TaxTMI 
TaxTMI 
2022 (1) TMI 1396
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....m and Munna Ram. By order dated 30th June, 2021, the Fast Track Court sentenced Upendra Ram to undergo imprisonment for life with fine of Rs. 5000/- and in default of payment of fine he was further to undergo rigorous imprisonment for one year for the offence Under Section 302/34 read with Section 120B of the Indian Penal Code (for short, the 'IPC') and also sentenced to undergo rigorous imprisonment for one year for offence Under Section 504 of Indian Penal Code and further sentenced to undergo rigorous imprisonment for ten years each for the offence Under Section 3/4 of the Explosive Substances Act, 1908 and ordered that the sentences run concurrently. The Fast Track Court sentenced the Accused viz., Munna Ram and Mahendra Ram to death Under Sections 302/34 read with Section 120B of Indian Penal Code and Sections 3/4 of Explosive Substances Act, 1908, subject to confirmation by the High Court. The Fast Track Court however acquitted the other Accused viz., Fantus Mandal, Dhappu Ram and Chandrabhanu Prasad. 3. It is the case of the prosecution that on Thursday, 10th March, 2005, at about 5.00 pm, Accused Mahendra Ram, Upendra Ram, Munna Ram, Dhappu Ram, all being sons of....
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.... Procedure (for short, the 'Cr.P.C.') vide order dated 17th June, 2005. 6. The case was transferred to the Court of Additional District Judge-I, Munger and later on, to the Fast Track Court on 9th December, 2005. Thereafter, the charge for the concerned offences was read over and explained to the Accused in Hindi to which they pleaded not guilty and claimed to be tried. 7. The prosecution examined altogether ten witnesses and took note of Material Objects (MOs). Thereafter, statements of the Accused Under Section 313 Code of Criminal Procedure were recorded. All the Accused denied the alleged occurrence and submitted that they were innocent and had been falsely implicated. They contended that there were dues in respect of liquor taken by Ashok Yadav from the informant who was running an illegal liquor shop. The said dues were demanded from Ashok Yadav for which there was a scuffle between them and the family of the informant assaulted Ashok Yadav. As a result, some unknown persons became furious and hurled bombs and caused the alleged occurrence. That the associates of the informant had looted the tea shop of Accused Dhappu Ram and that the informant had falsely impli....
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....ded that the High Court has rightly perceived and assessed the evidence on record and as a result reversed the erroneous judgment of the Fast-Track Court. It was submitted that the Fast-Track Court failed to note that the evidence on record did not prove the case of the prosecution beyond reasonable doubt vis-à-vis the Accused and despite that death penalty had been imposed on two of the Accused and life imprisonment on another Accused which has been rightly reversed by the High Court by a reasoned judgment. Therefore, the impugned judgment would not call for any interference at the hands of this Court as there is no merit in these appeals. Hence, the appeals may be dismissed. 14. Having heard the learned Counsel appearing for the respective parties, the following points would arise for our consideration: (a) Whether the High Court was justified in reversing the judgment of conviction and sentence awarded by the Fast-Track Court, thereby acquitting all the Accused? (b) Whether the judgment of the High Court calls for any interference or modification by this Court? (c) What order? 15. The Fast-Track Court considered the case of the prosecution....
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....nd the third bomb exploded on the road. As a result, the public became furious and caught hold of an unknown person and assaulted him, which resulted in his death. It had come in the evidence that the said person was Ashok Yadav. (iii) That the name of Fantus alias Udai Prakash Mandal had not been found in the FIR and the witnesses had not testified against his involvement in the occurrence nor has there been any overt act alleged against him. (iv) No overt act had been alleged against Dhappu Ram and Chandrabhanu Prasad. (v) Consequently, Fantus Mandal, Dhappu Ram and Chandrabhanu Prasad were not found guilty of any offences alleged and they were acquitted. (vi) Considering the evidence on record, it was found that Upendra Ram, Munna Ram and Mahendra Ram were guilty and they were convicted and sentenced as stated above by the Fast Track Court. 19. In the appeals filed by the Accused and in the Death Reference No. 13/2008, the High Court, on considering the submissions made on behalf of the Accused as well as the State, noted at the outset as under: It is trite law that acquittal of a co-Accused cannot simpliciter be a ground for acqui....
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....by the Code and before reaching its conclusions upon fact, 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 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 in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with Rules and principles well known and recognised in the administration of justice. It was stated that the appellate court has full powers to review and to reverse the acquittal. 21. In Atley v. State of U.P. AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a simila....
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....d chopping the logic of preponderant probability to punish marginal innocents. 24. This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the Accused and stated as follows: While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions. The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person. 25. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110, this Court set o....
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....ng with a judgment of acquittal, as under: 7.... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions. 27. This Court in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the Accused and the Accused is entitled to get the benefit of doubt but if it decides to int....
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....appreciation of the evidence. 30. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows: A) Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the Accused, that the same may be reversed by this Court, exercising jurisdiction Under Article 136 of the Constitution. [State of U.P. v. Sahai AIR 1981 SC 1442] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan AIR 1979 (SC) 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and we....
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....ive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the Accused, thereby making it unnecessary on the part of the prosecution to establish 'motive.' [State of AP v. Bogam Chandraiah AIR 1986 SC 1899] ii) Where acquittal would result is gross miscarriage of justice: a) Where the findings of the High Court, disconnecting the Accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v. Pheru Singh AIR 1989 SC 1205] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC)] b) Where the Accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the Accused himself; or where Accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah AIR 1981 SC 1675] [Source: Durga Das Basu-"The Code of Criminal Procedure, 1973" Sixth Edition V....
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....ote Lal Mahto's betel shop which hit him on his head and as a result of which his head was blown off. That PW-2 also came in contact with the splinters of the bomb and was injured as a result of the same. That he was baffled after seeing the dead body of Chhote Lal Mahto and left the spot after closing his shop. However, during cross examination he has stated that he left the spot thirty minutes after the explosion. 34. He has also admitted that he is under police security as he has been threatened by the Accused that if he deposes against them, he must be ready to face the consequences. That is why he went to the police station the previous evening and has deposed under police security. He has stated that he does not recognise Uday Prakash Mandal who was present in the Court. PW-2 has stated that he is a tenant in the house of Rajesh, the informant and that he signed the affidavit that was prepared based on his statements which he had made as "advised" by his advocate. He has also admitted that he had not seen Rajesh, Naresh or any of their family members beating Ashok Yadav. That the people left the scene of occurrence after the altercation amongst them ended. He has state....
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....ed that he is not aware of what was written in the application to register FIR given by his brother as he was asleep when such an application was made. That, in his statement to the police, he has stated that Munna Rai and unknown persons came to his betel shop and started hurling abuses. That he does not remember whether he had told the Police that bombs were blasted by the Accused. 37. Umesh Prasad Rai is PW-4 who has spoken about the abuses of Mahendra Rai, Upendra Rai, Munna Rai, Dhappu Rai to the effect that whoever interfered with or obstructed their illegal work would be blown away by a bomb. Munna Rai then threw a bomb at the betel shop in which Chota Lal Mahto was sitting and as a result of which, his head blew up. Mahendra Rai then threw a second bomb which hit a passerby, O.P. Verma who was standing near M/s. Aditya Electronics and the third bomb was blasted by Upendra Rai which fell on the road and exploded. Thereafter, he went near the body of Chhote Lal Mahto and kept crying. On hearing the sound of the bombs, several people gathered at the place of occurrence. That the inquest report of Chhote Lal Mahto was made before him and he had signed it. 38. In his cr....
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....reason behind the incident is that the Accused were carrying on illegal business of liquor and he and his family members opposed the same and hence, there was a conspiracy and a common intention in pursuance of which his father was killed. That he filed a written complaint under his signature at the police station (Exhibit No. 2/2). The Death Review Report of the dead body of his father was prepared in his presence and he had signed it (Exhibit No. 4/1). He also identified six Accused persons present in the Court. 40. In his cross-examination, he has stated that he did not see Chandrabhanu Prasad at the place of the incident. He did not see Dhappu Rai from the start to the end of the incident. That the written complaint which he had prepared was read over and some of it was heard. He did not read it completely. The complaint was made in the police station in the evening at 06.00 p.m. That he had engaged a private lawyer to present his case. That the first information report was not read over to him. That he does not know completely as to what is written in the first information report. He also does not know as to what he had mentioned in the protest petition. That his lawyer had....
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.... was caught by the people and after giving him beatings put him almost to death. I do not recall that I gave the statement to the Police that I pulled up my sock and caught the hold of Munna Rai, who was freed by Chandrabhan and brother of Munna Rai and he ran away. I do not recall that I had stated that then Chandrabhan and Tappu said that our work is finished now and they ran away from there. It is not like that Mahendra, Upendra and Munna have not committed the incident and therefore, I am saying every time that I do not know. Further, in paragraph Nos. 25 and 26, PW-7 the informant (the Appellant) has stated as under: 25. It is not like that my brother, brother-in-law, Umesh and I together beat up the unknown criminals very badly near junction turn and they got annoyed and one of them said that just stay here we are coming back in few minutes and then they exploded the bombs. It is not like that just minutes after, criminals came there with bombs and while abusing to kill me, my brother, Umesh and brother-in-law and then we ran towards our house to save our life and then they threw the bomb, which fell near Aditi Electronics and we succeeded in escaping from there a....
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.... 33. It is not like that I made the statement to the SP that Naresh, Bablu, Aatish and I beat up Ashok Yadav very badly and when Munna came for his rescue, we also beat up him and then he ran away from there to save his life. (Objected to). With regard to the aspect of bombs being hurled, PW-7 at paragraphs 35 and 36 has stated as under: 35. It is incorrect to state that when first bomb exploded, stampede took place in the traffic and people started concealing themselves in order to save their life and shop started closing and we after saving our life ran away from there. It is incorrect to state that thereafter Ashok Yadav threw the bomb on my Pan Shop in its explosion my father had died and thereafter people of the village caught the hold of Ashok Yadav and beat up him till he died. 36. It is incorrect to state that quarrel took place with Ashok Yadav on demanding balance amount from him and he was beaten up and due to above reason, he exploded the bombs. 43. PW-9/Mani Lal Sahwas was the Sub-Inspector posted at P.S. Kotwali, Munger, on 10.03.2005. He has stated that he received information through telephone about the incident at about 17.15 hours and he, ....
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.... Dhappu Rai were abusing and saying that whoever objects to their illegal activity would be blown up. That Umesh Prasad did not mention in his statement that the second bomb was blown by Mahendra Rai which hit a passerby by name O.P. Verma who was standing near M/s. Aditya Electronics and his head was blown away. Similarly, there was no statement that third bomb was blasted by Mahendra Rai, which fell on the street and made a loud noise. 46. Also, in the Fardbeyan as well as in his statement, Rajesh Prasad, the Appellant herein, had not stated that Munna Rai, Uppendra Rai, Mahendra Rai and Dhappu Rai came near his father's betel shop and started abusing and upon retaliation by his father, there was heated argument and they threatened to blow him up with a bomb. 47. PW-8/Santosh Kumar Patel, in his examination-in-chief has stated that on 10.03.2005 at about 05.00 p.m. he was standing near his gate and he saw the Accused and Chhote Lal Mahto engaged in indecent and foul abuses and heard threats of the Accused to blow up the family of Chhote Lal Mahto with bombs and further, that Chhote Lal Mahto's head was blown up by Munna Rai. That O.P. Verma died in another bomb atta....
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....ts of the same locality and were well known to him, present at any time throughout the occurrence. He also refused to identify Fantus Mandal whose name arose during investigation. c) PW-2 stated that Chandrabhanu Prasad was a resident of the locality and was known to him but was not present during the entire occurrence. To the same effect is the statement of PW-3 and PW-4. PW-8 also stated that Dhappu Ram and Fantus Mandal were not present. d) However, PWs 1, 2, 3 and 4 spoke about the presence of Dhappu Ram and gave his name in their statements Under Section 161 of Code of Criminal Procedure. e) PW-9, the Investigating Officer, has stated that the informant in his statement Under Section 161 Code of Criminal Procedure had not stated anything about throwing of bombs by Mahendra Ram and Upendra Ram and neither had he named Dhappu Ram. f) That during the course of the trial, PW-3 had not named Dhappu Ram, Munna Ram and Mahendra Ram and PW-2 had likewise not named Munna Ram, Mahendra Ram, Upendra Ram and Dhappu Ram. g) PW-7 had not stated anything about any Accused being apprehended and beaten up. In his restatement also, he did not state t....
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.... (ii) While PW-1 and PW-3 were related to the deceased and signed the seizure list immediately after the occurrence, yet PW-3 had stated that he was not aware of the other signatory to the seizure list. (iii) The statement of PW-1, who was a witness to the seizure list as well as an eyewitness, was recorded by the police one and half months later with no explanation either by the witness or by the police. (iv) Similarly, statement of PW-4 who is an eyewitness and a witness to the inquest report of the deceased and who is stated to have drawn up the written report given to the police, was recorded by the police after two months and twenty days. The High Court has noted that there is no explanation for the delay, though he could be presumed to be present at the Police Station when the written report was handed over to the Police. (v) PW-2, the shop owner of the PCO booth adjoining the betel shop of the deceased, was also allegedly injured during the occurrence but there is no injury report. (vi) The contradiction in the evidence of PW-3 is noted as under: That PW-3 has stated that the police came within 20 to 25 minutes and took the....
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....m peripheral issues. The prosecution despite the nature of evidence given by its witnesses, did not consider it necessary to re-examine them Under Section 137 of the Evidence Act or cross-examine them Under Section 154 of the same. The illicit liquor trade rivalry revealed during trial between the two sides, leaves this Court satisfied that in the facts and circumstances of the case, the charge cannot be stated to have been proved beyond all reasonable doubt. On the contrary, the prosecution has created a cobweb for itself and enmeshed itself, the benefit of which has to go to the Accused. Unfortunately, the trial court ignoring all these crucial issues inverted the law to hold that the defence was based on surmises and conjectures to hold the Appellants guilty and there could not be two views of the occurrence to grant any benefit to the Accused. And all this, while unquestionably granting acquittal to Chandra Bhanu, Dhappu Ram and Fantus as a case of no evidence. This Court finds it difficult to uphold the conviction let alone the death sentence. The manner in which the trial proceeded as noticed above, leaves the impression that the prosecutio....