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CASE NO.: Appeal (crl.)  1049-1050 of 2007

PETITIONER: State of U.P

RESPONDENT: Govind Das @ Gudda and Anr

DATE OF JUDGMENT: 10/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS.1049-1050           OF 2007 (Arising out of SLP (Crl.) Nos.46-47 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      These appeals are against the judgment of the Division  Bench of the Allahabad High Court by which it directed   acquittal of the respondents.  Before the High Court the  respondents had questioned correctness of the judgment  passed by Additional Sessions Judge, Hamirpur, convicting  the respondents for the offence punishable under Section 302  read with Section 34 of the Indian Penal Code, 1860 (in short  the ’IPC’) Each of the accused was sentenced to undergo life  imprisonment and a fine of Rs.20,000/- with default  stipulation.  Respondent-Govind Das was sentenced to death  for an offence punishable under Section 302 IPC. It is to be  noted that there were two deceased persons; one was Loknath  and the other was Naval Kishore. Accused Sushila was  acquitted by the trial Court. Since  accused Govind Das was  awarded death sentence, the matter was referred to the High  Court for confirmation of the sentence. The two accused  persons preferred appeals before the High Court and a  reference was made relating to death sentence awarded.  By  the impugned order, the High Court found the accused  persons innocent and set aside the conviction and sentence  awarded.  

3.      Though many points were urged in support of the  appeals, we find it unnecessary to go into those because of the  casual and summary way of disposal of the two appeals and  the reference relating to the death sentence.  The High Court  after analyzing the evidence and stand of the accused persons  and the prosecution in its judgment running into 23 pages (in  the paper book to this Court) allowed the appeals of the  accused persons  with the following observations:

"We have carefully scrutinized the evidence on  record. In our opinion implicit evidence cannot  be placed on the testimonies of both eye  witnesses. They have implicated Smt. Sushila  in the crime. The involvement of Smt. Sushila  was to reconcile the conflict in direct and  medical evidence. Since the punctured wound  on the body of Lok Nath were of small

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dimensions, therefore, weapon Barachhi and  pointed Sariya was introduced by the  witnesses. After the acquittal of Smt. Sushila  punctured wound remains unexplained.   Learned Sessions Judge has already held that  Ballam which is alleged to be recovered on the  pointing out of Jai Kishan is not weapon of  crime. There is no corroboration of any other  independent testimony or of medical evidence  or investigation.

       In view of the discussion made above,  both the appeals are allowed. The conviction  and sentences awarded by the trial Court are  set aside. The appellants are acquitted of the  charges. The appellants are in jail. They shall  be released forthwith if not wanted in any  other case. The reference made by learned  Sessions Judge for the confirmation of death  sentence is rejected." 4.      To say the least, the approach of the High Court is clearly  unsupportable. It did not bother to even analyse the evidence  and/or to refer to any finding recorded by the trial court as to  in what way the evidence was not acceptable.  The mere fact  that the co-accused had been acquitted is not sufficient to  discard the prosecution version in its totality. It is not  understood as to what was meant by the High Court by stating  that there was no corroboration of ’investigation’. This is not  the way  an appeal or reference for confirmation of death  sentence is to be dealt with. When the High Court was setting  aside the order of conviction the least that was required to be  done was analysis of the evidence to show as to how the  conclusions of the trial Court as regards acceptability of the  evidence of any witness was erroneous. That apparently has  not been done.   

5.      Therefore, without expressing any opinion on the merits  of the case, we set aside the impugned judgment of the High  Court and remit the matter to it for fresh consideration. Since  the matter is pending since long, we request the High Court to  explore the possibility of disposal of the appeals and the  reference made to it relating to confirmation of death sentence  within a period of six months from the date of receipt of copy  of this judgment.  The appeals are accordingly allowed to the  aforesaid extent.