Allahabad High Court
State Of U.P. vs Anoop And 2 Ors. on 5 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- GOVERNMENT APPEAL No. - 34 of 2019 Appellant :- State of U.P. Respondent :- Anoop And 2 Ors. Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
Re: Criminal Misc. Application (Leave to Appeal)
1. Heard Sri Kailash Prakash Pathak, learned AGA appearing for the appellant-State of UP and perused the record.
2. Present government appeal has been preferred against the judgement and order dated 15.10.2018 passed by the Additional Sessions Judge, District Kasganj in Session Trial No. 157 of 2015 (State of UP vs. Anoop and another) along with connected Sessions Trial No. 216 of 2015 (State of U.P. vs. Mahesh) arising out of Case Crime No. 222 of 2015, under Sections 342, 302, 201 IPC, P.S. Kotwali Kasganj, District Kasganj, whereby the accused persons, who are three in number, have been acquitted from the charges levelled against them.
3. Prosecution story, in nutshell is that on the basis of an application moved by the complainant Viresh Kumar, a first information report was registered on 14.4.2015 at 11:00 hours at P.S. Kasganj, District Kasganj alleging therein that he is residene of village Nadarma, Police Station Sikandarpur, District Kasganj. The younger son Brijesh Kumar Bharadwaj s/o of Sri Gangadeen (chachiya sasurn of his brother Muklesh) lived at his home for the past four years. Brijesh Kumar got an agreement of land with one Omshiv s/o Shrinath. Omshiv could not pay the money in time, due to which land of Omshiv measuring 8 bigha was registered in the name of Brijesh Kuamr. Thereafter, Anoop s/o Rajendra @ Rajju (brother-in-law of Omshiv) (accused no. 1herein) and Mahesh (accused no. 2 herein) made pressure upon Brijesh that the land is his ancestral land, as such he may do sale deed in their favour, but Brijesh did not do that and he got sale deed registered in favour of one Shilendra in the year 2011. Since then the accused persons kept enmity with him, therefore, Brijesh started living with him. Before one year of the incident, accused Anoop asked one Sunil Kumar Mishra after calling him at his home that he may take Rs. 50,000/- to 1,00,000/- from meeting Brijesh but Sunil denied the same. Sunil narrated this story to all the villagers. On 10.04.2015 Brijesh went from his house saying that he was going to the house of his elder brother-in-law Rajesh Mishra. On 11.4.2015 Brijesh said on telephone that he was coming by train of 3:00 hours and he would reach Patiyali, but when he did not reach on the said date and time, on 13.4.2015 he along with his relatives Satish Poorn and others arrived at PS Kasganj in search of Brijeh. In the meantime, they got information that one dead body was found near the tubewell of of Hodiya of the city, which was sent for post-mortem at Etah. They went to Etah and in the mortuary they recognized the dead boy as Brijesh. The complainant got information that accused Anoop and others caught hold of Brijesh and beat him and took him towards their house. From CCTV footage dated 11.4.2015 it is evident that Anoop and other accused persons took him and on 13.4.2015 they committed the murder of Brijesh. On the basis of said information, a first information report was lodged.
4. In support of prosecution case, PW-1 Viresh Kumar, PW-2 Sunil Kumar, PW-3 Shilendra, PW-4 Raj Kishore, PW-5 Dr. P.K. Srivastava, PW-6 Chandra Prakash, PW-7 Satish Chandra, PW-8 Anil Kumar, PW-9 CO Vijay Bahadur Singh, PW-10 Retired SI Daan singh and PW-11 Raj Kamla were produced and examined before the Court below.
5. The judgement of acquittal has been passed by the Court below on the ground that it is a case of circumstantial evidence and the motive of the crime could not be proved conclusively, inasmuch the sale deed in favour of some other person was executed in the year 2011 whereas the offence had taken place in the year 2015 and the first information report was admittedly filed mainly on the basis of a CCTV footage of a shop in a busy market. PW-9, who was owner of the shop, has stated that at the time of incident he was not at the shop and he denied that he had given any CCTV footage to anyone and that apart even the picture of the persons covered in the CCTV footage is not clear and their faces are not revealed, the court below also found that same was not sent to the expert for forensic verification/report and was in a damaged condition and cannot be seen and therefore, the same cannot form the basis of even last seen evidence. It was specifically observed by the trial Court while appreciating the evidence on record that PW-1 Viresh Kumar in his statement has clearly admitted that as per Ext. Ka-3 (CCTV footage) the faces of the persons cannot been seen and only their hands and lower part of their body are seen and nobody is carrying any lathi and danda. It was alleged that although allegation was that the as per CCTV footage dated 11.4.2015, Anoop and three persons were taken away the deceased Brijesh while beating him from the busy market, however, no independent witness of the same has been produced. Therefore, it was found that on one hand the CCTV footage itself was not an admissible evidence as the same was not sent to the expert for verification/report and in any case the identity of the accused persons from the CCTV footage cannot be seen and the same has not been produced along with the certificate of the competent authority as required in a case of electronic evidence and was thus, not admissible in evidence. Under such circumstances, the Court below found that the prosecution could not prove its case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.
6. Challenging the impugned judgment, Sri Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that the strong motive was produced as ancestral land has come in favour of the deceased who sold the same to some other person and despite of insistence he did not sell the property to the person belonging to the family members from whom such ancestral property has come to in his hand. It is further submitted that there was a CCTV footage and last seen evidence has been produced, therefore, submission is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.
7. We have considered the submissions and have perused the record.
8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
9. 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 reappreciated 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"
10. 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.
11. 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.
12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
13. On perusal of record, we find that due to a conditional agreement the ancestral property belonging to the side of the accused person has come to the deceased Brijesh about four years ago from the date of incident, which was sold by him to a third person namely Shilendra Singh who was also produced as PW-3, therefore, as per the settled law that in a case of circumstantial evidence there has to be a strong motive, we find that the motive attributed is an old one, which too was not proved and there was no immediate cause for committing such crime particularly, when the other events to complete the chain are missing. We find that PW-1, who is the informant, has admitted in his cross examination that the sole basis of naming the accused persons is CCTV footage only and he further admitted that in the CCTV footage the identity of the accused persons is not disclosed and only hands and lower part of the persons standing that too unarmed are seen. He further admitted that this CCTV footage is of one shop existing in a busiest market. He had further admitted that he had not seen the accused persons beating the deceased or committing murder or disposing of his body in the tube well tank. He further stated that he narrated the incident only on the basis that he heard the same from some other person, meaning thereby he is a hearsay witness. PW-2 also categorically admitted that he had not seen anybody taking away the deceased or killing him. From the statement of PW-3 Shilendra who had purchased the property of Brijesh in the year 2011 has not revealed anything against the accused persons. PW-4 Raj Kishore, who is a panchnama witness, had stated that when he had signed panchnama, nothing was written on the same and he was declared hostile. Insofar as the PW-7 Satish Chandra is concerned, he had stated that one Rita has informed his niece that two persons were taking away the deceased to soot ki Mandi while beating them on way. However, it has not come on record that who has informed Rita and was also not named by the prosecution as witness. She was not produced by the prosecution witness. Therefore, the evidence of PW-7 is also only a hearsay evidence. Although PW-7 had stated that after seeing the CCTV footage dated 11.4.2015 he found that Anoop, Vishnu, Mahesh were taking away the deceased Brijesh while beating him, however, he had stated that he had not seen anybody beating of the deceased or taking him away or disposing of his body. PW-11Raj Kamla on whose pointing out the dead body was recovered, has also stated that he had not seen anybody committing the murder or disposing of the dead body. CCTV footage in absence of certificate of competent authority as required under law and there being no FSL report to prove its genuineness was also not admissible in evidence and in any case, the same was damaged and could not be seen by the trial Court. This fact was also admitted by PW-9 I.O. Vijay Bahadur Singh in his statement. He had also admitted that he was not handed the CCTV footage by the shop keeper and he was declared hostile.
14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a 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.
15. 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 :- 5.8.2022 Abhishek