Allahabad High Court
State Of U.P. vs Baljit Singh @ Parmanand And 3 Others on 6 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:81029-DB Court No. - 67 Case :- GOVERNMENT APPEAL No. - 169 of 2024 Appellant :- State of U.P. Respondent :- Baljit Singh @ Parmanand And 3 Others Counsel for Appellant :- A. K. Sand Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Satendra Tiwari, learned A.G.A appearing for the appellant-State of U.P. and perused the record.
2. The present Government Appeal has been preferred against the judgement and order dated 11.01.2024 passed by the learned Additional Session Judge/Special Judge (A.C.), Special Court No. 2, Bareilly arising out of Case Crime No. 2112 of 1998, under Sections 302/34 and 452 IPC in S.T. No. 556 of 2023 (State Vs. Baljit Singh @ Parmanand and others) connected with S.T. No. 10 of 2004 (State Vs. Rajesh @ Sanju @ Kaliya).
3. Thus, in fact there are four accused-respondents, namely, Baljit Singh @ Parmanand, Durgpal, Hori Lal, Rajesh @ Sanju @ Kaliya were accused of Case Crime No. 2112 of 1998, under Sections 302/34 and 452 IPC. Since both the Session Trial numbers leads to a common incident and for the sake of brevity, the learned Trial Judge has decided both the STs by the common judgment. Now, the aforesaid judgment is under the judicial scrutiny under Section 378(3) Cr.P.C. by the State of U.P.
4. From the aforesaid, it is clear that all the accused-respondents are charge sheeted accused of Chargesheet No. 518 of 1998 dated 27.12.1998, under Sections 147, 149 and 302 IPC. The learned Magistrate has taken cognizance of the offences on 06.01.1999 and being a cognizable offence, case was committed to the Court of Sessions vide order dated 30.07.2003 against Durgpal, Baljit Singh @ Parmanand, Hori Lal which was numbered as S.T. No. 556 of 2003.
5. So far as remaining accused persons Sanju Kaliya and Shivkant Shukla, their trials were segregated and separated vide order dated 23.12.2003 and when they have appeared, the S.T. No. 10 of 2004 was numbered but later on 08.09.2010, the aforesaid Session Trial No. 10 of 2004 was clubbed once again with the main S.T. No. 556 of 2003.
6. As per the prosecution case, the informant is Tulsi Ram Sharma, who has given a written Tehrir on 08.10.1998 by six in the morning and stated that the door of the house of Smt. Shanti Agrawal, wife of late Seth Ramanuj Dayal Agrawal, resident of 35A/10, Rampur Bagh, Bareilly was opened when he saw Smt. Shanti Agrawal, who was sitting on a recliner (a type of chair) in a dead condition and around her neck there was a knot. Some unknown persons had killed her. To this effect, a Case Crime No. 2112 of 1998 was registered under Section 302 IPC against unknown persons.
7. After lodging the FIR, the investigation of the case was started rolling and was done by I.O. Ravi Kumar Chaturvedi to file the report against Shivakant Shukla, Durgpal, Baljit Singh @ Parmanand, Hori Lal and Rajesh @ Sanju @ Kaliya under Sections 147, 148 and 302 IPC and, consequently, the charges were framed by the learned Trial Judge under Sections 302/34 and 452 IPC, thus, the charges were duly explained to the accused-respondents which they have denied and insisted to be tried.
8. As many as 14 prosecution witnesses were examined in support of the prosecution case and as many as 18 documents were exhibited during trial.
9. On 20.09.2016, the statement of the accused-respondents were recorded under Section 313 Cr.P.C. which they have denied the prosecution story to its core and submitted that this is a handy work of the police to win the laurels of his senior officials. The prosecution witness Tulsi Ram Sharma states that he is the Principal of Ramanuj Dayal Saraswati Shishu Mandir from the last one year. The said school is situate in the campus owned by late Shanti Devi and in the same campus there are residential quarters in which he used to reside. It is further contended that late Shanti Devi has got no issues but having a big chunk of immovable and movable property. In order to hush her entire property, somebody has eliminated her. In his examination-in-chief, the first informant revealed this fact to the Court that during her lifetime, she used to make a complaint against one Baljit Singh @ Parmanand that he had fabricated a forged Will and on this she was contesting the case before the Civil Court. She has further submitted that on this account in order to digest her immovable property this unfortunate stage has taken place.
10. Learned A.G.A. has strenuously argued that after the unfortunate demise of Shanti Devi, police had brought a dog squad and the said Sniffer dog rushed towards Baljit Singh @ Parmanand and that is how the evidence has been created against him. The P.W.-2 Brijwasi Lal Agarwal too have reiterated the same version but in his examination-in-chief he states that it has come to his knowledge that said Baljit Singh @ Parmanand had succeeded in fabricating a forged Will in order to hush the property of Smt. Shanti Devi Agarwal. On the basis of the said Will, Shanti Devi is contesting a case in the Civil Court rushed to the averment. He reiterated that on 08.10.1998 around 6:30 to 7:00 am, he reached on the information received from Tulsi Ram Sharma to his residential premises, he saw that Shanti Devi was sitting on a recliner and her neck was surrounded by surgical strip and when he reached, the police also arrived along with the dog squad.
11. Toeing the same lines, the testimony of P.W.-3 Surendra Kumar Agarwal, P.W.-4 Gulshan Anand, P.W.-5 Satish Chandra Sharma, P.W.-6 Pramod Khandelwal has reiterated the version of the FIR except the involvement of accused-respondents. From P.W-7 to P.W-14 are the formal witnesses and they have also revealed about the formal aspect on the issue.
12. After concluding the evidence, the learned Trial Judge critically analysed the testimony of the witnesses. In paragraph '28' of the Judgment, the learned Trial Judge has specifically stated that the testimony has to establish the case beyond the reasonable doubt. Admittedly, this case hinges upon the circumstantial evidence of which there is no ocular testimony to the incident. The prosecution story is that some unknown persons have entered into the house of Smt. Shanti Agarwal during the intervening of 7/8.10.1998 and in furtherance of the common object they have strangulated the neck of Shanti Devi and killed her.
13. To establish the prosecution case which hinges upon circumstantial evidence, five elements have to be proved by the prosecution: i. Motive, ii. Last scene, iii. Extra judicial confession, iv. Recovery/discovery of the weapon and v. Involvement of the accused persons in all the five events.
14. Thus, it is the prosecution has to join these dots and then involvement of the individual in commission of the offence has to be established. P.W.-9 submits that he has seen during the intervening of 7/8.10.1998 that Baljit Singh @ Parmanand was standing near Gandhi Udyaan and this witness in his 161 Cr.P.C. statement states that the said Baljit Singh @ Parmanand was remained present at the place of occurrence, normally who has committed the offence would flee away from the site.
15. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, there are five golden principles mentioned to prove the case based on circumstantial evidence, which are as follows :-
"(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved;
(v) 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."
16. Learned A.G.A. has raised much emphasis on the pointing out of a dog squad. It is simple and amusing that on the basis of the pointing out of a dog, a conviction of person would be recorded. The Court is in complete disagreement that the pointer of the dog has a circumstantial evidence against the individual accused, this could be one of the unit but cannot be a sole ground for the conviction.
17. Sri Satendra Tiwari, learned A.G.A. has laid down much emphasis on the motive part of the issue that the appellant Baljit Singh @ Parmanand was contesting the case regarding the alleged Will over the property. It is alleged that he has fabricated a forged Will of late Seth Ramanuj Dayal Agarwal. On this, he was claiming the ownership of the landed property of Smt. Shanti Devi Agarwal. In paragraph '50' of the Judgement after having the analytical approach, the learned Trial Judge has opined that as to whether after eliminating Shanti Devi, Baljit Singh @ Parmanand would become an owner of property left by her on the basis of alleged disputed Will of late Ramanuj Dayal Agarwal, the reply would be a big no because only after holding and deciding the authenticity of Will in favour of Baljit Singh @ Parmanand, he become the owner but after eliminating Shanti Devi Agarwal neither the case would be over nor the property would go in favour of Baljit Singh @ Parmanand. Therefore, the alleged motive contended by prosecution stands on no legs, the prosecution has reasonably failed to establish any strong motive qua said Baljit Singh @ Parmanand.
18. We have perused and examined the judgment under challenge and in paragraph '56' of the Judgment, the learned Trial Judge has rightly come to the conclusion that there is a strong motive to commit the offence by Baljit Singh @ Parmanand. So far as fingerprints are concerned, it cannot be said with the certainty that all the accused persons were present over the place of occurrence. P.W.-10 Ashok Katariya has turned hostile and there is an apparent contradictions in testimonies of P.W.-7 and P.W-8 giving a serious dent to the authenticity of the prosecution case.
19. Before proceeding further, it would be appropriate to take note of laws on the appeal against acquittal:-
i. in the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities."
ii. in Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.
iii. in a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.
iv. similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
v. Since, it is a Government Appeal against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence in the appeal against the acquittal. Recently, in the case of Mallapa and others Vs. State of Karnataka , the Apex Court has held as under :-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive ? inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
20. We are of the considered opinion that the reasoning adopted by the learned Trial Judge is sound and firm footed and has taken a plausible and possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.
21. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
Re: Government Appeal
1. Consequently, since the Criminal Misc. Application (Leave to Appeal) is rejected by order of date, the present Government Appeal is also dismissed.
Order Date :- 6.5.2024 Shivani