Allahabad High Court
State Of U.P. vs Mukesh Verma And Another on 7 March, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:33867-DB Court No. - 47 Case :- GOVERNMENT APPEAL No. - 7908 of 2010 Appellant :- State of U.P. Respondent :- Mukesh Verma and Another Counsel for Appellant :- G.A. Counsel for the Respondent : - Yogesh Kumar Hon'ble Siddharth,J.
Hon'ble Praveen Kumar Giri,J.
Order on Criminal Misc. (Leave to Appeal) Application
1. Heard Ms. Manju Thakur, learned A.G.A.Ist for the State-appellant, Sri Dharmendra Kumar Chaubey, learned counsel for respondent No.1 and perused the record.
2. The above noted government appeal is filed against the judgment and order of acquittal dated 14.07.2010 passed by Additional Sessions Judge, Court No.8, District - Bulandshahar, in Sessions Trial No. 1301 of 2006, arising out of Case Crime No.360 of 2006, under Sections 302/34, 201, 394 & 411 of IPC against respondents and Sessions Trial No. 1341 of 2006 arising out of Case Crime No.361 of 2006 under Section 4/25 Arms Act against accused-Mukesh Verma, Police Station - Khurja, District - Bulandshahar.
3. Brief facts of the case are that informant-Kaluva Khan gave a missing report to the concerned police station stating therein that on 6.8.2006 at about 10.00 AM, his father-in-law, namely, Hamid Khan, as usual had gone to graze the buffaloes towards Sikri Bamba Jangal. Till the evening, he did not return. It was alleged that there were three buffaloes and two calves with him. On the basis of the said complaint, the First Information Report was registered at Police Station - Khurja, Bulandshahar, on 7.8.2006 at 1.15 AM.
4. The investigation was set into motion by Investigating Officer Vijay Kumar Yadav who took all the documents related to the case and prepared the site plan. During the investigation, on 6/7.8.2006, the I.O. saw accused Mukesh, Sanjay and Raju taking away the stolen buffaloes and calves. The police surrounded them and arrested Mukesh and Raju. However, accused-Sanjay managed to escape from the spot. The buffaloes and calves were recovered from the accused and a report was prepared on the spot in the light of a torch. On the pointing out of the accused, the dead body of an old man was recovered from the bushes on the side of the drain. The accused told that this was the same person whom they had murdered and looted the buffaloes, calves etc. Recovery memo of the dead body was prepared by the investigating officer on the spot. The deceased's spectacles and slippers were also recovered, for which a separate memo was also prepared. After this, the investigating officer took the blood stained soil and plain soil from the crime scene in separate possession and stitched it with survey seal and took sample seal. The above recovery memo was got prepared on the spot by Investigation Officer, Jagmohan. He filled the Panchayatnama of deceased Hamid Khan and sent it for postmortem along with necessary documents. After this, accused Mukesh brought out a blood stained knife from the bushes and accused Mukesh told that with this knife he had cut the neck of the deceased which was exhibited as Exhibit Ka-9. On the basis of recovery of knife, Case Crime No. 361 of 2006 under section 4/25 of Arms Act was registered. Recovery memo of the alleged weapon was prepared at the spot by the IO Jagmohan. The post-mortem of the deceased was done by Dr. N.K. Mittal, Surgeon, District Hospital, Bulandshahr who prepared the post-mortem report (Exhibit Ka-5) in his handwriting and made his signature. Statements of witnesses and accused were taken by the investigating officer of Case Crime No. 360 of 2006. On finding sufficient prima facie evidence, charge-sheet was presented against accused Mukesh Verma and Raju alias Dhananjay Sharma.
5. The investigation of the case under Section 4/25 of the Arms Act was handed over to Shri Rameshwar Dayal, HCP, who inspected the scene of incident, prepared the map, recorded statements of witnesses and on finding sufficient prima facie evidence, submitted charge sheet (Exhibit A-14) against accused Mukesh Verma under Section 4/25 of the Arms Act to the court.
6. Accused-Sanjay was declared juvenile and therefore, his trial was separated.
7. Accused-respondents appeared before the Court below. Separate charges were framed against accused Mukesh Verma and Raju alias Dhananjay Sharma under Section 302 read with Section 34, 201, 394, 411 IPC and against accused Mukesh Verma under Section 25/4 Arms Act. Accused-respondents pleaded not guilty and sought trial.
8. The prosecution, in order to prove its case, has led many documentary evidence including postmortem report and has examined as many as 9 witnesses namely, PW1, Kaluva Khan; PW2, Sabir Khan; PW3, Constable Rajesh Kumar Singha; PW4, Dr NK Mittal; PW5, Diwan; PW6, Constable/Clerk Idris; PW7, Inspector Vijay Kumar Yadav; PW8 HCP Rameshwar Dayal and PW9 Sub-Inspector Jagmohan Kashyap.
9. After prosecution evidence was completed, the accused-respondents were put to question under Section 313 of Cr.P.C. wherein they stated that they were falsely implicated and the witnesses which were produced had given false statements.
10. At the end of the trial, after hearing the arguments on behalf of prosecution and the defence, the Trial Court acquitted the accused-respondents holding that the prosecution had failed to prove its case beyond all reasonable doubts.
11. Learned A.G.A. for the appellant-State has submitted that trial court has failed to appreciate the evidence on record. Learned A.G.A. has further submitted only on the basis of minor variations and contradictions in the statements of witnesses, the entire case of the prosecution cannot be disbelieved. Therefore, acquittal of respondents are bad in the eye of law.
12. Before we embark on testimony and the judgment of the Trial Court, the principle for interfering in appeal against acquittal would be required to be discussed.
13. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
14. The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
"Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant 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 appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant 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. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
15. The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
16. The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
17. The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."
18. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.
19. The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
20. In the background of the law discussed herein above, we will examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
21. We have perused the depositions of prosecution witnesses, documentary evidence supporting ocular versions and arguments advanced by learned counsel for the appellant.
22. The informant gave a missing report on 6.8.2006 in respect of his father-in-law. On 7.8.2006, the police arrested two persons namely Mukesh and Sanjay and on their pointing out, the dead body was recovered before two witnesses, namely, Farfu and Akhtar. Both the witnesses have made their signatures on recovery memo (fard baramadgi). However, both these witnesses were not produced before the Court to prove the recovery of the dead body. No identification of the dead body was done by the family members of the deceased which was in the decomposed position.
23. On 7.8.2006, on pointing out of accused Mukesh and Sanjay, the bloodstained knife, which was alleged to have been used for committing the murder of the deceased was recovered. Recovery memo of the same was prepared which was signed by two witnesses namely, Ahamad Ali and Imamuddin. However, neither of these two witnesses were produced before the Court to prove the recovery of the alleged weapon used in the commission of crime. No serological report was obtained regarding identification of the bloodstains found on the knife which was alleged to have been used in the crime.
24. The prosecution tried to establish its case on the confessional statements of two accused persons, namely, Mukesh and Sanjay, but in the recovery memo of the dead body of the deceased, it was also mentioned by the Investigating Officer that accused Mukesh had stated that they had committed the murder of deceased with the help of two accused persons, Sanjay and Raju alias Dhananjay, but after investigation the charge-sheet was presented only against accused Mukesh and Raju alias Dhananjay. Accused-Sanjay was declared juvenile and therefore, his trial was separated.
25. In the missing report, the informant had alleged that the loot of three buffaloes along with two calves was made but later on, he admitted that only two buffaloes and two calves were recovered from the open place. There is discrepancy in the F.I.R. and in the recovery memo.
26. The police had also lodged an F.I.R. in respect of police encounter along with accused persons but they have been acquitted by the Trial Court in that case being Sessions Trial No. 1051 of 2006. Accused Mukesh has also been acquitted under Section 4/25 of the Arms Act in respect of recovery of bloodstained knife, which was alleged to have been used in the murder of the deceased.
27. No independent witnesses was produced for proving the case. There was no eye-witness account of the murder of the deceased. Thus, the prosecution has failed to prove its case beyond reasonable doubts.
28. As per the prosecution version, the deceased went missing on 6.8.2006 at about 10.00 AM, but just after one day, the postmortem report of the dead body was conducted, which shows as under:
"foul smell present;
body skelton;
small maggots present."
29. Conditions of the dead body as mentioned in the post-mortem report within 48 hours is not worth believing and, therefore, it creates doubt regarding the prosecution case. The other prosecution witnesses have not supported the prosecution case. There are material discrepancies in the depositions of prosecution witnesses. Rather the prosecution has failed to produce any independent eyewitness, who can support the prosecution case and, therefore, we are unable to accept the submissions of the State counsel in view of the the judgments of the Apex Court which lay down the criteria for considering the appeals against acquittal. In that view of the matter, we are unable to satisfy ourselves with the submission of learned A.G.A. for the appellant-State and we concur with the findings of the Trial Court.
30. The judgment of the trial court is well considered and there appears to be no perversity in the findings recorded by the trial court.
31. In view of the above, application seeking leave to appeal is rejected.
Order on Government Appeal No.7908 of 2010
32. In view of the fact that application seeking leave to appeal has been rejected, the government appeal stands dismissed.
33. The Trial Court has acquitted the accused persons. This Court had admitted this appeal, but due to non appearance of respondents, N.B.W. was issued against them by this Court on 9.1.2017. Pursuant to the said order, respondent No. 2 appeared before the Court of C.J.M., Bulandshahar and was granted bail after furnishing bail bonds. However, respondent No.1, Mukesh Verma, though granted bail by the C.J.M. concerned, was sent to District Jail, Bulandsahar because he failed to furnish bail bonds before the Court below and as per Custody Certificate dated 22.11.2024, he is languishing in jail for 11 years, 06 moths and 26 days.
34. As the appeal against both the respondents is dismissed. Respondent No.1, Mukesh Verma, is directed to be released from the jail forthwith. So far as respondent No.2, Raju alias Dhananjay is concerned, his bail bond is cancelled and sureties are discharged.
35. A copy of this order be sent to the concerned Chief Judicial Magistrate, Bulandshahar as well as the Jail Authority for compliance. A report regarding compliance of this order be sent to this Court through Registrar General of this Court.
36. Let Trial Court's Record along with a copy of this judgment be sent to the trial court forthwith.
Order Date :- 7.3.2025 DKS