to the first contention raised on behalf of the accused, it is true that the appellate Court has to be more cautious while dealing with the judgement of acquittal. Under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgement of acquittal in his favour. A judgement of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court. 35. When we mention about the Court being cautious, it does not mean that the appellate Court cannot disturb the finding of acquittal. All that is required is that there should be a compelling rationale and also clear and cogent evidence, which has been ignored by the Trial Court to upset the finding of acquittal. We need not deliberate on this issue in greater detail. Suffice it to notice the recent judgement of this Court in the case of Ravi Kapur v. State of Rajasthan [JT 2012 (7) SC 480], where the Court, after discussing various other judgements of this Court held on the facts of that case that interference with the judgement of acquittal by the High Court was justified. The Court explained the law as under: 37. Lastly, we may proceed to discuss the first contention raised on behalf of the accused. No doubt, the Court of appeal would normally be reluctant to interfere with the judgement of acquittal but this is not an absolute rule and has a number of well accepted exceptions. In the case of State of UP v. Banne and Anr. Lastly, we may proceed to discuss the first contention raised on behalf of the accused. No doubt, the Court of appeal would normally be reluctant to interfere with the judgement of acquittal but this is not an absolute rule and has a number of well accepted exceptions. In the case of State of UP v. Banne and Anr. [ (2009) 4 SCC 271 ], the Court held that even the Supreme Court would be justified in interfering with the judgement of acquittal of the High Court but only when there are very substantial and compelling reasons to discard the High Court's decision. In the case of State of Haryana v. Shakuntala and Ors. [ 2012 (4) SCALE 526 ], this Court held as under: 36. The High Court has acquitted some accused while accepting the plea of alibi taken by them. Against the judgement of acquittal, onus is on the prosecution to show that the finding recorded by the High Court is perverse and requires correction by this Court, in exercise of its powers under Article 136 of the Constitution of India. This Court has repeatedly held that an appellate Court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to such accused under the fundamental principles of criminal jurisprudence, i.e., that every person shall be presumed to be innocent unless proved guilty before the court and secondly, that a lower court, upon due appreciation of all evidence has found in favour of his innocence. Merely because another view is possible, it would be no reason for this Court to interfere with the order of acquittal." I may give umpteen citations where similar views of law have been adopted by the Hon'ble Apex Court. I do not propose to burden this order by multitude of the citations as it will be superfluous in the present context. I am also in agreement with submissions made by respondent counsel that there is a marked difference between the scope of admission of a revision and scope of admitting an appeal. The courts of revision by accepted convention are loath to enter into question of facts and they confine the hearing mostly on the points of law. I am also in agreement with submissions made by respondent counsel that there is a marked difference between the scope of admission of a revision and scope of admitting an appeal. The courts of revision by accepted convention are loath to enter into question of facts and they confine the hearing mostly on the points of law. At any rate a whole scale reappraisal of all the factual aspects of the case has not been the judicial approach adopted by this court while it sits to exercise the revisional jurisdiction. The revisionist must show some illegality or impropriety or some such blunder in the appreciation of evidence which might have resulted in complete miscarriage of justice. The scope of entertaining a revision against acquittal, according to respondent counsel, is even more restricted than the scope while entertaining a government appeal against acquittal. The contention is not without substance. But it may be observed that despite the correctness of the aforesaid judicial approach, this court still has gone through all the evidence and factual aspects of the case so that even the faintest chance of a possible injustice may be averted. It is more so because of two reasons. Firstly it is a case of the gravest offence in which a precious human life has been extinguished. Secondly because of the drastic change in law regarding the rights of the victim to file an appeal against the order of acquittal. Formerly it was only the State which could file an appeal against such an order while the aggrieved family members were left with no option than to file a revision whose ambit and scope was highly circumscribed. Now they have been conferred with the right to file an appeal against the order recording acquittal. Even though for various procedural legal impediments this revision can not be converted into an appeal, yet the court has not muzzled any submissions made by the revisionist's counsel on the ground of this being the hearing of a revision and not appeal. But in the light of all the preceding discussions regarding the facts and law both, I do not find any good reason to interfere in the present case. The revision stands dismissed. The record of the case be remitted back to the lower court concerned, forthwith. _____________