State of U.P. vs Chotay Sing and Others

This leave to appeal of 1994 arises out of a judgment dated 21-04-1994 in Sessions Trial Nos. 231 of 1991 recording acquittal of accused-respondent Jagdish Singh while convicting accused-respondents Chhotey Singh and Vijay Singh for an offence u/s 304/34 I.P.C. and awarding a sentence of 10 years'' R.I. with a find of Rs. 1,000/- each.

Learned State Counsel has preferred this leave to appeal with composite prayer for enhancement of sentence in respect of convicted accused persons and for setting aside the judgment in respect of acquittal of accused Jagdish Singh.

We have heard learned Counsel for State and perused the trial court judgment as also the judgment dated 21-03-2003 of this Court delivered in Criminal Appeal Nos. 189 of 1994 in the case of convicted accused-respondents Chhotey Singh and Vijay Singh.

Learned State Counsel submitted that there is no justification for recording conviction u/s 304/34 I.P.C. in stead of 302/34 I.P.C. and further that the nature of offence is such that the Court should not have taken a lenient view for awarding a sentence of 10 years with fine of Rs. 1,000/- to each of the convicted accused respondents.

On a careful consideration of the submissions of learned Counsel, at the outset, we would like to make it clear that the charge itself was framed u/s 304 IPC, though the challan was laid u/s 302/34 I.P.C. If, the State was aggrieved, it should have filed a revision against the framing of charge but we find no such move on record. While appreciating the prosecution evidence, the trial court has recorded acquittal of Jagdish on having noticed the statement of Ram Avtar that only co-accused Chhotey Singh and Vijay Singh who were carrying iron rods caused injuries to the deceased on her breast and back and as a result, she fell down. Besides, there was no motive on the part of accused Jagdish Singh which is obvious also from the testimony of Brijendra Singh. In the first information report also, which was recorded on the statement of complainant Ram Avtar, accused Jagdish Singh has not been shown to be carrying any weapon.

The Court has awarded 10 years R.I. with a find of Rs. 1000/- which does not appear to be on lower side looking to the nature of offence being culpable homicide not amounting to murder. Besides, against the order passed by learned Single Judge in connected Criminal Appeal Nos. 189 of 1994 filed by convicted accused, the State did prefer any SLP to the Supreme Court. Thus, the State has accepted that judgment.

Moreover, the Apex Court in a number of decisions regarding interference with the judgment of acquittal has held that when two views are possible, the view taken by lower court in the facts and circumstances of the case in favour of the accused should be taken as the probable and reasonable view.

In view of the aforesaid, we do not find any merit in this leave to appeal, hence, dismissed.