Allahabad High Court
State Of Up vs Gaya Singh And 3 Others on 4 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- GOVERNMENT APPEAL No. - 200 of 2020 Appellant :- State of U.P. Respondent :- Gaya Singh and 3 Others Counsel for Appellant :- Govt. Advocate Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
( Per: Vikas Budhwar, J.)
1. Present government appeal, under Section 378(3) Code of Criminal Procedure ( hereinafter referred to as "Cr.P.C.) has been preferred against the judgement and order dated 10.06.2020, passed by the Additional District and Sessions Judge, Court No.1, Gorakhpur in Session Trial No. 158 of 2012 (State of U.P. vs. Gaya Singh and others), arising out of Case Crime No. 163 of 2011, under Section 302/34,201 I.P.C, P.S. Sahjanwa, District Gorakhpur, whereby the accused, who are four in number, have been acquitted from the charges under Sections 302/34, 201 IPC.
2. Factual matrix of the case as worded in the present appeal are that the first informant Gulab S/o Suryabali-PW1 had submitted a written report before the Station House Officer, Police Station Sahjanwa, district Gorakhpur on 24.04.2011 with allegation that on 23.4.2011 his younger son Om Narayan after eating his meals and taking the bed cover and mattress had proceeded towards the roof of the house and thereafter, he received 2-3 calls on his mobile phone and he after receiving the mobile phone call came down from the roof and stepped out of the house. At that point of time, the family members who witnessed him going out asked him why he was proceeding from the house in question during the night then he assured that though he was going out from the house but he would returned back soon and despite the assurance so given to return back, he did not return back and at 5.30 a.m. on 24.04.2011, the dead body of deceased Om Narain was found in the eastern part of the pond in the village. After receiving the aforesaid information, the family members including the first informant proceeded towards the place whereat the dead body of Om Narain was found and they saw injuries being inflicted upon the body of the deceased and thus the family members took out the dead body from the pond. Prosecution further alleges that they proceeded to lodge an FIR against unknown persons, which was registered as case Crime No.163 of 2011, purported to be under section 302, 201 IPC.
3. One Pradeep Kumar Singh was nominated as Investigating Officer, he claims to have reached the place of occurrence and conducted the proceedings, which were to be adhered to, post lodging of first information report while preparing panchnama, sending the dead body for postmortem, preparation of site plan and recording of the statement, under sections 161 Cr.P.C.
4. It is come on record that the postmortem of the deceased was conducted on 24.04.2011 by Dr. J.K.Sinha who was posted in Community Health Centre, Sahjanwa, district Gorakhpur.
5. The Investigating Officer after conducting investigation, submitted the charge sheet against the accused herein under section 302/34, 201 IPC.
6. Case was committed to Session.
7. Charges were readover to the accused who are four in numbers, they pleaded innocence and claimed to be tried.
8. The trial court by virtue of judgment and order under challenge acquitted the accused.
9. Challenging the judgment and order of the acquittal now the State of U.P. is before this Court in the proceedings under section 378(3) of the Cr.P.C.
10. In support of prosecution case, PW-1- Gulab Kahar, PW-2-Shiv Narayan, PW-3 Meera Devi, PW-4-Jang Narayan, PW-5 Head Constable Rameshwar Prasad, PW-6 Sub Inspector Pradeep Kumar Singh, PW-7 Dr. J.K.Sinha, PW-8- Vindhyachal, PW-9, Ram Milan Singh and PW-10, Suraj Singh were produced got themselves examined before the Court below.
11. Besides occular testimony the prosecution also produced documentary evidence in order to bring home the charges which is being discussed little later.
12. This Court indeed is oblivious of the fact that the present proceedings is at the behest of the State against the judgment and order of acquittal thus it is confronted that certain limitations which have to be not only noticed but kept in mind while deciding the present case.
13. The Hon'ble Apex Court right from very inception has cautioned the Appellate Court while entertaining and adjudicating the appeal against conviction that it should not substitute its own views viz.-a-viz. the view taken by the learned Trial Court acquitting the accused in a routine and cursory manner until and unless the judgment of the acquittal proceeds in a wrong direction while being palpably perverse and there has been complete misreading of the evidence so as to occasion mis-carriage of justice to the partin.
14. Recently, the Hon'ble Apex Court has occasion to consider the limit in extending of power of the Appellate Court in dealing with the judgment of the acquittal in exercise of the jurisdiction, under section 378 of Cr.P.C. In the case of Rajesh Prasad Vs. State of Bihar and another, 2022 (3) SCC 471, the Hon'ble Apex Court in paragraph nos. 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 to 31.2.2 are quoted as under:
"19. In the appeals filed by the accused and in the Death Reference No.13/2008, the High Court, on considering the submissions made on behalf of the accused as well as the State, noted at the outset as under:
"It is trite law that acquittal of a coaccused cannot simpliciter be a ground for acquittal of other accused. There may be factors distinguishing the two cases. Alternately, an erroneous acquittal and absence of any challenge to the same cannot be a ground to demand similar treatment by others. Likewise, the testimony of an interested witness cannot be discarded on that ground alone. It would only require the Court to be more cautious and scrutinize the evidence carefully. Evidence, otherwise cogent and convincing cannot be rejected on the ground that there was no independent witness, though the occurrence had taken place on a busy road. But, there may be circumstances where the witnesses are interested and the manner of occurrence as described requires corroboration by independent witness also. Ultimately, therefore, it shall all depend on the facts and circumstances of the case. It has also to be kept in mind that it shall be those close to the deceased, who shall be most keen that the real culprits be booked."
20. With the aforesaid observations, the High Court set aside the judgment of conviction of the accused who were convicted by the FastTrack Court as well as sentence imposed upon them and accordingly, allowed the appeals by acquitting all the accused.
21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under:
"16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
"....But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this,however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."
It was stated that the appellate court has full powers to review and to reverse the acquittal.
22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715:
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ''substantial and compelling reasons', (ii) ''good and sufficiently cogent reasons', and (iii) ''strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."
23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."
24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, Krishna Iyer, J., observed as follows: (SCC p.799, para 6) "6. .....In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows: (SCC p.229, para 7) "7....While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can thenand then only reappraise the evidence to arrive at its own conclusions."
The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.
26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court:(SCC pp.116017, para 16) "16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed visàvis the powers of an appellate court while dealing with a judgment of acquittal, as under:
"7. ... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions."
28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.
31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai, AIR 1981 SC 1442] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh, (1990) CrLJ 2274 (SC)] 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:
31.2.1. Where the approach or reasoning of the High Court is perverse:
a) Where incontrovertible evidence has beenrejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning; [State of UP v. Shanker, AIR 1981 SC 879]
b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were ''interested' witnesses; [State of UP v. Hakim Singh, AIR 1980 SC 184]
c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207]
d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v.Sadhanantham, AIR 1979 SC 1284]
e) Where the High Court applied an unrealistic standard of ''implicit proof' rather than that of ''proof beyond reasonable doubt' and therefore evaluated the evidence in a flawed manner.[State of UP v. Ranjha Ram, AIR 1986 SC 1959]
f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan v. Satpal Singh, AIR 1990 SC 209].
g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case,there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish ''motive.' [State of AP v. Bogam Chandraiah, AIR 1986 SC 1899] 31.2.2. Where acquittal would result is gross miscarriage of justice:
a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v. Pheru Singh, AIR 1989 SC 1205] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC)]
b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675]"
15. Bearing in mind the principle of law so culled out by the Hon'ble Apex Court now the present case is to be addressed.
16. To begun with ocular testimony of the prosecution witness is to be first scanned.
17. One Gulab Kahar son of Surya Bali (PW-1) got his statement recorded as prosecution witness being the father of the deceased though according to him he has not witnessed the commission of offence, however, according to him, he is the first informant who was present in his house when on 23.4.2021, the deceased after eating his meal had proceeded to the roof of the house in question with bed sheet so as to relax for the next day. According to him the deceased is stated to have received two phone calls and he came down from the roof and when he was proceeding to some place while stepping out from the house and when he was asked as to why in the late hours he was moving from the house then he assured that he was going for some work and he will return back soon but he did not return and the dead body was found on the next day in the morning at 5.30 A.M.on 24.4.2011 and then he along with his family members proceeded to the place of incident near a pond towards eastern section and witnessed the dead body of the deceased.
18. One Shiv Narayan came to the witness box as PW-2, and according to him, the incident occurred in the intervening night of 23/24.04.2011 when his brother (since deceased) after eating meal had gone to roof to sleep and in the meantime, a phone call came on the mobile of the deceased which was received by PW-3 Meera Devi and the caller itself apprised that he wanted to talk with the deceased, however, in the meantime the call dropped and after some time another call came which was received by the deceased and talking on mobile he proceeded from the house and the PW-1 being the father of the deceased when enquired as to where the deceased were going then he did not disclose the place where he was going but assured that he will come back soon and when he did not come back and on the next day, the body of the deceased was found in the pond, half of the body was submerged in the water and according to him his brother's blood was found near the elevated portion of the pond and according to him, his brother's body had been thrown away in the pond and the body of the deceased marked presence of injury. In his deposition, he further stated that at 12 noon on 24.4.2011 he came to know that his brother was disposed of due to election rivalry by the accused herein and they had thrown away the body in the pond and according to him he had given the said statement to the police.
19. PW-3 Meera Devi who happens to be the wife of the elder brother of the deceased being PW-2 Shiv Narayan has also got recorded her statement and according to her statement, the deceased Tilak ceremony was to be conducted on 28.04.2011 and the date of the marriage was 11.05.2011, however, in the intervening night of 23/24.4.2011, the deceased after eating the meals had proceeded to the roof in order to sleep and the mobile of the deceased was in charging mode and at 8 P.M. in the night, a call came which was picked up by PW-3 and the caller apprised the receiver it that it was in urgent, as he wanted to talk to the deceased and she recognized the voice to be of the accused respondent no.1 Gaya Singh who happens to be of the same village. She thereafter apprised him and advised the caller to again call and thereafter, the deceased came to her room from the roof and the deceased took the mobile and went to the roof by the time the second call came and the deceased while talking with the caller came down from the roof and when he was about to proceed while stepping out from the house then PW-1 asked where he were going then the deceased apprised that he will come back soon as he was going for some work. According to PW- 3 on the next date i.e. 24.04.2011 at 6 a.m. in the morning they received information that the dead body of the deceased was found near a pond.
20. PW-3 Meera Devi has further made a deposition that the deceased has been done away on account of the election rivalry emanating from the election of the Gram Pradhan as he had canvassed and supported the other party being of Satya Prakash Singh which become the basis of murder. However, according to her statement, she had not seen the commission of the crime, however, when she had proceeded in the morning towards the place whereat the dead body of the deceased was found then accused was present therein and the accused had admitted the fact that they had murdered the deceased. She has further deposed that she had given the said statement under section 161 Cr.P.C. regarding the admission and presence of accused on the place of occurrence.
21. One PW-4, Jai Narayan had also got recorded his statement and he claims to be the younger brother of the deceased and he has supported the prosecution story alleging that the deceased after eating the meal had gone on the roof for sleeping and his room is just near the room of Shiv Narayan and Shiv Narayan's wife had received the calls, which were put in charging mode. According to him PW-3 picked up the call at 8 p.m. and the basis for commission of crime is the election rivalry.
22. PW-5 claims to be Head Constable Rameshwar Prasad who has proved lodging the first information report on 24.4.2011 at 7.30.
23. PW-6 is the Investigating Officer, who claims to have prepared Panchnama, site plan and also took samples of blood stained, earth and plain earth and preparation of site plan referable to recovery etc.
24. PW-7 is Dr. J.K. Singh who has proved the postmortem as according to him, he had prepared the post mortem report.
25. PW-8 Vindhyachal has proved the recovery of blood stained plain earth and preparation of Fard.
26. PW- 9 Ram Milan Singh claims to be present and witness the process of taking the blood stained and plain earth.
27. PW-10 Suraj Singh claims to be the resident of the same village and proved Panchnama.
28. We have heard Shri Yogesh Rai, State Law Officer in support of the appeal and perused the record.
29. Shri Yogesh Rai had submitted that the judgment and order of the acquittal is perverse and a classic example of misreading of the evidence as the accused have committed the offence particularly in view of the fact that PW-3 Meera Devi had recognized the voice of the accused Gaya Singh and further last call on the mobile of the deceased was of accused Gaya Singh, which proved beyond doubt that on the insistence of the accused, deceased proceeded from the house and did not return, however dead body was found on the next day. According to Shri Yogesh Rai, State Law Officer, accused was present when the body was recovered and he admitted that he had murdered the deceased. Further submission has been made to the extent that not only motive was present but all the factors pointed out towards the accused with respect to commission of crime.
30. Undisputedly the present case is not of an eye witness testimony as no body has seen the commission of crime, rather to the contrary the same is of circumstantial evidence.
31. As per the prosecution version the deceased in the intervening night of 23/24.04.2011 had gone from his house after receiving a call in his mobile phone and at that point of time, PW-1, PW-2, PW-3 and PW-4 are stated to be present in the house. First call is said to have been received by the wife of PW-2 being PW-3 and the second call itself by the deceased at 8 p.m. on 23.11.2011, whereat in the first call it was uttered by the caller to the PW-3 Meera Devi that the accused Gaya Singh had something urgent to talk, however, PW-3 apprised him to call again as the deceased was not in front of her, and thereafter, the deceased is stated to have come and he took the mobile phone and also received the call and after talking on mobile phone, he proceeded out of his house assuring that he will come back and he did not come back but on the next day his dead body was found.
32. The entire prosecution theory thus hinges upon the receiving of the call firstly by the PW-3 and secondly by the deceased and proceeding of the deceased from the house. Hence the entire basis for commission of crime and linking the accused is the phone call.
33. In the present case, PW-1, PW-2 and PW-4 have not named accused Gaya Singh as an accused for commission of crime while calling the deceased on mobile phone. However, it is PW-3 Meera Devi who in her cross-examination has stated that she could recognize and identify the voice of Gaya Singh when she received the first call while showing urgency in talking with the deceased. PW-3 Meera Devi in her cross-examination has come up with stand that she had never seen the accused Gaya Singh and as he has no point of time come to her place and he never talked with her. The said contradiction and inconsistency of PW-3, Meera Devi assumes significance as once a person who has not meet or interacted with a person that to being a stranger then by all probabilities it is not humanly possible to identify the voice of the caller by the receiver as such the testimony of PW-3 Meera Devi linking the accused Gaya Singh is highly unreliable. More over PW-3, Meera Devi made a deposition that she had narrated the entire fact including recognizing the voice of accused Gaya Singh to PW-6, Inspector Pradeep Kumar being the Investigating Officer, however, he had denied the same. Truthfulness of the testimony of the PW-3, Meera Devi also stands belied from the fact that she had not apprised the fact of recognizing the voice of the accused Gaya Singh either to her husband's or to husband younger brother or to informant who happens to be father-in-law. This Court further finds that the testimony of PW-3, Meera Devi cannot be referred to or relied upon to support the prosecution case as her testimony does not even remotely inspire confidence.
34. Apart from the same another question arises with regard to the fact that first informant report in question was lodged against unknown person particularly when the date and time of lodging of the first information report is 24.04.2011 at 7.30 p.m. Prosecution has further alleged that the dead body of the deceased was recovered on 24.04.2011 at 5.30 in the evening. PW-3, Meera Devi as discussed above, is stated to have recognized the voice of the accused Gaya Singh and once she is possessing the knowledge about receiving of the call by Gaya Singh and it is on his request/direction the accused Gaya Singh, the deceased proceeded from the house and did not return then in these circumstances by all eventualities, the name of the accused Gaya Singh ought to have been marked as accused in the F.I.R. So much so, it is the PW-3, Meera Devi who in her statement has further come up with the stand that the accused were present in the place of occurrence where the dead body was recovered and the accused have made the statement, being a confession that they had committed the crime then obviously the name of the accused ought to have been mentioned in the first information report as the twin factors stood available with PW-3 firstly she recognized the voice of the accused Gaya Singh and secondly the presence of the accused in the place of occurrence which is a big factor for marking the accused in the FIR.
35. Another facet of the matter which needs to be considered at the stage is the fact as to whether the deceased actually received the phone call from accused Gaya Singh as receiving of the calls which are two in number firstly by PW-3 Meera Devi and secondly by the deceased had been made the basis of crime. Thus the call details (CDR) is the important device in order to determine and link the accused in respect of commission of crime. It has come on record that Mobile No.9792548711 is of the deceased as whereas Mobile No.9919050074 is of the accused Gaya Singh. The learned trial court has taken pains to go into the said aspect of the matter and as amongst other factors held that the certificate so required under section 65-B (iv) of Evidence Act, 1872, which is mandatory has not been either obtained or produced.
36. Even in fact PW-1 being the first informant and the father of the deceased deposed has stated in his deposition that he does not know the mobile number of his deceased son and PW-2 being elder brother of the deceased has deposed that he is not aware as to whether deceased possessed any mobile phone or not. PW-6, Pradeep Kumar Singh, the Investigating Officer has made statement that on 9.5.2011 as per Parcha No.9 he has put the mobile phone on the deceased on surveillance and on 18.05.2011 he was in receipt of the CDR and according to him on 23.4.2011 at 20.47 hours, 21.02 hours phone cell was made on the mobile phone of the deceased from mobile no.9919050074 and thereafter the said phone got switched off. According to PW-6, the mobile no.9919050074 is owned by Gaya Singh S/o Raja Ram, resident of village Kodri, Police Station Sahjanwa, District Gorakhpur.
37. PW-6 Pradeep Kumar Singh, the Investigating Officer in his cross-examination deposed that he had not gathered any information while conducting investigation in coming to the conclusion as to whether the accused Gaya Singh was the owner or possessed the mobile phone or not and he did not make any enquiry with the accused. Even according to PW-6, he has not got recovered the handset and the SIM from which telephonic conversation was made to the deceased so as to link the accused herein. PW-6 has also deposed that he has not conducted any investigation to find out the ownership of IMIE and so much so he had not taken steps to recover the handset.
38. Notably the trial court has analysed the said issue and after perusing the evidences so adduced has recorded categorical finding that there exists no evidence so as to link the accused with the mobile phone and the SIM Card in this regard. So much so no interrogation was made with the accused regard to determination of the fact as to whether the phone belongs to accused Gaya Singh.
39. No doubt defective investigation cannot be the sole basis for demolition of the prosecution theory but the same is also one of the ground amongst others for determining the fact as to whether the prosecution had proved the case beyond doubt. As observed earlier PW-3, Meera Devi claims to have recognized the accused Gaya Singh while listening to her voice despite the fact that she had never met him and he is not her relative meaning thereby that the entire prosecution case hinges upon recovery of mobile call which is stated to be made the accused Gaya Singh. More so, this Court finds that the call details (CDR) cannot be pressed into service without certification so required under section 65-B (iv) of the Evidence Act.
40. Even in fact, the law in this regard is well settled that a certificate under Section 65-B (4) of the Evidence Act is necessary as in absence of the same, the call details cannot be said to be proved. The said aspect of the matter has already been taken note by the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1, which is observed in paragraphs no. 47, 51, 52 and 61 as under:-
"47. However, caveat must be entered here. The facts of the present case show that despite all efforts made by the respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65-B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. Two Latin maxims become important at this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. This was well put by this Court in Presidential Poll, In re, (1974) 2 SCC 33, as follows: (SCC pp. 49-50, paras 14-15) "14. If the completion of election before the expiration of the term is not possible because of the death of the prospective candidate it is apparent that the election has commenced before the expiration of the term but completion before the expiration of the term is rendered impossible by an act beyond the control of human agency. The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by non-compliance with the provision that there shall be a President of India.
15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims, 10th Edn. at pp. 162-63 and Craies on Statute Law, 6th Edn. at p. 268.)"
It is important to note that the provision in question in Presidential Poll, In re24 was also mandatory, which could not be satisfied owing to an act of God, in the facts of that case.
.....
51. On an application of the aforesaid maxims to the present case, it a is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.
52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V.2, this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/ persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
......
61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.2, and incorrectly "clarified" a in Shafhi Mohammad³. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor40, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."
41. Recently Hon'ble Apex Court in Criminal Appeal No.1307 of 2019 Ravinder Singh @ Kaku Vs. State of Punjab decided on 4.5.2022 had followed the judgement in the case of Arjun Panditrao Khotkar (Supra) and paragraph 21 has held as under:-
"21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law".
42. Even taking the prosecution case on face value, the same is of circumstantial evidence. Notably no body has seen the commission of crime and its only PW-3 Meera Devi who on the basis of the phone call so received by her as discussed herein above has linked the accused with respect to commission of crime. It is well settled that in the case of circumstantial evidence there should be a complete chain so as to link the accused with respect of commission of crime and it should be prove beyond doubt that it is accused and nobody else who has committed crime.
43. The Hon'ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984(4) SCC 116. In paragraph no.153 has observed as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
44. In Padala Veera Reddy Vs. State of A.P. (1989) Supp 2 SCC 706, the Hon'ble Apex Court in paragraph nos. 10 and 11 held as under:-
"10. Before adverting to the arguments advanced by the learned Counsel we shall at the threshold point out that in the present case here is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. this Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra ).
11. See also Rama Nand and Ors. v. State of Himachal Pradesh , Prem Thakur v. State of Punjab , Earabhadrapa alias Krishappa v. State of Karnataka Gian Singh v. State of Punjab 1986 Suppl. SCC 676, Balvinder Singh v. State of Punjab."
45. More so in the case of C.CHENGA REDDY AND OTHERS VS. STATE OF A.P., 1996 (10) SCC 193. In paragraph no.21, the Hon'ble Apex Court observed as under:-
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
46. In STATE OF RAJASTHAN VS. RAJA RAM, 2003(8) SCC 180. In paragraph no.9, the Hon'ble Apex Court observed as under:-
"9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
47. Recently the Hon'ble Supreme Court in Criminal Appeal Nos.333-334 of 2017, Shailendra Rajdev Pasvan and others Vs. State of Gujarat etc. decided on 13.12.2019. In paragraph no.12, the Hon'ble Supreme Court has observed as under:-
" 12. Thus the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:-
(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. "
(ii) All the circumstances must be consistent pointing only towards the guilt of the accused."
48. Applying the principle of law as referred to in above noted judgment an enescapable conclusion stand drawn that the prosecution could not link the accused for committing the said crime as obviously barring the receiving of phone call which even in fact also does not stands proved by any prosecution there is nothing so as to complete the chain itself.
49. So much so the prosecution case does not stand on its own leg even while applying the theory of last seen of the deceased with accused as though prosecution has come up with the case that the deceased was lastly seen with the accused however, Satya Prakash and Shyamjeet did not enter into the witness box as a prosecution witness to prove and support the prosecution theory. Though a stand had been taken by PW-1, Guab Kahar that the accused was lastly seen with the deceased in the intervening night of 23/24.04.2011 by the above two noted persons but the said fact was not apprised to the Investigating Officer.
50. In so far as the recovery of the dead body along with wood and iron rod is concerned, the same is also under cloud as though allegations have been made that on the pointing out the accused Gaya Singh and Vinod Yadav that incriminating articles alleged to be used committing crime was recovered but there had been no independent witness so as to substantiate the same. Even in fact the first informant being PW-1, Gulab Gahar in his cross examination has stated that though the proceedings of Panchnama were though done, however, the Investigating Officer got the signatures of the PW-1 Gulab Kahar effected on a plain paper and he signed the same near the house of Hari Ram that to on blank paper. The aforesaid fact itself shows that the recovery is a planted and the same does not inspire any confidence or can be made a basis to link the accused with respect to commission of crime.
51. The aforesaid facts itself reveals that the entire proceeding so lodged by the prosecution has been tailored in such of a manner so as to implicate the accused herein right from inception post lodging of the first information report as in the F.I.R, the accused was not marked. More so no independent witness was brought in the witness box on behalf of prosecution so as to surface the true picture. The Investigation so conducted is not only defective but in a casual manner.
52. This Court has to also bear in mind that suspicion however may be grave cannot partake the character of proof in the case of circumstantial evidence.
53. The Hon'ble Apex Court in the case of Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan, 2013 (5) SCC 722. In paragraph no.21, the Hon'ble Apex Court observed as under:
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be' and `must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P., AIR 2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).:
54. Marshalling the testimony of the prosecution witness and the documents so adduced by them, this Court has no hesitation but to form a firm opinion that the prosecution has completely failed to prove beyond doubt that the accused has committed the offence. More so, the learned trial court has meticulously analysed the case from four corners of law and after considering the evidence as well as occular testimony has acquitted the accused. The view taken by the trial court is not only plausible but a possible view and there is no occasion for this Court to take another view while substituting judgment of acquittal into conviction. This Court further finds that the judgment of acquittal is neither preserve nor is a case of misreading of evidence or it proceeds towards wrong direction. Obviously double presumption of innocence is available with the accused and it is not a case where any interference is warranted.
55. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
56. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of this date, the present government appeal is also dismissed.
57. Record of the present case be sent back to the learned trial court.
Order Date :- 4.8.2022 SFH