Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 18

IN THE HIGH COURT OF ALLAHABAD
Ramesh Sinha, J.
Lot Prasad - Appellant
Vs.
State of U.P. - Respondent
CRIMINAL APPEAL No. - 423 of 1995
Decided On : 10-01-2022

Advocates:
Advocate Appeared:
For the Appellant : I.B.Singh, Janardan Singh
For the Respondent:Govt. Advocate, Kapil Kumar Bhargava, Neeraj Kumar Tiwari, S.K. Singh Kalhans, Shikha Srivastava,Vijay Kr. Tiwari

Point of Law : False implication of the accused persons including the appellant cannot be ruled out on account of long standing enmity between the parties.

Headnote:
Indian Penal Code, 1860 - Section 302/34 - Code of Criminal Procedure, 1973 - Section 437-A and 161 – Offence of Murder – Act done by several persons in furtherance of common intention – Charged - Order of conviction - Instant appeal then came up for hearing before a Division Bench comprising Hon'ble and Hon'ble-II, J.J. (as they then were) - After hearing of the instant appeal, vide separate judgment and order dated (as he then was) was of opinion that appellant was liable to be acquitted from the charges levelled against him under Section 302/34 I.P.C. by giving him benefit of doubt and, as such allowed criminal appeal, and set-aside judgment and order dated passed by Sessions Judge, and acquitted him from charges levelled against him, whereas (as he then was) was of opinion that appellant/was rightly convicted for offence - Whether accused or his companion was there in way or not.
Finding of the Court :
Prosecution has not been able to fix identity of appellant by credible evidence as assailant of deceased, entering into further details of case will be futile - Moreover, three accused persons, have already been acquitted by the trial Court by giving benefit of doubt vide impugned judgment and order dated passed by the trial Court, hence appellant is also entitled for benefit of doubt - Since, identity of miscreants was not established beyond all reasonable doubt, this is a case where appellant is entitled to acquittal on ground of benefit of doubt.
Result: Appeal succeeds and is hereby allowed

JUDGMENT :

Ramesh Sinha, J.

(A) BACKGROUND/INTRODUCTION

1. Four persons, namely, Sadhu Prasad, Talluqdar, Lot Prasad (the appellant), and Shital, were tried by the Sessions Judge, Gonda in Sessions Trial No. 73 of 1992: State Vs. Sadhu Prasad and others, arising out of Case Crime No. 145 of 1990, under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “ I.P.C. ”), Police Station Wazirganj, District Gonda.

2. Vide judgment and order dated 20.07.1995, the Sessions Judge, Gonda acquitted accused Sadhu Prasad, Talluqdar and Shital from the charge of murder levelled against them, however, convicted the accused/appellant Lot Prasad under Section 302/34 I.P.C. and sentenced him to undergo life imprisonment. Against the aforesaid order of conviction and sentence dated 20.07.1995, accused/appellant Lot Prasad has filed the instant appeal before this Hon’ble High Court.

3. The instant appeal then came up for hearing before a Division Bench comprising Hon'ble Satyendra Singh Chauhan and Hon'ble Virendra Kumar-II, J.J. (as they then were). After hearing of the instant appeal, vide separate judgment and order dated 09.08.2017, Hon’ble Satyendra Singh Chauhan, J (as he then was) was of the opinion that appellant Lot Prasad was liable to be acquitted from the charges levelled against him under Section 302/34 I.P.C. by giving him the benefit of doubt and, as such allowed the criminal appeal, and set-aside the judgment and order dated 20.07.1995 passed by the Sessions Judge, Gonda and acquitted him from the charges levelled against him, whereas Hon'ble Virendra Kumar-II, J. (as he then was) was of the opinion that the appellant/Lot Prasad was rightly convicted for the offence under Section 302 I.P.C., however, since co-accused persons were acquitted by the trial Court for offence punishable under Section 302 read with Section 34 I.P.C., hence mention of Section 34 in the impugned judgment is not so material and accordingly, dismissed the instant appeal.

4. In view of aforesaid difference of opinion, the Division Bench has formulated following points of difference vide separate order dated 09.08.2017 and directed the office to place the record of the instant criminal appeal before Hon’ble the Chief Justice under Chapter VIII Rule 3 of the Allahabad High Court Rules for nomination of Bench :-

“(1) Whether the witnesses were in a position to identify the accused persons in the moon light from the distance as indicated by them in their statements.

(2) Whether the incident took place at the alleged time in view of the fact that pasty material was found in the stomach, which could not have been possible at 5:30 a.m. in the morning.

(3) Whether the conduct of the accused as contemplated under Section 8 of the Evidence Act requires consideration.

(4) Whether the prosecution has come out with true version of the incident.

(5) Whether the enmity on record was enough to implicate the appellant in accordance with law.

(6) Whether the appellant could have committed the offence single handedly.

(7) Whether the injuries tally with the manner of assault as alleged by the prosecution.

(8) Whether the case was improved after the postmortem report was received.

(9) Whether the initial case setup in the FIR was wholly changed in the statement recorded under Section 161 Cr.P.C. and in the Court.

(10) Whether PW-1 and PW-4 have stated the correct facts and whether there is contradiction in their statements.”

5. Subsequently, the aforesaid Division Bench of this Court has recalled the aforesaid points of consideration vide order dated 30.01.2018 in the manner as stated hereinbelow :-

“Heard learned counsel for the appellant and learned AGA. Attention of the Court has been drawn towards Chapter VIII Rule 3 of the Rules of the Court and Section 392 of Cr.P.C.

We have gone through both the provisions and we find that the portion of the order dated 09.08.2017 by means of which, points for consideration were framed, requires to be recalled. Accordingly, the sai