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2020 DIGILAW 588 (ALL)

Hari Shankar v. State of U. P.

2020-02-24

DINESH PATHAK, SUNITA AGARWAL

body2020
JUDGMENT : Dinesh Pathak, J. 1. Heard Shri M.S. Ansari holding brief of Shri K.C. Tripathi, learned counsel for the applicant on leave to appeal. 2. Present criminal application for special Leave to file Appeal under Section 378(4) Cr.P.C., has been preferred by the present applicant for challenging the judgment and order dated 3.12.2019 passed by the Special Judge, U.P. Dacoity Affected Areas Act/Additional Sessions Judge, Court No. 4, Chitrakoot in Complaint No. 02 of 2016 (Hari Shankar v. Jhandilal and others), acquitting all Five accused persons (respondent Nos. 2 to 6) of the charges under Sections 395 & 397 IPC. 3. By means of the present application, the applicant is beseeching for special leave to appeal arising out of Complaint No. 02 of 2016 (Hart Shankar v. Jhandilal and others) moved by Hari Shankar, complainant/applicant herein, against his brother Jhandilal (respondent No. 2) and three nephews namely Anantu S/o. Jhandilal (respondent No. 3), Mahendra S/o. 'Jhandilal (respondent No. 4), Uma Shankar S/o. Jhandilal (respondent No. 5) and brother's wife namely, Besaniya w/o Jhandilal (respondent No. 6) respectively, levelling allegations that his brother is keeping vulture eye over his landed property, money and bank balance and to grab it, often harass him and beaten him up many times by hired goons and intending to kill him. The complainant is aged about 75 years, having two wives and has adopted one Prabhakar as his son. 4. On 26.5.2016 at about 8:00 p.m. while he was inside the house with his wives, all the accused persons have latched the north door of his house and set upon them with lethal arms, with intention to kill them and tried to broke the door with Axe to commit robbery. When his family members raised alarm, their neighbours namely Pappu s/o. Siddha Gopal, Baleshwar s/o. Chunni Lal and other persons came on the spot and saw the incident. The applicant herein alongwith his family members went to the Police Station to inform about the incident but they did not pay any heed to his grievances. Thereafter, he moved representation, through registered post, to the Superintendent of Police, Chitrakoot and the District Magistrate, Chitrakoot but no action was taken against the accused persons. Ultimately, he filed complaint before the competent Court to ventilate his grievances. Thereafter, he moved representation, through registered post, to the Superintendent of Police, Chitrakoot and the District Magistrate, Chitrakoot but no action was taken against the accused persons. Ultimately, he filed complaint before the competent Court to ventilate his grievances. After considering the statement of complainant-Hari Shankar under Section 200 Cr.P.C. and his witnesses namely Guddi (PW-1) and Chanda (PW-3) given under Section 202 Cr.P.C., learned Court below has taken cognizance of the matter and issued summons against all five accused persons and framed charges against them under Sections 395 and 397 IPC. 5. In order to substantiate its accusation, prosecution has examined as many as three witnesses. 6. PW-1, Guddi (w/o complainant), deposed that on 26.5.2016 at about 8:00 p.m. she alongwith husband and Chanda were present in the house. Accused persons namely Jhandilal, Anantu, Mahendra, Uma Shankar and Besaniya latched the north door of the house and attacked on the house armed with theft gun and other lethal arms, attempted to broke the door of house with intention to kill all family members and to commit dacoity. It is further stated by PW-1 that the accused persons always threatened to kill her family members in the greed of landed property and bank balance. Moreover, they can kill her adopted son at any time. She further stated that the accused persons always intimidated her husband for transferring his entire landed property and bank balance in favour of Jhandilal and to fulfil their greed, they came in the night at around 8:00 p.m. on 26.5.2016 and attempted to kill and caused grievous hurt to her family members. 7. PW-2, Hari Shankar (Complainant) has stated that the incident took place about 3-4 years back. Jhandilal, who wanted to grab everything, alongwith Anantu, Mahendra, Uma Shankar and Besaniya (w/o Jhandilal) had broke the door and forcibly entered into his house. He further states that Jhandilal was armed with gun and Mahendra was having Axe and Besaniya (w/o Jhandilal) was pelting stones. All the accused persons did such offence to grab his property and became reactionary due to adoption of a son. Accused Jhandilal is the real brother of Hari Shankar (complainant). Previously, Jhandilal had scuffled with the complainant and often beaten him up by hired goons. On raising alarm by his wife, Baleshwar and other person came on the spot. Thereafter, all accused persons fled away. Accused Jhandilal is the real brother of Hari Shankar (complainant). Previously, Jhandilal had scuffled with the complainant and often beaten him up by hired goons. On raising alarm by his wife, Baleshwar and other person came on the spot. Thereafter, all accused persons fled away. He went to the police station to get the report registered and also moved representation, through registered post to the Senior Superintendent of Police, Chitrakoot but nothing happened. In absence of any action being taken, he moved a complaint before the competent Court. 8. PW-3, Chanda (second wife of complainant) has stated that the incident took place three years ago in the night at about 8:00 p.m. Accused persons had broke the door of her house. Jhandilal was armed with gun and Anantu was armed with Tamancha (country made pistol), Uma Shankar was armed with Sabbal, Mahendra was armed with Axe and Besaniya had stones. Besaniya had threatened to cut the family of the complainant into pieces. Anyhow, life of Prabhakar (adopted son) could be saved. At the time of incident, co-villager namely Urmiliya came there but she was threatened by the accused. 9. The accused persons have made their statement under Section 313 Cr.P.C. showing their innocence and state that they have been falsely implicated in the present case and due to enmity, false statement has been given by the complainant and his family members. Jhandilal stated that he is a teacher in a High School in District-Umaria, M.P. and is residing there. Mahendra and Umashankar have stated that they are crippled and living outside. 10. On behalf of the accused, some documentary evidence have been adduced relating to medical certificate of disability of Mahendra Kumar and Uma Shankar etc. 11. After considering the documentary evidence as well as the surrounding circumstances, the Trial Court had rejected the complaint vide impugned order dated 3.12.2012 acquitting all five accused persons for the offences under Sections 395 and 397 IPC. 12. Learned counsel for appellant had submitted that the Trial Court had not properly weighed the evidences adduced on behalf of complainant and based its judgment and order only on surmises and conjectures. Minor contradictions in the statements of witnesses ought not have led to acquittal of accused persons. 12. Learned counsel for appellant had submitted that the Trial Court had not properly weighed the evidences adduced on behalf of complainant and based its judgment and order only on surmises and conjectures. Minor contradictions in the statements of witnesses ought not have led to acquittal of accused persons. He further contended that Trial Court had failed to consider that complainant's younger brother alongwith his family members had committed the offence with ill-will to grab the property of his elder brother (complainant), who is issueless and had adopted a son. Further submission is that the statements of the prosecution witnesses namely, PWs-1, 2 and 3 are sufficient to hold the accused persons guilty. He further submitted that Jhandilal (younger brother of complainant) is a greedy man and with an intention to grab the property of complainant, he had committed the said offence. 13. We have carefully considered the submissions advanced by learned counsel for appellant and perused the impugned order. 14. As per the complaint version, Jhandilal, younger brother of Hari Shankar (complainant), was keeping vulture eyes over the property of his elder brother (complainant), who is a senior citizen aged about 75 years, and having two wives. The complainant had adopted one son namely, Prabhakar. Accused Jhandilal was not happy with that adoption. With an intention to grab the entire property of Hari Shankar (complainant), while he was present inside the house alongwith his wives, Jhandilal alongwith his wife and sons, broke the door and entered the complainant's house, and attacked with an intention to kill them and to perpetrate robbery. On alarm being raised by complainant and his wives some neighbours including Pappu and Baleshwar came on the spot and witnessed the said incident. 15. After considering the statements of prosecution witnesses and circumstances of the case, learned Trial Court found no ground to hold the accused guilty and pointed out several discrepancies and contradictions in the statements of witnesses and circumstantial evidences with respect to manner and place of occurrence, presence of witnesses and specific role of the accused persons, which are being detailed as follows: (1) In complaint, it is averred that the accused persons did not enter the house, but in the statement recorded under Section 244 Cr.P.C., complainant had stated that the accused persons forcibly entered into the house and punched him. Apart from that, in the statement recorded under Section 246 Cr.P.C., the complainant had stated that after entering into the house, for half an hour they thrashed the complainant and his wives. (2) First wife of the complainant namely, Guddi (PW-1) stated that the accused did not enter the house and had not scuffled with her. Same thing has been stated by the complainant's second wife, Chanda (PW-3), in her cross-examination, that the accused did not enter the house and had not scuffled. (3) With respect to the injuries, it has been stated by PW-2 that he and his both wives had sustained injuries and they were medically treated. PW-1 stated that the complainant had sustained injury while trying to stop a stone, thrown on him, but he did not get any medical treatment. Whereas, PW-3 in her statement supported the version of P W-1, that the complainant (PW-2) had sustained injury while stopping a stone, but he did not get any medical treatment. (4) PW-3 stated that they were inside the house and the accused persons were outside the house, at the relevant date and time of incident. On the contrary, PW-2 (complainant) stated that the accused broke the door and entered the house and scuffled with them about half an hour. He had identified the accused persons in the electricity light. Apart from that, PW-3 stated that she peeped through the hole of door and identified the accused. (5) In complaint, it is mentioned that Baleshwar and Pappu have seen the incident, who came on the spot on hearing alarm raised by the complainant's wives. During his cross-examination, the complainant had stated that Baleshwar and Pappu came on the spot, but out of fear they returned back and they came again in the next morning. PW-1 stated that at the time of the incident Baleshwar was not present at the place of occurrence, rather he and Pappu came in the next morning. PW-3 stated that Baleshwar and Pappu were not present at the time of the incident and they had not seen the incident. (6) PW-1 and 3 stated that several villagers had seen the incident but PW-2 stated that no person of the village had seen the incident. 16. PW-3 stated that Baleshwar and Pappu were not present at the time of the incident and they had not seen the incident. (6) PW-1 and 3 stated that several villagers had seen the incident but PW-2 stated that no person of the village had seen the incident. 16. In this view of the matter, learned Trial Court has pointed out several discrepancies in the statements of witnesses with respect to the place of incident, sequence of incident, witnesses of incident and involvement of the accused persons in the incident After considering the statements of prosecution witnesses and entire fact and circumstances of the case, learned Trial Court has come to a conclusion that no case is made out against the accused persons for commission of the offences under Section 395 and 397 IPC. 17. After carefully scrutinizing the impugned judgment, we express our agreement with the findings of the Trial Court that there are contradictions in the statements of PWs-1, 2 and 3 with respect to the chronology of events, involvement of accused persons in the offence and presence of witnesses at the place of occurrence. Statements of PW-1 (complainant), recorded at different stages of the proceeding i.e. under Sections 200, 244 and 246 Cr.P.C; respectively, and the complaint version, are self contradictory. As per complaint version, accused persons had tried to break the door with an Axe, which was seen by the witnesses, Pappu and Baleshwar, who came on the spot on hearing alarm raised by the complainant's wives. Meaning thereby, the accused could not enter the house, but on the contrary, in his statement recorded under Section 244 Cr.P.C., the complainant had categorically stated that at the time of occurrence, accused persons had broke the door with an Axe, forcibly entered his house and scuffled with him and his both wives. He further stated that he fell down on being punched by accused Jhandilal. He further stated that while his wives had raised alarm, Baleshwar and another person came inside the house, and thereafter, accused persons fled away. In his statement recorded under Section 246 Cr.P.C., the complainant had stated that Baleshwar and Pappu came on the next morning at 8.00 a.m. In his cross-examination, he stated that Baleshwar was inside the house. There were six more persons, armed with deadly weapons, alongwith accused Jhandilal and he had identified them in the electricity light. In his statement recorded under Section 246 Cr.P.C., the complainant had stated that Baleshwar and Pappu came on the next morning at 8.00 a.m. In his cross-examination, he stated that Baleshwar was inside the house. There were six more persons, armed with deadly weapons, alongwith accused Jhandilal and he had identified them in the electricity light. He further stated that he and his family members had sustained injuries and got medical treatment. In his cross-examination, he had further stated that no co-villager had seen the incident, inasmuch as, no one dared to come there due to fear of the accused persons. 18. Testimony of PW-2 is not corroborated by other prosecution witnesses. PW-1 and PW-3 have made contradictory statements to that of PW-2. PW-1 stated that Baleshwar was husband of her sister and he was not present at the time of incident. In her cross-examination, she stated that there has been dispute between two brothers i.e. complainant and accused Jhandilal for the last 10-15 years. At the time of the incident, neither the accused barged into the house nor did assault anyone, or looted the household articles. They had hit the door with an Axe only once. At the time of the incident, the victim party was inside the house and accused persons were outside. She had further stated that Pappu and Baleshwar had opened the door while they came in the next morning. PW-3 Chanda had stated in her cross-examination that the incident did not take place in the presence of Baleshwar and Pappu. During the incident, accused did not barge into the house and there was no scuffle between the parties. Door of the house was not opened rather, there was some scratch on it due to the alleged single hit by an Axe. No one had sustained any injury but at a subsequent stage, she stated that Hari Shankar (complainant) had sustained injury by pelting of a stone on him. 19. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views on appreciation 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. While considering the scope of interference in an appeal or revision against acquittal, it has been held by the Supreme Court that if two views on appreciation 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 matter of State of Karnataka v. K. Gopalkrishna, (2005) 9 SCC 291 , the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under: "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 per-. verse 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." 20. In Sudershan Kumar v. State of Himachal, (2014) 15 SCC 666 , the Hon'ble Supreme Court observed thus: "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 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: "37. In Chandrappa v. State of Karnataka, (2005) 9 SCC 291 , this Court held: (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (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. (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. (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. (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. (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." 32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder: "39. The following principles emerge from the cases above: (1) 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. (2) 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. (3) 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. (3) 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. (4) 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. (5) 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." 21. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737 , the Supreme Court reiterated the same in paragraphs 36 and 37 as under: "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." 22. In this view of the matter, we find that the prosecution had failed to make out the true genesis of the crime. There is inconsistency in the statements of the prosecution witnesses, who had given contradictory statements with respect to the chronology of events relating to the incident. For instance, they were not sure with respect to the place of presence of the accused persons as to whether they were inside the house or outside the house and as to whether both parties were involved in the scuffling or not? There is also some confusion with respect to the presence of witnesses at the place of occurrence on the relevant date and time. PW-1 once stated that on hearing alarm raised by his wives, Pappu and Baleshwar came on the spot, but quite surprisingly at another place, he had stated that Pappu and Baleshwar went back due to fear and they again came back in the next morning. PW-1 once stated that on hearing alarm raised by his wives, Pappu and Baleshwar came on the spot, but quite surprisingly at another place, he had stated that Pappu and Baleshwar went back due to fear and they again came back in the next morning. PW-2 and PW-3 have clearly worded that Baleshwar and Pappu were not present on the spot and they came in the next morning and opened the door of their house. Prosecution is also not sure with regard to the presence of co-villagers at the place of occurrence. It is very astonishing and ridiculous that the prosecution had not produced Baleshwar and Pappu, who have been named as independent eye-witnesses of the incident, in the witness box. It is admitted case of the prosecution that Hari Shankar and Jhandilal are real brothers, therefore, possibility of dispute between them with regard to property cannot be ruled out, but in the present matter, genesis of occurrence as created by the prosecution appears to be vague and cloudy. As per prosecution, younger brother Jhandilal was trying to kill his elder brother Hari Shankar (complainant) with a clear intention to grab his property despite the fact that the complainant had already adopted a son namely, Prabhakar, who as per statements of PWs-2 and 3 was the son of Baleshwar. At the time of occurrence, Prabhakar was kept behind the doors in the house to save his life. It is very astonishing that Baleshwar, who is natural father of Prabhakar, did not even bother to come in the witness box to support his own son. Apart from that, Prabhakar, who could have been a very important witness as he was stated to be present at the place of occurrence i.e. house of complainant, on the relevant date and time of incident, had also not been produced in the witness box. No independent witness had been produced to corroborate the statement of PW-2. On the contrary, PW-3 had admitted that the accused persons did not enter into their house and had not looted anything therefrom. 23. After careful consideration of the impugned judgment and entirety of facts and circumstances of the case as available on record, we are of the considered view that the prosecution had failed to discharge its burden to prove its accusation beyond reasonable doubt. There are inconsistencies in the statements of the prosecution witnesses. 23. After careful consideration of the impugned judgment and entirety of facts and circumstances of the case as available on record, we are of the considered view that the prosecution had failed to discharge its burden to prove its accusation beyond reasonable doubt. There are inconsistencies in the statements of the prosecution witnesses. The deposition of prosecution witnesses are not worthy of credibility and are explicitly unreliable. 24. From the facts and circumstances of the case, it cannot be inferred that the accused persons entered the house of the complainant and perpetrated the crime attempting to cause death and grievous hurt to the complainant and his family members. In such a situation of fact, accused persons i.e. respondent Nos. 2 to 6 are entitled to get benefit of doubt and their innocence could easily be inferred. There are no substantial and compelling reasons to reverse the order of acquittal passed by the trial Court. Thus, we find no good ground to interfere in the finding of fact returned by the Court below in favour of the accused persons. No case made out for granting special leave to appeal against the order of acquittal. 25. In the light of aforesaid reasons and observations, this application for Leave to Appeal, is hereby refused. In the result, present criminal appeal is dismissed in limine.