1 M.Cr.C. No. 10360/2017 (State of M.P. Vs. [ENTITY] and others) Gwalior, 21.11.2017 Shri [ENTITY], learned Public Prosecutor for the applicant/State. There is a delay of 273 days in filing this application for leave to appeal, condonation whereof is being sought vide I.A. No. 7337/2017. Notices were issued; however, despite service no one appeared to oppose the application for condonation. Consequently, the application is allowed. Delay condoned. Pertinent it is to note that [ENTITY], respondent
No. 1 has expired on 22/07/2017 which is evident from death certificate issued on 16/08/2017 by Municipal Corporation, Gwalior brought on record by S.H.O., PS Gwalior.
The prosecution seeks leave against the Judgment dated 19/11/2016 by the Ninth Additional Sessions Judge Gwalior in Sessions Trial No. 493/2014 recording acquittal of respondents accused of offences under [SECTION], [SECTION] and [SECTION] against [ENTITY] and under [SECTION], [SECTION] and [SECTION] against [ENTITY] and [ENTITY] vide Crime No. 2/2014.
The respondents were tried for the said offences on the prosecution story that the complainant [ENTITY] (PW-1) on 01/01/2014 lodged a complaint at 9:30 PM at PS Gwalior that on 01/01/2014 at 7:30 PM he and his brother [ENTITY] (the deceased) were going to [ENTITY]'s house on his having called them for repaying the debt, when they reached near his house, [ENTITY] was standing in the lane armed with double barrel twelve bore gun accompanied by his son [ENTITY] and brother [ENTITY]. They collectively started abusing and when asked not to abuse [ENTITY] opened fire on [ENTITY] with intention to kill him which hit his abdomen. The second fire went up over the head of [ENTITY] who ducked and saved himself. And as other persons from Mohella gathered, the assailants ran away from the scene of crime. The injured was taken to hospital where he succumbed to the injuries.
The police after recording marg and after preparing inquest sent the body for postmortem after necessary investigation like collecting soil sample, arresting the alleged culprits, recovering weapon at their instance, filed the charge sheet in Court wherein respondent No. 1, since deceased, was charged of an offence under [SECTION], [SECTION] and [SECTION] IPC; whereas respondent No. 2 and 3 were changed for the offence under [SECTION], [SECTION], [SECTION] IPC.
The respondents abjured their guilt. Prosecution to bring home the charge examined [ENTITY] (PW-1) and [ENTITY] (PW-11) as eye witnesses. PW-11 however did not support the prosecution story and was declared hostile. In respect of PW-1, another eye witnesses, the trial Court found his Court statement contradictory to the statement made to police. However even if the said finding is ignored, the fact remains that in his Court statement the entire overt act is attributed by him to that of [ENTITY]. This fact that entire overt act is attributed to [ENTITY] is also evident from the statement of Dr. [ENTITY] examined as PW-5 of having recorded the dying declaration incorporated in Medico Legal Report Ex- P/9 from B to B:
iz'u mRrj D;k uke gS rqEgkjk & xksiky firkth dk uke & j?kqohj xksyh dSls yxh & nkrkjke ij esjs isls m/kkj Fks mlus eq>s #i;s ysus dks cqyk;k vkSj fQj ihNs ls eq>s xksyh ekj nh
Thus, even the deceased had attributed the commission of offence by [ENTITY] alone, he does not name respondent No. 2 and 3 of having any role played for commission of offence and of having shared any common intention. That being trite it is that unless established that there was pre- meditation or prior meeting of mind an accused cannot be held guilty of having shared a common intention in commission of alleged crime. For an authority please see Sudip Kumar Sen alias Biltu Vs. State of West Bengal and others [(2016) 3 SCC 26] under [SECTION], wherein it is held:-
"14. [SECTION] IPC embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of common intention. Common intention implies acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct of the accused persons or from attendant circumstances. To invoke [SECTION] IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:-
(i) there was common intention on the part of several persons to commit a particular crime, and
(ii) the crime was actually committed by them in furtherance of that common intention.
Common intention implies pre-arranged plan. Under [SECTION] IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence of liability under [SECTION] IPC is conscious mind of persons participating in the criminal action to bring about a particular result. The question whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted."
The entire material evidence on record reveals that it was [ENTITY] alone who had committed an offence and no role is attributed to respondents No. 2 and 3. Since after acquittal [ENTITY] has expired, the leave sought against his acquittal abates.
As regard to alleged role ascribed to respondent No. 2 and 3; Having gone through entire evidence, the trial court in our considered opinion is justified in returning the finding that the prosecution has failed to establish the story of common intention of these respondents to cause offence as alleged.
It is settled legal position that in appeals against acquittal, the appellate Court is not required to rewrite the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of [PRECEDENT], wherein it is held as under :
"8 [PRECEDENT]. " This Court has observed in [PRECEDENT] that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court, the decision of which is under appeal, will ordinarily suffice."
In [PRECEDENT], it is held :
"That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
In [PRECEDENT], it is held :
"31. Learned Counsel appearing for the appellants strongly canvassed for the position that in an appeal against acquittal, there are some inbuilt restrictions before the appellate court and the mere possibility of a different view is not enough to interfere with the acquittal. We have no quarrel with the well-settled proposition. The author of this judgment is the author of the judgment in [PRECEDENT], wherein a detailed survey has been conducted with regard to the scope of interference of the appellate court in an appeal against the judgment of acquittal. After referring to following decisions in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], which have dealt with the issue, this Court held that unless the judgment of acquittal is based on no material or is perverse or the view taken by the court is wholly unreasonable or is not a plausible view or there is non-consideration of any evidence or there is palpable misreading of evidence, the appellate court will not be justified in interfering with the order of acquittal."
In [PRECEDENT], it is held :
"20.In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial Court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial Court could not be said to be "perverse"
and, hence, no leave should be granted.
23.Now, every crime is considered as an offence against the society as a whole and not only against an individual even though it is an individual who is the ultimate sufferer. It is, therefore, the duty of the State to take appropriate steps when an offence has been committed.
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed."
In view whereof and in the given facts of the present case, since we do not perceive any perversity in the findings arrived at by the trial Court in recording the acquittal of respondents, we are not inclined to grant leave to the prosecution against acquittal.
Consequently, application fails and is dismissed.
([ENTITY]) ([ENTITY]) Judge Judge shubh*
[ENTITY] Digitally signed by [ENTITY] DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=HIGH COURT OF M.P. BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, MISHRA 2.5.4.20=e1f45241b0d8e47d03567942a7e835e2631b7c3ff747e97afd6840f daafb8d3a, cn=[ENTITY] Date: 2017.11.24 10:45:54 +05'30'