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2014 DIGILAW 719 (ALL)

State of U. P. v. Budhu Singh

2014-03-02

KALIMULLAH KHAN, RAKESH TIWARI

body2014
JUDGMENT Kalimullah Khan, J.: - This Government Appeal No. 2750 of 1982, under section 378 Cr.P.C. has been filed by State of U.P. against Buddhu Singh @ Udaipal Singh, son of Chote Singh, r/o village Sartholi, police station Kant, District Shahjahanpur against the impugned judgment and order dated 28.7.1982, passed by the then learned III Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 807 of 1981 (Crime No. 86, tinder section 302 IPC and Crime No. 87, under section 25 Arms Act), P.S. Kant, District Shahjahanpur, whereby he has acquitted the aforesaid accused respondents. 2. The impugned judgment and order has been challenged on the ground that it is against the law and facts of the case; learned Sessions Judge has erred in holding that the evidence of eye-witnesses, Dharampal (P.W.1), Kaptan Singh (P.W.2) and Pt. 2. The impugned judgment and order has been challenged on the ground that it is against the law and facts of the case; learned Sessions Judge has erred in holding that the evidence of eye-witnesses, Dharampal (P.W.1), Kaptan Singh (P.W.2) and Pt. Mool Chand (P.W.4), is not consistent with the medical evidence; because the learned Sessions Judge erred in holding that it was highly improbable that Mangli Kachhi (hereinafter called as 'deceased') had left village Sartholi for Shahjahanpur in the morning of 17-18 March, 1981, without easing himself; because learned Sessions Judge erred in holding that since no scorching and tattooing were found around the gun-shot injury sustained by the deceased indicated that the shot was fired at him with the barrel of the pistol, which was almost in touch with the body of the deceased; because learned Sessions Judge erred in holding that the presence of the eye-witnesses (P.Ws.1, 2 and 4) was doubtful at the time of the incident; because learned Sessions Judge erred in holding that the possibility of the incident, having taken place some-time in the night is not ruled out; because learned Sessions Judge erred in holding the arrest of Buddhu Singh at the spot and the recovery of the incriminating pistol, live and empty cartridges from his possession, was doubtful; because the prosecution story was consistently supported by the testimony of the three eye-witnesses (P.Ws.1, 2 and 4) and found material corroboration from the prompt F.I.R. of the incident and the medical evidence; because as per the evidence of Ram Ashrey Pandey (P.W.5), Ballistic Expert, is there to prove that the recovered empty cartridges were fired from the pistol recovered from the possession of accused Buddhu Singh and still the learned Trial Court erred in holding that since the arrest of Buddhu Singh from the spot was doubtful, the evidence of ballistic expert was of no help to the prosecution; and lastly because the acquittal of accused Buddhu Singh is contrary to the weight of evidence on record and is bad in law, which has resulted in miscarriage of justice. The prayer was made to allow the appeal, set aside the impugned judgment and order of acquittal and convict and sentence accused Buddhu Singh, according to law. 3. The prayer was made to allow the appeal, set aside the impugned judgment and order of acquittal and convict and sentence accused Buddhu Singh, according to law. 3. In brief, Dharampal Singh, son of Jadav Singh, r/o village Sartholi, P.S. Kant, District Shahjahanpur, lodged his oral report to the aforesaid police station on 18.3.1981, at about 7.30 a.m. with an accusation that on 18.3.1981, at about 6.30 a.m., he was proceeding from his house to Shahjahanpur on a tractor trolley loaded with paddy. His uncle Kaptan Singh and Mool Chand as well as Mangli Kachhi (deceased) were also boarding the tractor and trolley. Deceased was sitting on the left mudguard of the tractor while Kaptan Singh and Mool Chand were sitting on the paddy bags, loaded on the trolley. When the tractor and trolley reached on the canal culvert of village Emliya at about 06.30 a.m, accused respondent Buddhu Singh, son of Chote Singh, r/o village Sartholi, P.S. Kant, district Shahjahanpur, all of sudden, appeared on the trolley from back side. Kaptan Singh checked him as to why did he come on the tractor and where is he to go? but all of sudden, he came on the tool-box of the tractor and fired with his country made pistol causing gun shot injury to the deceased and thereafter jumped from the tractor and started running, but informant, who was driving the tractor also jumped and chased him. Kaptan Singh and Mool Chand came down and they also helped the informant in overpowering accused respondent Buddhu Singh at the nala at a distance of 5-7 steps from the tractor when he was after unloading country made pistol was trying to reload the same. The country made pistol along with live and empty cartridges were recovered from his possession. Buddhu Singh was tied with the rope with his waist and hand on the joint of the tractor and trolley. Mool Chand was sent to the village to inform the incident from where a number of persons came. Village Pradhan came on a different tractor. Leaving Kaptan Singh, Mool Chand and other persons near the tractor trolley and accused Buddhu Singh at spot first informant Dharampal Singh went to the police station on the tractor of Village Pradhan. Mool Chand was sent to the village to inform the incident from where a number of persons came. Village Pradhan came on a different tractor. Leaving Kaptan Singh, Mool Chand and other persons near the tractor trolley and accused Buddhu Singh at spot first informant Dharampal Singh went to the police station on the tractor of Village Pradhan. He also took the country made pistol and empty & live cartridges recovered to the police station concerned where he handed it over to Head Constable and dictated his oral report to him. The arms and ammunitions were sealed by the Head Constable and oral report was reduced to writing. Check report was, accordingly, drawn and case was registered in the General Diary dated 18.3.1981, at 07.30 a.m. Since Mangli Kachhi has died at spot, therefore, inquest report was prepared and after observing necessary formalities, his dead-body was sent for post-mortem examination in a sealed cover. 4. The autopsy was done on his body on 19.3.1981, at about 12.15 p.m. He was found aged about 55 years and duration of death was about one day. Following ante-mortem gun shot injuries were found at his body "Gun shot wound of entrance 2 cm. x 1 cm. x brain deep on the right side of face just below the outer angle of right eye. Blackening was present around the wound. The underlying auxiliary bone and base of skull was fractured. The direction of the injury was backward. Bleeding was present from right ear. There was no charring or tattooing. The margins of the wound were lacerated and inverted. A wadding piece and 10 big metallic pellets recovered from the posterior cranial fossa. Death was caused due to shock. The post-mortem examination report (Ex. Ka-3) was prepared." 5. After interrogating the witnesses and making the recovery of blood from the spot, preparing the site plan, completing the investigation, the I.O. submitted charge-sheet against accused. The case was committed to the Court of Sessions and on transfer, it reached to the then III Additional Sessions Judge, Shahjahanpur, who framed charge against accused Buddhu Singh, under section 302 IPC and also under section 25 (1) (a) of Arms Act. 6. Accused denied the charge and claimed his trial. 7. In order to prove its case, prosecution examined witness, Dharampal Singh (P.W.1), who proved the FIR Kaptan Singh (P.W.2), Dr. 6. Accused denied the charge and claimed his trial. 7. In order to prove its case, prosecution examined witness, Dharampal Singh (P.W.1), who proved the FIR Kaptan Singh (P.W.2), Dr. S.C. Gupta, M.O. District Hospital Shahjahanpur (P.W.3), Mool Chand (P.W.4), Ram Asrey Pandey, Ballistic Expert (P.W.5), Shiv Nath Singh, Malkhana Incharge (P.W.6), H.C. Rafiuddin (P.W.7), who had reduced to writing the oral report (Ex.Ka-1) dictated by first informant, Constable 534 Mahavir Singh C.P. (P.W.8), I.O., Shri Kamla Prasad Pandey (P.W.9) and Constable 587 Shahid Hussain (P.W.10) have also been examined. 8. Accused Buddhu Singh was examined under section 313 Cr.P.C. He denied the prosecution allegation and evidence and stated that he came to know in the morning at about 7.00 a.m. that Mangli, driver of Dharamapal had been murdered. A number of villagers had gone to see him. At about 11.00 a.m., when he was returning from the scene of incident, at the culvert of village Imliya, Gyan Singh, Daroga of Kuriya and Sunder Singh, Daroga of Kant arrested him and took him near the tractor, where a jeep was also there. He was taken in the said jeep. Dharampal was also called from the village and was made to sit in the said jeep and at about 3.00 p.m., they took him to police station. Report was lodged. He was sent to lockup. Mangli (deceased) was the driver of the tractor of Kaptan Singh and the said tractor was used to be engaged in carrying the goods on rent. Police was inimical to him (accused), who falsely enroped him in this case to work out the crime and exonerated Dharampal after extorting money from him. 9. Accused was called upon to enter into his defence. He examined Shri Ajai Kumar, Assistant Jailer, District Jail, Shahjahanpur (D.W.1), who deposed that he was Assistant Jailer in District Jail Shahjahanpur. He had brought jail register dated 19.3.1981 and after perusing the same, he gave the evidence. According to him, Buddhu Singh, son of Udaipal, was lodged in jail as per Thana Kant Iljam Nos. 86 and 87. At the time of his insertion in jail, he was wearing kurta, baniyan, dhoti and angocha, which were entered into the register in his own handwriting which was made in his ordinary course of official duty. According to him, Buddhu Singh, son of Udaipal, was lodged in jail as per Thana Kant Iljam Nos. 86 and 87. At the time of his insertion in jail, he was wearing kurta, baniyan, dhoti and angocha, which were entered into the register in his own handwriting which was made in his ordinary course of official duty. In column No. 10 of the said register, the Jail Doctor has mentioned the health of accused as good health, aged about 28 years. 10. Having heard learned Counsel for the parties, learned Trial Court recorded a finding of acquittal of accused respondent Buddhu Singh, as stated above. 11. Feeling aggrieved, this government appeal has been preferred. 12. We have heard learned Counsel for the parties and perused the records. 13. We are conscious of the legal position that while hearing the government appeal against the judgment and order of acquittal, following settled legal principles shall be kept in mind "The Privy Council had held that in an appeal from acquittal the High Court has full power to review the entire evidence upon which the order of acquittal is founded and then to come to its own conclusion. No limitation can be placed on that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon facts, the High Court should and will always give proper weight and consideration to such matters as (1) the view of the Trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly 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 disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The Supreme Court in Sanwat Singh's case affirmed these principles. In actual application, keeping in consideration these four matters must mean that the High Court should find such reasons which may be termed compelling and substantial reasons or which may be deemed to be clinching and conclusive before it would be justified in upsetting an order of acquittal. The Supreme Court in Sanwat Singh's case affirmed these principles. In actual application, keeping in consideration these four matters must mean that the High Court should find such reasons which may be termed compelling and substantial reasons or which may be deemed to be clinching and conclusive before it would be justified in upsetting an order of acquittal. It would not be so justified merely because it, after considering the criterion of the Sessions Judge and his views, feels that a different view should be taken for reasons which are not so strong as to be classed into substantial or compelling reasons, which seems to be at par with such reasons against which practically nothing can possibly be said. It has been held that unless the findings of a Trial Court are unreasonable and perverse the High Court need not interfere with the order of acquittal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court may be summarised as under 1. In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction. 2. The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings in place of the findings recorded by the Trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. 3. Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the Trial Court that the accused is entitled to acquittal. 4. In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the Trial Court. 5. 4. In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the Trial Court. 5. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 6. The High Court has also to keep in mind that the Trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. 7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused. 8. Unless the High Court arrives at definite conclusion that the findings recorded by Trial Court are perverse, it would not substitute its own view on a totally different perspective. 9. The Appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the Trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the Trial Court, which may not be disturbed in the appeal, is such a view, which is based upon legal and admissible evidence. Only because the accused has been acquitted by the Trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. Probable view taken by the Trial Court, which may not be disturbed in the appeal, is such a view, which is based upon legal and admissible evidence. Only because the accused has been acquitted by the Trial Court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. The High Court would be justified in setting aside the acquittal when it is based upon surmises, conjectures and assumed contradictions. We are of the view that when the acquittal by the Trial Court is found on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court's interference would be justified. When the Trial Court has overlooked the important aspects of the case and has handled the evidence in a most unreasonable manner and reached the conclusion as it did on unsustainable grounds, the view of evidence taken by the Trial Court is manifestly erroneous and reasons assigned are utterly unsustainable. The Trial Court's judgment being perverse is liable to be set aside. When the reasoning is based on surmises and conjectures acquittal can be reversed. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possible arrived at by any Court acting reasonable and judiciously and is, therefore, liable to be characterised as perverse. When the reasons of Session Judge are perverse and the evidence does not afford scope for two views, the High Court may reverse the order of acquittal. When the reasons of Session Judge are perverse and the evidence does not afford scope for two views, the High Court may reverse the order of acquittal. We are of the firm view that where there has been manifest illegality in the approach of the Trial Court to the case and appreciation of evidence, the finding recorded by the Trial Court is wholly unreasonable and there has been a resultant miscarriage of justice, the reasons given by the Trial Court are far too slender for acquitting the accused, the acquittal of the accused recorded by the Trial Court would be set aside." After making appraisal of Trial Court record, we are of the firm opinion that the view taken by the learned Trial Court is equally possible and even if we take a different view, the view taken by the Trial Court deserves to be prevailed. The innocence of the accused is presumed under the law and finding of acquittal recorded by the Trial Court further strengthens the said presumption. 14. Learned Trial Court has delved into the matter thoroughly and arrived at a logical conclusion on the basis of evidence, facts and attending circumstances that prosecution has failed to prove its case beyond all reasonable doubt. Clearly and categorically, he has dealt with each and every aspects of the case and met the submission of learned Counsel for the prosecution. 15. The perusal of the record shows that when the I.O. reached at spot, he found accused respondent tied up with the rope on the joint of the tractor and trolley and Mangli Kachhi was found lying dead on the driver seat. His feet were under the driver seat and hands were under his belly. His head was sticked with the staring. His feet were under the driver seat and hands were under his belly. His head was sticked with the staring. A pool of blood was found on and below the driver seat and also on the earth and no blood whatsoever was found on the left mudguard where the deceased is said to be sitting at the time of assault although the Investigating Officer's evidence is confusing on this point, but the inquest report prepared by him suggests as if deceased was driving the tractor at the time of incident, the benefit of the aforesaid confusing position of the facts deserves to be extended in favour of accused especially when a strong contest has been made on record by accused suggesting that deceased was a driver of the tractor and it was he who was driving the same in the midst of night of the incident when some unknown persons have done him to death. 16. The case of the prosecution is that in the previous evening of the incident, informant Dharampal has gone to load the paddy of his friend Shyampal, r/o a different village Dharampur. After loading about 40 quintals of paddy in different bags returned to his house at 3.00 a.m., parked his tractor and early morning at about 6.00 a.m., he proceeded for Shahjahanpur. Under these scenario of facts, findings of the learned Trial Court, reasons and reasonings recorded by him to hold that there is no evidence on record to suggest that deceased Mangli Kachhi was in know of the fact that informant is to drive the tractor up to Shahjahanpur and therefore, he had no occasion to board the tractor early morning without getting himself eased appears to be probable view. The presence of faecal matter in his large intestine and digested food in his stomack and small intestine fortifies the findings recorded by learned Trial Court that the deceased was a driver of the tractor of the informant and he was murdered sometime during night. The fact that there was no blood stained on the wearing clothes of complainant has rightly been held by the learned Trial Court to be an indication that he was not present at the spot at the time of occurrence. 17. The fact that there was no blood stained on the wearing clothes of complainant has rightly been held by the learned Trial Court to be an indication that he was not present at the spot at the time of occurrence. 17. Likewise, learned Trial Court has rightly observed that the mudguard has no cushion and if Kaptan Singh and Mool Chand were sitting in the trolley over the paddy bags, deceased should have also within all human probability sit with them in the trolley over paddy bags and not on the mudguard where no blood was found but if the deceased himself was driving the tractor then there was no question of his sitting in the trolley. The most striking feature which weighed much to the learned Trial Court is that as to how accused was knowing that deceased would Accompany the first informant in his tractor early morning on the day of incident when the programme of deceased to go through the tractor was not disclosed to anyone other than the owner of the tractor and deceased. 18. The motive alleged against the accused to commit the murder of deceased is that in the previous evening when the accused was wondering and using filthy language in a drunkered state, deceased had raised objection to the conduct of deceased. There is no evidence that either the informant or Kaptan Singh or anybody else is a witness of the aforesaid incident of tokatoki as has rightly been observed by learned Trial Court. The prosecution witnesses have denied to have seen the incident of tokatoki in the previous evening in between accused and the deceased. 19. It has come in the evidence of Kaptan Singh and Mool Chand that during the incident of arrest of accused by them and also by the informant, the wearing shirt of accused was torn, but the evidence of Ajai Kumar, Assistant Jailer, District Jail, Shahjahanpur, based on hawalat register dated 19.3.1981, shows that accused was wearing kurta, baniyan, dhoti and angaucha at the time of admission in jail. If the accused was arrested in the manner claimed by the prosecution, his shirt was bound to be torn in the process. If the accused was arrested in the manner claimed by the prosecution, his shirt was bound to be torn in the process. The explanation given by Kaptan Singh (P.W.2) that his torn shirt was changed with the kurta provided by his wife at spot after his arrest, is not convincing because it is the constant case of the prosecution that after his arrest, his hands and waist were tightened with the rope after his arrest and he was in the same position till the arrival of I.O., who untied him from the joint of tractor and trolley and took him to police station. I.O. does not say that he allowed time to accused to change his kurta and probably he could not nave allowed. Admittedly, at the time of arrest of accused, his wife was not there and he could have reached at spot after getting the information of the incident in her village. There was no occasion for her to go to the spot along with a kurta because she could not have pre-known that the wearing shirt of accused was torn during his arrest and suppose that she brought the kurta then it was rather improbable to change his shirt and replace the same with kurta because his hands were tied throughout. The approach of learned Trial Court ignoring the said explanation of Kaptan Singh does not appear to be improbable or unreasonable. 20. The impugned judgment and order passed by learned Trial Court being a possible view, we refrain from interfering with it. Government appeal lacks merit and stands dismissed. Appeal Dismissed.