Attempt To Murder Case: Allahabad High Court Delivers Split Verdict In Appeal Against Acquittal Of Rebel SP MLA

While Justice Attau Rahman Masoodi sentenced five of the accused, including Abhay Singh, to three years of imprisonment in connection with the 2010 case, Justice Ajai Kumar Srivastava-I, on the other hand, dismissed the appeal and upheld the sessions court's 2023 Judgment acquitting all the accused.

Justice Masoodi noted that the findings of acquittal recorded by the trial court were erroneous, perverse and are not based on correct appreciation of evidence available on record. Justice Srivastava, however, noted that the trial court's judgment does not suffer from any infirmity or illegality and the same is not perverse.

“In view of difference of opinion between the members of the Bench, let the record of the Criminal Appeal be placed before Hon'ble the Chief Justice under Section 433 of Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding Section 392 Code of Criminal Procedure) for nomination of Bench,” the December 20^th order reads.

The case in brief

Vikas Singh (Appellant/Complaint/Informant) reported to the police in May 2010 alleging that while he was travelling from Faizabad to his village Devgarh with his friend Dharmendra Singh (the driver) and cousins Vansh Bahadur Singh and Ajit Pratap Singh, they were overtaken by a car.

He alleged that the car stopped ahead of them, and several people, including Abhay Singh, Rama Kant Yadav, Ravi Kant Yadav, Shambhu Nath Singh, and Sandeep Singh, got out of the car and without giving him any warning, 3 of them fired at their car with the intent to kill them, shouting threats and using abusive language. However, since his driver drove away quickly, their lives was saved.

After an FIR was lodged, the complainant was allegedly admitted to a district hospital, where he was under treatment for three days. Now, pursuant to the competition of the investigation, a chargesheet was filed against them.

However, after considering the evidence on record and the testimony of the injured witness, the trial court concluded that the prosecution had failed to prove its case beyond reasonable doubt and consequently acquitted all the accused persons of the charges levelled against them.

Challenging their acquittal, Vikas-Singh moved the High Court through Advocate Naved Ali, contending that the medical and vehicle inspection reports fully supported the testimony of the injured witness, Vikas Singh, and that the trial court should not have dismissed it due to minor contradictions.

It was strongly argued that the trial court committed an error in discarding the testimony of the injured witness [Vikas Singh (P.W.-2)], whose testimony was fully supported by documentary evidence, i.e., the injury report and the technical report of the vehicle given by a Technical Expert.

Refuting the assertions of the Counsel for the appellant, the advocates for the accused-respondents contended that the learned trial court had rightly acquitted the accused persons of the charges levelled against them as the prosecution had utterly failed to prove its case beyond reasonable doubt.

It was strongly submitted that Dharmendra Singh (P.W.1), who was said to be driving the vehicle, had not supported the prosecution version and was declared hostile, and thereafter, there remained only the eye-witness account of the complainant; however, his testimony was not found worth credible by the trial court.

Perusing the trial court's judgment and the evidence adduced by the prosecution, Justice Masoodi noted that the trial court had proceeded with the premise that no such incident as narrated in the FIR had taken place in the manner as alleged.

“…(the trial court) overlooked the vital fact that the injured witness whose vehicle was also damaged would not falsely implicate the accusedrespondents and allow the actual assailants, who in fact were identified in the headlight of the vehicle, to go scot-free,” Justice Masoodi observed.

Justice Masoodi added that both accused Abhay Singh and appellant Vikas Singh have criminal antecedents, but this does not mean that false imputations have been made.

Regarding the declaration of PW-1 (Dharmendra Singh/Driver) as a hostile witness, Justice Masoodi noted that denying the entire prosecution story by PW-1 reflects the fear and terror of accused Abhay Singh, as was stated in the FIR.

The Court also factored in that the statement of PW1 before the Court was recorded more than seven years after the incident, allowing ample time to influence the witness and to win over him by adopting all kinds of tactics familiar to law.

In view of this, finding error in the trial court's judgment, the Court set it aside and convicted Shambhunath Singh, Rama Kant Yadav, Ravi Kant Yadav, Abhay Singh and Sandeep Singh @ Pappu Singh for the charges levelled against them under Sections 147, 149, 504, 506, 307 IPC and sentenced them to 3 year RI.

On the other hand, Justice Ajai Kumar Srivastava, in his order, said, after going through the draft judgment of Justice Masoodi, he was unable to concur with the same.

“The dissent arises because of legal principles which have come to be settled by a catena of judgments of Hon'ble the Supreme Court on the subject of appreciation of evidence in an appeal filed to assail acquittal,” Justice Srivastava noted.

In his Judgment, Justice Srivastava, on a threadbare analysis of the testimony of sole prosecution witness P.W.-2/ Vikas Singh, found it difficult to say he was a witness of sterling quality.

“It is also difficult to place him in the category of a wholly reliable witness, whose testimony is of such quality which inspires confidence of the Court to base conviction of the accused/ respondents No.2 to 8 on its sole basis. At best, he could be placed in the category of a witness, who is neither wholly reliable nor wholly unreliable,” he observed.

Justice Srivastava further noted that there was nothing on record indicating that any inadmissible evidence was relied upon by the learned trial court or that, while recording the finding of acquittal of the accused/ respondents No. 2 to 8, the trial court failed to consider any evidence that was otherwise admissible, but the same was not considered.

Given this, he dismissed the appeal, upholding the trial court's order.

Appearances

Counsel for Appellant: Sandeep Yadav,Naved Ali

Counsel for Respondent: G.A.,Anuj Pandey,Ashish Kumar Shukla,Ashish Kumar Singh,Katyayan Mishra,Lalta Prasad Misra,Nagendra Mohan,Niteesh Kumar,Rajeev Narayan Pandey,Randheer Singh,Ripu Daman Shahi,Sarvesh Upadhyay,Sushil Kumar Singh

Case title - Vikas Singh vs. State Of U.P. Thru. Prin. Secy. Home Lko. And 7 Others

Case citation:

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