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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, KHATIM REZA, JJ.
Smita Kumari @ Smita Devi W/o Late Suresh Kumar @ Bablu – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 1381 of 2019
Decided On : 02-08-2022
APPEAL - Criminal Procedure Code - Section 372, Indian Penal Code - Sections 323/34, 302/34 - Arms Act - Section 27 - Summary of the acts and sections referenced and discussed by the court: The judgment discusses the appeal filed under Section 372 of the Criminal Procedure Code against the acquittal of the accused persons under Sections 323/34 and 302/34 of the Indian Penal Code. It also refers to the statutory right of the widow of the deceased to file the appeal under Section 2(wa) of the Criminal Procedure Code (Amendment) Act, 2008. The court also highlights the legal principles established in the case of Mallikarjun Kadagali vs. State of Karnataka, (2019) 2 SCC 752, regarding the absolute right of a victim to prefer an appeal against the order of acquittal without seeking leave to appeal.
Fact of the Case:
The case involves the appeal against the acquittal of the accused persons for the offences punishable under Sections 323/34 and 302/34 of the Indian Penal Code. The appeal was filed by the widow of the deceased, who was the informant's brother. The incident involved an attack on the deceased by the accused persons, resulting in his death.
Finding of the Court:
The court found that the prosecution failed to establish the allegations against the respondents nos. 2 to 5 beyond reasonable doubt. It noted apparent inconsistency in the evidence of prosecution witnesses and concluded that the trial court's finding did not suffer from any legal infirmity requiring the court's interference. As a result, the appeal was dismissed.
Issues: The main issue revolved around the establishment of the allegations against the respondents nos. 2 to 5 beyond reasonable doubt, and the statutory right of the widow of the deceased to file the appeal under Section 2(wa) of the Criminal Procedure Code (Amendment) Act, 2008.
Ratio Decidendi: The court applied the legal principle established in the case of Mallikarjun Kadagali vs. State of Karnataka, (2019) 2 SCC 752, regarding the absolute right of a victim to prefer an appeal against the order of acquittal without seeking leave to appeal. It also emphasized the well-settled principles for considering an appeal against acquittal, as outlined in various decisions of the Supreme Court.
Final Decision: The appeal was dismissed, as the court found no merit in it.
JUDGMENT :
KHATIM REZA, J.
1. Heard learned counsel for the appellant and learned counsel for the State.
2. This appeal has been filed under Section 372 of the Criminal Procedure Code against the judgment and order dated 16.09.2019 passed by the learned Sessions Judge Sheikhpura in Sessions Trial No. 118 of 2016 arising out of Mehus P.S. Case No. 03/2015 whereby the learned Sessions Judge has acquitted respondent nos. 2 to 5 of the offences punishable under Sections 323/34 and 302/34 of the Indian Penal Code.
3. The informant (PW-5) who happened to be the brother of deceased is no more. Accordingly, the widow of the deceased has filed this appeal against acquittal of the accused persons (Respondent Nos. 2 to 5). The statutory right to file the appeal to the widow of the deceased flows from Section 2(wa) of the Criminal Procedure Code (Amendment) Act, 2008.
4. The brief facts of the case are that on 13.03.2015 at about 02:00 pm, when the informant was engaged in the business in his shop, located near college gate, Mehus, the informant’s brother namely, Bablu Prasad Singh @ Suresh Kumar came out of his house and was proceeding towards Barbigha Bazar. At that point of time, accused Rishi Kumar was waiting with hoe (kudal) in his hand, accused Manoj Kumar was armed with lathi, Murari Kumar was carrying pistol in his hand, Rampravesh Singh also had pistol in his hand, Shashi Bhushan Singh had crow-bar (khanti) in his hand and Kanhaiya Kumar had a rod and they all attacked the informant’s brother. On hulla being raised, the informant rushed towards the spot. The accused persons assaulted the informant also. However, the informant saw his brother being attacked and wounded and who felt unconscious with his nose, ear and mouth bleeding. The accused persons fled away after committing the offence. The informant took his brother to referral hospital, Barbigha where, doctors referred to Patna. However, the next day at Patna, the informant’s brother died.
5. The incident led to filing of Mehus P.S. Case No. 03 of 2015 for the offences punishable under Sections 147, 148, 149, 341, 323, 307 and 506 of the Indian Penal Code and Section 27 of the Arms Act against respondent nos. 2 to 5 and others and on the death of Suresh Kumar (brother of the informant) Sections 323 and 302/34 of the Indian Penal Code were added.
6. The police after completion of investigation submitted charge-sheet no. 13 of 2015 for the offences punishable under Section 323/34 and 302/34 against the accused Rishi Kumar and the investigation with regard to respondents no. 2 to 5 was kept pending. Later on, charge-sheet no. 01 of 2016 under Section 323, 302/34 of the Indian Penal Code was submitted against Shashi Bhushan, Kanhaiya Kumar, Rampravesh Singh and Murari Kumar.
7. The Sessions Trial No. 84 of 2015 commenced against Rishi Kumar on 23.11.2015 and Sessions Trial No. 118 of 2016 started against respondent no. 2 to 5 on 15.05.2017 and the charges in both the Sessions Trials, charges were framed under Section 323/34, 302/34 of the Indian Penal Code respectively.
8. On assessing the evidences, the Trial Court found commission of offence under Section 304 part-II of the Indian Penal Code proved against Rishi Kumar who on sudden provocation was found to have given single blow by Kudal and that there was no evidence to suggest that he had repeated the blow. The medical evidence also corroborates one comminuted fracture at 2½” x 2” involving left parietal and left temporal bone and nature of injury suggested by the doctor caused by heavy sharp cutting weapon. The PW-1. PW-2 deposed in their evidence that there was altercation between the deceased and the accused persons that in the meanwhile Rishi Kumar gave a deadly blow. The trial court noticed the depositions of PWs. 3, 4 and 5 full of contradiction, on or scrutining of the evidence.
9. The medical evidence clearly suggest that there is no other injury on the body of the deceased save and except the head injury by sharp cutting wea
The main legal point established in the judgment is the absolute right of a victim to prefer an appeal against the order of acquittal without seeking leave to appeal, as per the legal principle estab....
The victim has an absolute right to prefer an appeal against the order of acquittal under Section 372 of the Criminal Procedure Code, and the prosecution must establish allegations beyond reasonable ....
The appellate court cannot overturn an acquittal unless the trial court's decision is perverse or fundamentally flawed, emphasizing the presumption of innocence and the burden of proof on the prosecu....
The main legal point established in the judgment is that in an acquittal appeal, the appellate court cannot substitute its own view unless the trial court's findings are demonstrably unsustainable.
The appellate court upheld the trial court's acquittal, emphasizing the necessity of clear evidence of abetment for conviction under Section 306 IPC.
The appellate court must respect the presumption of innocence and the trial court's findings unless there is a clear error or misreading of evidence.
The appellate court must respect the presumption of innocence and will not interfere with an acquittal unless the trial court's conclusions are unreasonable.
The appellate court cannot substitute its own view in an acquittal appeal unless the findings of the trial court are demonstrably unsustainable.
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