Allahabad High Court
State Of U.P. vs Smt. Rekha & 2 Others on 25 February, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 CR.P.C. No. - 36 of 2020 Applicant :- State of U.P. Opposite Party :- Smt. Rekha & 2 Others Counsel for Applicant :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned AGA for the State and perused the judgment of the trial court.
By moving this application under Section 378 (3) of the Cr.P.C. a prayer has been made by the State to grant leave to file appeal against the judgment and order dated 14.11.2019, passed by Additional District and Sessions Judge, Court No.13, Sitapur in Sessions Trial No. 878/2006, arising out of Case Crime No. 1790/2005, under Section 302 IPC , relating to Police Station Kotwali, District Sitapur, whereby the respondents/ accused persons have been acquitted of all the charges under Section 302 read with 34 of the I.P.C.
Necessary facts for the purpose of disposal of this application are that the informant Ram Pratap submitted an application before the Principal Secretary to the Chief Minister of U.P. on 28.11.2005 stating therein that his son Sudhir Kumar had solemnized marriage on 9.3.2002 with one Deep Mala @ Mala D/o Shri Ganesh Prasad, R/o Mohalla Pared, Jail Road, Sitapur. It was further stated that his daughter-in-law was not of good character and was having illicit relations with many persons and on 31.10.2003 she went to her ancestral house with his son and thereafter they started living at Mohalla Pared Jail Road, Sitapur by taking an accommodation on rent. He went many times to bring them back but his daughter-in-law neither herself returned nor allowed his son to return to his home. On 15.6.2005 he went to the house of his son but his daughter-in-law hurled filthy abuses and he returned back to his home.
It was further stated that on 16.6.2005 at 3.00 P.M. he got an information that his son had died. He along with his family members reached at the house of his son at 2.00 A.M. in the night and was shocked to see that all the inmates of the house were sleeping and the dead body of his son was lying unattended. He informed the Police Station Kotwali, Sitapur on 17.6.2005 and brought the dead body to his home, however none from amongst the family members of his daughter-in-law accompanied him. He was having grave suspicion that Ganesh Prasad, Smt. Rekha, Smt. Deep Mala, Km. Pooja, Ram @ Lalu Shyam @ Kalu and Asit Kumar Awasthi @ Vijju had murdered his son by forcibly administering poison.
On the basis of above information a First Information Report was lodged as Case Crime No. 1790 of 2005, under Section 302 IPC on 5.12.2005 at 12.30 P.M. at Police Station Kotwali Sitapur and the investigation was entrusted to Inspector Mahendra Nath Dubey, who recorded the statement of the informant and on his identification, also inspected the spot and prepared a site plan (Ex. Ka-5). He also recorded the statement of various witnesses, arrested the accused persons and thereafter on his transfer the investigation of the case was entrusted to S.S.I. Shri Alok Tiwari.
The Second Investigating Officer after further investigating the case and finding sufficient evidence, submitted charge sheet (Ex. Ka-6) agaisnt the respondents no. 1 to 3.
The prosecution apart from relying on various documentary evidence, presented following witnesses in its support.
(I) P.W.1- Ram Pratap (Informant) (II) P.W.2- Constable Sunder Lal.
(III) P.W.3-Ashish Kumar.
(IV) P.W.4- Dr. A.K. Arya.
(V) P.W.5- Inspector Mahendra Nath Dubey.
(VI) P.W.6- S.S.I. Ashok Kumar Tiwari/ (VII) P.W.7- Sanjai Prasad.
After completion of evidence of prosecution, statement of the respondents/ accused persons was recorded under Section 313 of the Cr.P.C. wherein the respondents have denied to have caused death of the deceased Sudhir Kumar by administering poison and further stated that false evidence has been given by P.W.1- Ram Pratap and P.W.3- Ashish Kumar and also that the deceased was in deep mental depression as he was an addict of taking drugs and injections.
Respondents in their defence testified land lords of the accommodation wherein deceased was living as C.W.1- Sharwan and C.W.2- Mina.
The trial court after appreciating the evidence available on record found that the prosecution has failed to bring home the charges against the respondents no.1 to 3 and therefore acquitted the respondents no.1 to 3 of the charges framed against them. It is also necessary to clarify here that co-accused Ganesh Prasad died during the course of the trial and the trial was abated against him.
Aggrieved by the impugned judgement and order State has challenged the same by filing the instant appeal and has also moved an application for grant to leave to file appeal.
Learned AGA in support of the application for grant of leave to appeal submits that the trial court has committed grave error in appreciating the evidence available on record and therefore has wrongly acquitted the respondents while the case of the prosecution was proved beyond reasonable doubt before the trial court.
It is further submitted that the trial court has also committed illegality in giving much weightage to the minor contradictions appearing in the testimony of the prosecution witnesses of the fact, namely, P.W.1- Ram Pratap and P.W.3- Ashish Kumar. It is also submitted that the trial court has not considered the evidence of prosecution in right perspective and has relied on the testimony produced by the respondents/ accused persons and therefor the trial court has materially erred in appreciating the law laid down by Hon'ble Supreme Court pertaining to the appreciation of evidence.
He submits that the view adopted by the trial court is erroneous and could not be sustained and thus submits that the State be granted leave to file the instant criminal appeal in order to challenge the impugned judgment and order of acquittal.
Having heard learned AGA for the State and having perused the judgment of the trial court in the back drop of submissions made by learned AGA what we find is that the trial court has recorded the finding of acquittal of the respondents/ accused persons on the following grounds:-
(I) The death of the son of informant had occurred on 16.6.2005 while the application on the basis of which the FIR was registered has been submitted on 28.11.2005 and no explanation of such a long delay has been given.
(II) Contrary to the statement of P.W.1- Ram Pratap, there is no evidence on record which may suggest that the wife of deceased Sudhir had insisted his husband to live alone.
(III) When on the date of occurrence informant had knowledge of the names of the accused persons why in application dated 17.6.2005 which was submitted by the informant at Police Station Kotwali, Sitapur the names of accused persons were not disclosed. Therefore the evidence of P.W.1- Ram Pratap (informant) is hear-say.
(IV) The informant has admitted in his cross examination that Deep Mala W/o his son, Sudhir is an educated lady and she earned money by giving tuitions to the students.
(V) Informant P.W.1- Ram Pratap is an educated person and has admitted that the application dated 17.6.2005 written by his nephew- Anil Kumar in the Police Station, was given by him.
(VI) In the inquest report dated 17.6.2005 pertaining to the deceased Sudhir it has been recorded in the column earmarked for the opinion of the "Punch" that all "Punchans" were of the view that the deceased Sudhir Kumar was a drug addict and was also used to take sedative tablets and he died of the same.
(VII) P.W.1- informant Ram Pratap and his son P.W.3- Ashish had also put their signatures on this inquest report.
(VIII) Independent witness C.W.1 and C.W.2 who are landlord of the house wherein deceased Sudhir was living with his wife Deep Mala have also testified that deceased Sudhir was in a habit of taking drugs and sedative tablets and due to this habit he was not having any permanent job.
(IX) In the viscera report poison 'aluminum phosphate' has been found and the quantity of the poison found in the viscera has not been mentioned in the report and also that viscera report dated 25.2.2005 is a photo copy which has not been proved by any officer and is not admissible under Section 293 of the Cr.P.C.
(X) No prosecution witness has been presented who claimed to have seen that the poison was given to the deceased by respondent or by anyone against his will.
We have very carefully scanned the evidence of the prosecution witnesses, namely, P.W.1-Ram Pratap and P.W.3-Ashish Kumar, who are father and son, in the background of the submissions made by learned A.G.A. and are of the considered view that the trial court has not committed any illegality or, to say, any irregularity in appreciating the evidence available on record as there are inherent contradictions and inconsistencies in the statement of these prosecution witnesses.
The instant case was based on circumstantial evidence as no one had claimed to have seen that poison had been given to the deceased by respondents in his sight. It is also an admitted and established fact that the deceased-Sudhir and his wife-Smt. Deepmala were living separately in a rented accommodation, the landlords of which were C.W.1-Shravan and C.W.2-Meena.
The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952 wherein Hon'ble Supreme Court held as follows:
"12 ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused"
Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
"1. the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
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."
In Jaharlal Das v. State of Orissa, MANU/SC/0586/1991 : (1991) 3 SCC 27, it was held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to Rule out a reasonable likelihood of the innocence of the Accused. It is further held in Para 8 that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
Therefore, keeping in view the above settled legal position the law pertaining to cases based on circumstantial evidence can be summarized in following terms:
1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2. The circumstances should unerringly point towards the guilt of the accused;
3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having been committed by a person other than the Accused.
It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the prosecution before the court below. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. Therefore it is incumbent for this Court to see whether the Court Below has committed any error in coming to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt or whether the view of the Court below is a probable view.
We are also of the considered view that there cannot be two standards to appreciate the evidence of prosecution and defence witnesses. Per contra, it is the reliability and truthfulness of a witness which will make his/her testimony as reliable. It is also a rule of law that the law favours quality rather than quantity of evidence and in the background of this principle the conviction could be recorded even on the testimony of a single witness provided the testimony of such a witness is found wholly reliable.
Another golden principle which runs through the web of criminal jurisprudence is that it is always the duty of the prosecution to prove the guilt of the accused person(s) beyond reasonable doubt and if on a reasonable appreciation of evidence two views appear to be possible, then the view which is favourable to the accused person(s) should be adopted. However, the Court is required to put itself on guard that benefit of each and every doubt could not be claimed by the accused person(s). It is only reasonable doubt, benefit of which could be extended to the accused of a crime. Keeping in view the above propositions of law, in an appeal from acquittal, very strong and cogent reasons are required for interfering in the judgment of acquittal, and if, the findings of the trial court are based on the evidence available on record and there is nothing which may brand the appreciation of evidence done by the trial Court as perverse, the finding of acquittal should not be easily disturbed.
It is also to be recalled that in the case of Ajmer Singh Vs. State of Punjab, 1953 SCR 418, it has been held that after an order of acquittal has been made, the presumption of innocence is further reinforced by that order and the trial court's decision can be uprooted only for a very substantial and compelling reasons.
In Sanwat Singh & Others Vs. State of Rajasthan, AIR 1961 SC 715, while upholding the above-mentioned principle, it was held that the appellate court has full power to review the evidence upon which the acquittal has been founded and the phraseology "substantial and compelling reasons" or "strong reasons" are not intended to curtail the 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 the appellate court should not only consider the facts having a bearing on the reasons given by the court below in support of its order of acquittal in arriving at a conclusion but should also express reasons in its judgment, which lead it to hold that the acquittal was not justified.
Similar principle was enunciated in Sadhu Sharan Singh Vs. State of Uttar Pradesh & Others reported in (2016) 4 SCC 357, wherein it was opined that in an appeal against acquittal the presumption of innocence of the accused is reinforced and the appellate court would interfere with the order of acquittal, only when there is perversity of fact and law. It was also held that where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in place of view of the trial court. It is only when the approach of the trial court in acquitting the accused person is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion therefrom, the appellate court would not interfere with the order of acquittal.
Keeping in view the above legal position and in view of the inherent weaknesses appearing in the evidence of the prosecution witnesses of fact, namely, P.W.1-Ram Pratap and P.W.3-Ashish Kumar, we are of the considered opinion that the view adopted by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or either illegal, illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.
Since application for grant of leave to appeal has been rejected, the appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan,J.) (Devendra Kumar Upadhyaya,J.)
Order Date :- 25.2.2020
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