Pratap and Anr Vs. State of Uttar Pradesh  Insc 10 (8 January 2003)
& B.N.Agrawal. B.N.Agrawal, J.
appellants along with accused Surendra Pratap Chand and Kaushalendra Shahi were
charged and tried for offences punishable under Section 148/302/307/324/394 of
the Penal Code but were acquitted of all the charges by trial court. On appeal
being preferred by the State of Uttar Pradesh, the High Court reversed the order of acquittal in relation
to both the appellants and convicted them under Section 302 read with Section
34 of the Penal Code and sentenced to undergo imprisonment for life. They have
been further convicted under Section 307 read with Section 34 and Section 324
read with Section 34 of the Penal Code and each one of them was sentenced to
undergo rigorous imprisonment for a period of five years and one year
No. 1 has been also convicted under Section 394 of the Penal Code and sentenced
to undergo rigorous imprisonment for five years. The sentences, however, have
been ordered to run concurrently. So far the other two accused persons are concerned,
the order of acquittal passed by the trial court has been upheld.
case, in short, is that both the appellants are the sons of accused Surendra Pratap
Chand and accused Kaushalendra Shahi is their co- sharer. There was a long
standing enmity between the accused persons on the one hand and members of
prosecution party on the other inasmuch as appellant No. 1 got a case
instituted through his servant Ramdhari under Section 392/411 of the Penal Code
at Gorakhpur against Nagendra Pratap Shahi and Dhirendra Pratap Shahi, father
and uncle respectively of Vinay Kumar Shahi (PW 1)-the informant besides their
servants Rattan Yadav and Ganesh in which case 28th July, 1978 was the date
fixed in Gorakhpur court for appearance of the accused persons of that case. On
28th July, 1978, Dhirendra Pratap, Rattan (PW 2)
and Ganesh along with one Lallu Prasad Gupta had gone to appear in the said
case and after attending the court, they stayed at Gorakhpur during night. The informant-Vinay
Kumar, who was a student of LL.B., was at Gorakhpur from before. On 29th July, 1978, all the aforesaid persons along with Vinay
Kumar (PW 1) and Rajdeo (PW 4) left Gorakhpur at 8.30 a.m. for their village by
a Jeep bearing No. UTA 2081 which was being driven by its driver Sita Ram (PW
front seat of the Jeep was occupied by Dhirendra Pratap, Lallu Prasad, Vinay
Kumar (PW 1) and Rajdeo (PW 4) besides Sita Ram, driver of the Jeep.
other persons including Rattan (PW 2) were occupying rear seat of the Jeep.
about 9.00 a.m., when the Jeep crossed Jamura Nala bridge,
another Jeep of black colour came from the opposite direction and stopped near
the speed breaker. The appellants and other two accused persons referred to
above armed with guns got down from the said Jeep and out of them, the
appellants started firing on the members of the prosecution party who were
sitting on the front seat of the Jeep as a result of which Dhirendra Pratap, Lallu
Prasad, Sita Ram (PW 3) and Rajdeo (PW 4) received injuries. Accused persons
thereafter are said to have fled away whereupon all the four injured persons
were taken to Khajani police station by Vinay Kumar (PW 1), who is said to have
made over a written report there at 9.30 a.m. on the basis of which first
information report was drawn up against the accused persons under Section 307
of the Penal Code.
Rajdeo Singh (PW 4) was sent to Primary Health Centre, Khajani, for treatment
whereas other three to District Hospital, Gorakhpur. But on the way, Dhirendra Pratap
and Lallu Prasad succumbed to their injuries and when they reached District Hospital, Gorakhpur, doctor declared them dead.
Therefore, the case registered by the police under Section 307 of the Penal
Code was converted into one under Section 302 of the Penal Code.
police after registering the case took up investigation and on completion
thereof submitted charge sheet against all the four accused persons including
the appellants on receipt whereof learned magistrate took cognizance and
committed the accused persons to the court of Sessions to face trial.
of the accused persons is that they are innocent, no occurrence as alleged had
taken place and deceased Dhirendra Pratap, who was a history sheeter, might
have been done to death at the instance of some one in the dead of night in
some other manner of occurrence and they have been falsely implicated in the
present case out of animosity.
trial, the prosecution examined twelve witnesses in all, out of whom, Vinay
Kumar (PW 1) is the informant and Rattan (PW 2) is his servant, both of them
claimed to be eyewitnesses of the occurrence. Sita Ram (PW 3) and Rajdeo (PW 4)
have been declared hostile and have not supported the prosecution case showing
complicity of the appellants and other accused persons with the crime. Dr. Purushottam
Tiwari (PW 5) is said to have examined the injuries of PW 4. Dr. D.P.Gupta (PW
6) and Dr. S.K.Srivastava (PW 8) are said to have held postmortem examination
on the dead bodies of Dhirendra Pratap and Lallu Prasad respectively. Shijor
Prasad (PW 7) and Ram Pratap Singh (PW 10) are the formal police witnesses who
took the dead bodies for postmortem examination. Jung Bahadur Yadav (PW 9) is
the head constable who had drawn the first information report. Dr. K.K.Mal (PW
11) is the doctor who examined another injured Sita Ram (PW 3). S.I.Nanhu Ram
(PW 12) is the investigating officer. The defence, however, examined one Thakur
Prasad Yadav as DW 1 on whose statement, certain documents were exhibited
showing complicity of deceased Dhirendra Pratap in six cases which were
instituted prior to the date of the present occurrence. Upon conclusion of
trial, all the accused persons were acquitted by the trial court but the High
Court, on appeal being preferred by the State, convicted the appellants as
stated above. Hence this appeal.
Kumar, learned Senior Counsel appearing in support of the appeal submitted that
the trial court passed the order of acquittal after fully considering the
evidence and doubting the veracity of the prosecution case and disbelieving the
witnesses by giving cogent reasonings and the High Court was not justified in
reversing the order of acquittal more so when view taken by the trial court was
reasonable one and cannot be said to be perverse. On the other hand, learned
counsel appearing on behalf of the respondent-State submitted that the High
Court was quite justified in interfering with the order of acquittal.
order to appreciate the submissions, it would be expedient to refer to reasonings
of the trial court while recording acquittal and the same are enumerated
According to the prosecution case and evidence only those members of
prosecution party had received injuries who were sitting on the front seat of
the Jeep, nobody who was sitting on the rear seat of the Jeep had received any
injury and the accused persons are said to have fired from the front side of
the Jeep. In the opinion of Dr. D.P.Gupta (PW 6), one of the firearm injuries
received by the deceased Dhirendra Pratap was on the back side of his body.
Further, Dr. K.K.Mal (PW 11), who examined PW 3, found that this witness had
also received one of the injuries by firearm on his back side. The
investigating officer (PW 12) has not stated anywhere in his evidence that he
found any hole on the front seat of the Jeep and in view of the fact that none
of the persons, who was sitting on the rear seat of Jeep, had received any
injury, the medical evidence that the aforesaid two persons had received
injuries on the back side as well makes the prosecution case highly doubtful,
more so when guns were fired from front side of the jeep.
Dr. Purshottam Tiwari (PW 5), who examined injured PW 4, opined that injury
Nos. 1 and 3 received by him were caused by hard and blunt object and according
to the prosecution case and evidence, the accused persons were armed with guns
only and no other weapon. This circumstance creates doubt regarding the veracity
of prosecution case.
The investigating officer (PW 12) who inspected the ill-fated Jeep has nowhere
stated in his evidence that he found any mark of firing thereon.
The reason for stay during night at Gorakhpur for settling accounts of Sopai Ghat
settlement was not mentioned by the informant in the first information report
nor the said fact was stated by any other witness in his statement made before
the police but has been disclosed by the witnesses for the first time in court.
According to the evidence of witnesses, hospital was on way to the police
station but no reason whatsoever has been assigned why the four injured persons
were taken to the police station first and not the hospital. Further, it does
not appear why the police referred three injured persons to Gorakhpur hospital instead of first referring
them to Khajani hospital which was nearby the police station for giving them
first aid. These facts make the prosecution case that the four injured persons
were taken by PW 1 to the police station suspicious.
Out of the four persons who claimed to be eyewitnesses to the alleged
occurrence, PWs 3 and 4 have been declared hostile and did not support the
prosecution case showing complicity of the appellants with the crime in any
Another eyewitness is PW 1-the informant himself. This witness is nobody else
than nephew of the deceased Dhirendra Pratap and appellant No.1 got a case
filed under Section 392 of the Penal Code against the deceased Dhirendra Pratap
who is uncle of this witness besides his father Nagendra Pratap and servant
Rattan (PW 2) and Ganesh and the said case was pending on the date of the
alleged occurrence. This witness might have implicated the accused persons to
put pressure upon them so that they may not pursue the aforesaid criminal case
instituted against his family members. PW.1 admitted that he was examinee of
LL.B. examination which were scheduled to be held only after few days with
effect from 7th August, 1978 and the reason for his accompanying the members of
the prosecution party in the Jeep to his village home was to bring foodgrains
for his consumption, though he had employed a servant who could have been sent
to the village for bringing the same. It was quite unnatural for this witness
to accompany the deceased for the purpose enumerated above.
aforesaid fact shows that this witness might not have accompanied the deceased Dhirendra
Pratap in the Jeep and had alleged the reason for going to the village only to
become a witness to the alleged occurrence. Apart from that, PW.1 has stated in
the first information report that he was sitting on the front seat of the Jeep
but according to his statement in court, he was on the back seat of the Jeep.
This witness has stated that members of prosecution party had gone to appear in
the case filed against them under Section 392 of the Penal Code in which 28th
July, 1978 was the date fixed but his statement has been contradicted by PW 2
who stated that on that day they had gone to Gorakhpur for making inquiry about
the date fixed in the case. From these facts, presence of PW 1 at the alleged
place of occurrence becomes highly doubtful.
Another person, who claimed to be eyewitness, is PW 2. He is undisputedly
servant of PW 1 and accused in case filed under Section 392 of the Penal Code
at the instance of appellant No.1 which was pending on the date of the alleged
occurrence. This witness had a motive to falsely implicate the accused persons
to put pressure upon them so that they may not pursue the said case. Apart from
that, the case in consolidation was pending on the date of occurrence between
Ram Singh, cousin of accused Kaushalendra Shahi, who is co-sharer of other
accused persons, and this witness in which accused Kaushalendra Shahi was
taking steps on behalf of Ram Singh. PW.2 stated before the police that he had
gone to Gorakhpur on 28th July, 1978 for doing some personal work but in court he has stated
that he had gone to Gorakhpur to make inquiry about the date
fixed in the case under Section 392 of the Penal Code. That apart, according to
PW 1, the members of prosecution party had gone to Gorakhpur for appearing in the case which was
fixed for 28th July,
1978 but even
according to the statement of this witness, which was made for the first time
in court, he had gone to Gorakhpur for making inquiry regarding the
date fixed. This witness has for the first time in court disclosed the reason
for his stay during night at Gorakhpur. He
has nowhere stated before the police that he stayed during night at Gorakhpur for the purposes of settling
accounts of Sopai Ghat settlement.
The motive for occurrence alleged is two fold. Firstly, it has been alleged
that case under Section 392 of the Penal Code was instituted at the instance of
appellant No.1 against PW 1, PW2, deceased Dhirendra Pratap, uncle of PW 1 and
his father Nagendra Pratap which was pending on the date of occurrence.
it was alleged that the deceased had taken settlement of Sopai Ghat and in the
bid, appellant No. 1 had also participated but the said fact is not supported
by bid sheet (Ex.kha 5) wherein name of this appellant was never mentioned and
further according to PW 1, the said settlement in favour of the deceased had
been cancelled before the date of the alleged occurrence. The aforesaid grounds
could not be taken to be motive for the alleged occurrence but the same could
be grounds for false implication of the accused persons.
Undisputedly, the deceased Dhirendra Pratap was a history sheeter and he was
accused in six cases which were pending from before the date of the alleged
occurrence. In view of the aforesaid infirmities in the prosecution case and
the evidence, possibility of the deceased Dhirendra Pratap being done to death
in the dead of night by members of the rival group cannot be ruled out.
heard learned counsel appearing on behalf of the parties, we are of the opinion
that the trial court was quite justified in acquitting the appellants of the
charges as the view taken by it was reasonable one and the order of acquittal
cannot be said to be perverse. It is well settled that appellate court would
not be justified in interfering with the order of acquittal unless the same is
found to be perverse. In the present case, the High Court has committed an
error in interfering with the order of acquittal of the appellants recorded by
the trial court as the same did not suffer from the vice of perversity.
result, the appeal is allowed, impugned judgment passed by the High Court
convicting the appellants is set aside, the order of their acquittal rendered
by the trial court is restored and they are acquitted of all the charges.
appellants, who are on bail, are discharged from the liability of bail bonds.