Allahabad High Court
Lekhraj vs State Of U.P. And 2 Others on 10 October, 2014
Bench: Rakesh Tiwari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 36 Case:-CRIMINAL MISC. APPLICATION DEFECTIVE U/S 372 CR.P.C (LEAVE TO APPEAL) No. 6 of 2014 Applicant :- Lekhraj Opposite Parties:- State Of U.P. and others Counsel for Applicant:- Sri V.P. Gupta Counsel for Opposite Parties :- Govt. Advocate,Mohd. Afzal Hon'ble Rakesh Tiwari,J.
Hon'ble Mrs. Vijay Lakshmi,J.
( By Hon'ble Rakesh Tiwari, J.)
1. Heard learned counsel for the applicant-appellant on Delay Condonation Application and perused the affidavit filed in support of this application.
Order on Delay Condonation Application:-
2. It is reported by the Stamp Reporter in his report dated 7.1.2014 that the Criminal Appeal is beyond time by 74 days.
3. Learned counsel for the applicant-appellant submits that the victim is a poor person having no source of income, hence he could not file the criminal appeal along with the application for grant of leave to appeal within time.
4. After hearing learned counsel for the applicant-appellant and the learned AGA for the State-respondents, we are of the view that normally a poor person should not be deprived of his right to appeal merely because he has no source of income or could not arrange expenses for filing the appeal until and unless there are strong reasons for not condoning the delay. Law is equally applicable for every body whether he is poor or rich. The learned AGA for the State-respondents has no objection for condonation of delay. We, therefore, in the aforesaid circumstances, find the cause shown to be sufficient and condone the delay in filing the appeal. The Delay Condonation Application is accordingly, allowed.
5. The Application for Grant of Leave to Appeal along with Criminal Appeal is now heard on merit.
Order on Application for Leave to Appeal :-
6. Before dealing with the facts of the case, grounds of acquittal in appeal and the evidence of the witnesses we would like to decide the application for grant of leave to appeal.
7. Learned counsel for the appellant has then addressed us on the application for leave to appeal. He argues that right of appeal is a creation of statute and procedure of filing an appeal is also provided therein. According to him, where the victim is legally incapacitated to file appeal against acquittal even though the judgment of acquittal may be suffering from fundamental legal vices or extraneous factors, his right to appeal is denied. Requiring the victim to move an application for leave to appeal in Allahabad High Court by an order passed by an Hon'ble Judge, on the administrative side compelling the appellant to file an application for leave to appeal, is directly opposed to the spirit of the amendment inserted by Central Act No. 5 of 2009 practically negativing in granting justice to the victim.
8. It is urged that the newly inserted proviso in Section 372 Cr.P.C. does not postulate filing of any application by the victim praying for leave to appeal and there is no provision in Cr.P.C. that only on such leave being granted, further steps in the prosecution of the appeal being preferred by the victim, is to be considered.
9. It is also submitted that the appellant who is the victim of the aforesaid assault made upon him, preferred an appeal before this Court as envisaged under Section 372 Cr.P.C. against the judgment of acquittal passed by the Addl. Sessions Judge aforesaid, thereupon the Stamp Reporter (Criminal) pursuant to aforesaid administrative order has in his report has compelled the appellant for filing an application seeking leave to file appeal along with the affidavit. The argument advanced by the learned counsel for the appellant in this appeal is that the appellant has been compelled by the Stamp Reporter to move an application for leave to appeal along with the appeal is not supported by any material on record because the Stamp Reporter has not compelled the learned counsel for the appellant to file an application for leave to appeal under Section 372 Cr.P.C.
10. It is contended that the amendment inserted in Section 372 Cr.P.C. confers right of appeal upon the victim and does not provide the victim to seek any prior leave for presenting such an appeal. Thus, it is not necessary as a matter of law that an application for leave to entertain the appeal ought to have been preferred first and only after the leave to be granted by this Court, the appeal might have preferred by the victim against a judgment and order of acquittal whereas provisions of Section 378 Cr.P.C. which entitles the State to file an appeal in cases of acquittal is distinct right and procedure cannot be imported in the valued right to prefer an appeal by the victim under the separate provisions inserted in Section 372 Cr.P.C.
11. The Code of Criminal Procedure was further amended by Code of Criminal Procedure amendment Act 2008 (Act 5 of 2009) which came into force on 31.12.2009. The relevant provisions of the Amendment Act 5 of 2009 for the purpose of deciding the question involved in these cases are:(1) Introduction of the definition of 'victim' under Section 2(wa); (2) Insertion of the proviso to Section 372; and (3) Insertion of Section 357A; and (4) Insertion of proviso to sub-section (8) of Section 24. The proviso to Section 372 Cr.P.C. reads, as under:-
"Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court"
12. The purpose and object of amendment appears to be to provide relief to the victims of the offence who had earlier no role to play in criminal proceedings and were merely a silent spectator, though their interest was seriously involved in the lis as they were the really affected parties. The amendments in question gave a remedy to the victims to challenge the acquittal in appeal u/s 372 Cr. P.C. It is a right conferred upon the victim to prefer an appeal on the limited grounds mentioned in the proviso to Section 372 of the Code. It is a separate, distinct and independent statutory right and is not dependent or is subservient to the right of appeal of the State. Both the State and the victim can file appeals independently without being dependent on the exercise of right by the other. Under the proviso to Section 372, the victim was given statutory right to file an appeal not only against acquittal but also if the conviction was for a lesser offence or he was aggrieved with the quantum of compensation. State does not have any right to appeal in case of inadequate compensation had been awarded to the victim.
13. On being enquired as to why application for grant of leave to appeal is being required to be filed by the informant when there is no such provision in the Cr.P.C., the Stamp Reporter (Criminal) has submitted a photo-copy of an administrative order dated 2.12.2011 addressed to Registrar General passed by Hon'ble Ravindra Singh, J, which reads as under:
"It is noticed that the Criminal Appeals under section 372 Cr. P.C. are being filed without leave to appeal, whereas against the same judgment of acquittal, the Government Appeals, under section 378 Cr.P.C. are being filed with leave to appeal.
Therefore, the Stamp Reporting Section (Criminal) may be directed that the criminal appeals under section 372 Cr. P. C. may be accepted with leave to appeal along with affidavit.
Dated: 2.12.2011 Justice Ravindra Singh, J"
14. This order aforesaid does not indicate that any judicial findings were recorded by His Lordship before giving directions to the Registrar General.
15. In the case of M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd. & Ors. CRM-790-MA-2010 (O&M) decided on 18th March, 2013, a Full Bench of the Punjab & Haryana High Court has held as under:
"The right conferred on a 'victim' to present (C) & (D) appeal under proviso to Section 372 is a substantive and independent right which is neither inferior to nor contingent upon the filing of appeal by the State in that case.
Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code."
16. In the case of 'Bhavuben Dineshbhai Makwana vs. State of Gujarat & ors.', 2013 Crl.L.J. 4225, Full Bench of Gujarat High Court answering the reference on question number (3) 'If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State?', held thus :-
'If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not.' (Highlighted by us)
17. Accordingly, it is held that no leave to appeal is required for the victim to prefer an appeal on the grounds mentioned in proviso to Section 372 Cr.P.C. as he has indefeasible statutory right to file the appeal.
18. This Criminal Appeal (Defective) No. 6 of 2014 along with Criminal Misc. Application (Leave to Appeal) Defective No. 6 of 2014, under Section 372 Cr.P.C. has been preferred challenging the impugned judgment and order dated 25.7.2013 passed by the Addl. Sessions Judge, Court No. 14, Meerut in S.T. No. 166 of 2012 (State Vs. Amar Singh alias Chhote and another) acquitting the accused- respondents of the charges framed against them under Sections 364, 302 read with Section 34 and 201 read with Section 34 I.P.C.
19. The impugned judgment is challenged on the ground that though the prosecution had succeeded in establishing its case beyond reasonable doubt yet the trial Court illegally and arbitrarily has acquitted the accused persons ignoring credible and cogent evidence of eye witnesses of the offence.
20. On 15.5.2010 upon receiving an information that the dead body of a boy was lying in the lake situated in the forest of Sultanpur near village Garh, an application was moved by appellant- complainant Lekhraj son of Sadi Ram resident of mohalla Mirdhapada P.S. Garh-Mukteshwar, District Ghaziabad to the SO, P.S. Parikshitgarh, Meerut to the effect that his son also had not come back to the house since yesterday. Upon this, he along with another son Grahan Singh and other persons reached at the spot and seeing the dead body he identified it as that of his son Kishori.
21. It is averred in the complaint that about 3 years ago, the son of complainant namely, Suresh along with the daughter of Asfaq son of Mida had gone out and had not come till date. Marpit and quarrels were said to have taken place between the complainant and Asfaq and litigation was also going on between them. The complainant also averred therein that after committing the murder and burning the dead body of his son Kishori, Alftaf & Naushad, sons of Asfaq and Asfaq son of Mida resident of Mohalla Mirdhapada threw it in the lake. It is when he enquired in the village about his missing son, his nephew Pramod son of Hukum Singh resident of mohalla Sanga Qusba and P.S. Garhmukteshwar, Ghaziabad and son of the complainant namely, Grahan Singh told him that they had seen the victim going along with the accused.
22. Pursuant to the report, case crime no. 258 of 2010, under Sections 364,302 and 201 IPC was registered. After investigation, the I.O. submitted charge sheet against all the accused persons. The case on being committed to the Court of Session, the charges under Sections 364,302/34 and 201/34 IPC were framed against the accused persons, who denied the charges and claimed trial.
23. In order to prove its case the prosecution examined eleven witnesses, namely, Lekhraj (PW-1) Smt. Hemlata (PW-2), Pramod (PW-3), Om Prakash (PW-4), Grahan Singh (PW-5), S.I.Mohan Singh (PW-6) Con. No. 2455, Mahesh (PW-7), SI Om Prakash (PW-8), S.I. Pawan Kumar Sharma (PW-9), SI Somvir Singh (PW-10) and Dr. Pankaj Sharma (PW-11) whereas the accused persons in their statements under Section 313 Cr.P.C. denied the entire circumstances appearing in story against them stating that they have been falsely implicated in this case.
24. After considering the evidence, material on record and hearing counsel for the parties, the trial Court acquitted the accused-respondents vide impugned judgment and order dated 25.7.2013 holding that the prosecution has failed to prove its case beyond all reasonable doubts.
25. The judgment impugned shows that learned trial Court has acquitted the accused persons on the ground that the case is one of circumstantial evidence and there is not even an iota of evidence against the accused regarding abduction or murder of Kishori (since deceased). Neither he was seen going in the company of the deceased nor in fact, there was any incriminating positive evidence against them. It is only on the basis of suspicion and on account of old enmity, the complainant lodged an FIR naming Altaf and Naushad sons of Asfaq as well as Asfaq son of Mida but after investigation the chargesheet under Sections 364,302 and 201 IPC was submitted against accused persons Amar alias Chhote son of Tejpal, and Arjun Sharma son of Adesh Sharma, who were not named in the FIR.
26. The evidence adduced before the trial Court shows that Lekhraj (PW-1), who is the complainant in this case, stated in his evidence that neither any occurrence had taken place in his presence nor he had seen his son Kishori going in the company of the accused persons. He further stated that he had no knowledge whether his son Kishori had gone along with any person or alone or not ?. The accused persons were innocent persons and they had no concern with this case. Smt. Hemlata (PW-2) in her statement stated that on 14.5.2010 at about 7.00 P.M. she and her brother Kishori (since deceased) were going to their house in mohalla Mirdhapada, accused Arjun Sharma and Amar Singh had not met them on way. She also stated that her brother had neither accompanied the accused persons to take dinner on motorcycle at Nanka Kua nor she had told any such things to her father. She was declared hostile by the prosecution. Pramod (PW-3) also stated in his evidence that he had not seen Kishori (since deceased ) sitting on the motorcycle along with the accused persons. This witness was also declared hostile by the prosecution. Similar is the statement of Om Prakash (PW-4), who also stated that they had not seen Kishori (since deceased) in the company of the accused persons for taking dinner at Nanka Kua and were declared hostile by the prosecution. Grahan Singh (PW-5) has also stated in his evidence that he had not seen his brother Kishori (since deceased) in the company of the accused persons and that he had no knowledge who had committed the murder of his brother. He further stated that the accused persons had not called his brother from his house. Thus, we find that the prosecution witnesses have not supported the prosecution case as most of them have turned hostile.
27. In the cases of circumstantial evidence rendered in Baba Ram Das alias Tarlok Singh versus State of Punjab (11/1998 C.C.R. page-16, Punjab and Haryana), Shyamal Shah and others versus State of West Bengal (2014 ACR-444 (SC), Shyodan versus State of U.P. (2014)(1) A.A.R. 337, Alld. High Court), State of Gujrat versus Ratan Singh alias Chini Bhai (2014 (1) A.A. R. 272, SC), Padala Veera Reddy versus State of A.P. and others, AIR 1990, SC-79 and State of U.P. versus Ashok Kumar Srivastava, 1992 Crl.L.J. 1104, it has been held that the chain of circumstantial evidence is to be complete for holding that the accused and none other would have committed offence and it should be unbroken to point out to the guilt of the accused persons only and no other.
28. The law firmly entrenched by the Apex Court is that there can be no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence in view of the decision rendered in Hanumant Govind Nargundhkar versus State of M.P., AIR 1952 SC-343 & Mula Devi versus State of Uttarakhand, AIR 2009 SC-655.
29. In the case of Ram Singh versus Sonia, AIR 2007 SC-1218 the Apex Court has held that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a complete chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis regarding the guilt is possible.
30. From the testimony of P.Ws. 1 to 5 the chain of circumstantial evidence being incomplete, therefore, in our considered opinion, the trial Court has not committed any illegality or infirmity in acquitting the accused persons through the impugned judgment and order dated 25.7.2013 which requires no interference by this Court.
31. For the reasons stated above, the Criminal Appeal lacks merit and is dismissed at the admission stage itself.
Dated 10.10.2014 CPP/-