Point of Law: Scope of interference in the appeal against acquittal - while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, court of appeal would not take the view which would upset the judgment delivered by the court below. However, appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.

JUDGMENT :

Ramesh Sinha, J.

1. This criminal appeal has been filed by the State against the judgment and order dated 19.01.1984 passed by IInd Additional District & Sessions Judge, Barabanki by which the accused-respondents have been acquitted for the offence under sections 147, 148, 302, 149 I.P.C. in S.T. No. 410 of 1982.

2. Out of five accused persons three accused-respondents, i.e., respondent nos. 1, 2 and 5, namely, Rafiullah, Naimullah, Kalimullah have died during the pendency of the appeal and the appeal on their behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 19.10.2020. Hence this Court proceed to hear the appeal with respect to accused-respondent nos. 3 and 4, namely, Habibullah and Mohammad Ansar only.

3. The brief facts of the case are that an F.I.R. was lodged by one Haji Fazal-ur-rahman at police station Zaidpur, District Barabanki stating that his brother Misbah-ur-rahman was Chairman of town area Zaidpur. He was having enmity with one Dr. Habiullah and Sajid Ali with respect to election of town area and also with one Naimullah with regard to auction of a house. Rafiullah and Ansar Ahmad also belong to his party. On 30.5.1982 at about 9:30 p.m., Misbah-ur-rahman had gone to his old workshop (Karkhana) in which these days, Hakim Fatehpuri is residing. The informant, who is the cousin of Sri Misbah-ur-rahman, was sitting at the door of Misbah-ur-rahman along with Mohammad Sabir, Mohammad Muslim, Sultan Ahmad, Ali Mohammad and Atiq. When Misbah-ur-rahman did not return for a long time then the informant along with the said persons sitting at door of Misbah-ur-rahman, had gone in his search towards his workshop (Karkhana). When they reached on the road at the door of Mohammad Yaseen, they heard the shriek of Misbah-ur-rahman, i.e., 'bachao-bachao' on which they rushed towards the direction from where the shriek of Misbah-ur-rahman come and reached in front of the house of one Ramzan where they saw that Ansar Ahmad had tightly caught hold the neck of Misbah-ur-rahman from behind and one Rafiullah s/o of Rahmatullah fired shot at the chest of Misbah-ur-rahman from a close range. On the alarm raised by the informant and other persons, Dr. Habibullah, Kaleemullah and Naimullah, who were standing under the Pakar tree had threatened them for dire consequences in case they intervened, hence on account of fear, they did not move and Rafiullah and Ansar Ahmad fled away. Thereafter, Dr. Habibullah, Kaleemullah and Naimullah also fled away on a motorcycle. On the basis of said written report of Fazal-ur-rahman, an F.I.R. was registered at police station Zaidpur, District Barabanki as case crime no. 38 of 1982 under section 307 I.P.C. against five accused persons, namely, Rafiullah, Ansar Ahmad, Dr. Habibullah, Kaleemullah and Naimullah.

4. Just after the incident, the injured was taken to Primary Health Centre, Zaidpur at 11:05 p.m. by the informant and other persons where P.W. (3) Dr. Muneeruddin, the then Medical Officer, P.H.C., Zaidpur, had conducted medico-legal examination of the injured and had provided first aid to him. The doctor had also recorded the dying declaration of Misbah-ur-rahman in the presence of certain witnesses which has been marked as Ex. Ka-3. Since the condition of the injured was very serious, he was taken to Civil Hospital, Barabanki where P.W. (6) Dr. Shahjahan has given treatment to Misbah-ur-rahman at about 12:05 A.M., on 31.06.1982. As the condition of the injured was deteriorated, he was taken to Balrampur Civil Hospital, Lucknow where unfortunately at about 3:00 a.m., on 31.05.1982, he succumbed to his injuries.

5. P.W. (1) Haji Fazal-ur-rahman had informed the concerned police station about the fact that injured Misbah-ur-rahman had died at Balrampur Civil Hospital, Lucknow.

6. Sri S.N. Singh, the then Station Officer of police station, Zaidpur, who was entrusted with the investigation of the case, had completed the investigation and submitted charge