Allahabad High Court
Netrapal vs State Of U.P. And 4 Others on 21 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 67 of 2022 Appellant :- Netrapal Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Garun Pal Singh,Vikas Sharma Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. Occasioning dissatisfaction the present criminal appeal purported to be under Section 372 of the Criminal Procedure Code, 1973 (Cr.P.C.) has been instituted by the appellant-informant against the judgment and order dated 6.1.2018 passed by Additional District & Sessions Judge, Court No.3, Hathras in Session Trial No.615 of 2005, (State Vs. Lekhraj & others) in Case Crime No.254 of 2004, P.S. Sikandarau, District Hathras purported to be under Section 302 IPC acquitting the accused herein, who are four in number.
2. The present appeal was presented before this Court on 4.4.2018 and on 6.4.2018 the records were summoned.
3. On 23.5.2018, 8.11.2021, 31.1.2022, 7.2.2022 and 11.2.2022, this Court passed the following orders:-
On 23.5.2018 "Passed over on the illness slip of Sri Garun Pal Singh, learned counsel for the applicant.
List after two weeks."
On 8.11.2021 "On the request of learned counsel for the applicant, list this case on 29.11.2021."
On 31.1.2021 "Perusal of the order sheet reflects that lower court record has been received.
Sri Garun Pal Singh, learned counsel for the applicant states that he was under the impression that the lower court record has not been received as yet. He is praying for adjournment of the case.
On his request, the case is passed over for the day.
List this appeal on 7.2.2022 in the additional cause list."
On 7.2.2022 "A prayer for adjournment has been made on behalf of Sri Mukesh Kumar Verma, Advocate holding brief of Sri Garun Pal Singh, learned counsel for the applicant.
We find that on the earlier occasions, the case was passed over on the prayer made by learned counsel for the applicant.
In the interest of justice, case is passed over for the day.
Lit this case again in the next cause list."
On 11.2.2022 No one is present on behalf of the applicant even in the revised call of additional cause list.
From perusal of the order sheet, we find that on most of the occasions the case was passed over on the illness slip sent by the learned counsel for the applicant or on his request.
As already held by this Court in number of cases that leave application filed under Section 378(3) Cr.P.C. is not required in the appeal filed by the victim under Section 372 Cr.P.C. like the present appeal. A reference may be made to the order dated 4.8.2021 passed in Criminal Appeal U/S 372 Cr.P.C. No. 123 of 2021 (Rita Devi vs. State of U.P. and another). As such, the application for leave to appeal stands rejected as not maintainable and / or not required.
List this case peremptorily on 22.2.2022 for admission.
It is made clear that in case on the next date no one is present on behalf of the applicant, this Court may proceed with the appeal with the assistance of learned AGA.
4. Perusal of the order so passed as extracted herein above reveals that the appellant is a avoiding hearing of the matter despite the fact that the appeal is yet to be admitted. Even on 11.2.2022 this case was marked peremptorily and it was made clear that in case on next date fixed nobody is present on behalf of appellant, this Court would proceed with the assistance of learned AGA.
5. Notably today also nobody appears to press the appeal and thus this Court has option but to proceed with the appeal with the assistance of the learned AGA.
6. Briefly stated facts as unfolded in the prosecution story are that the first informant being Sri Kamal Singh had submitted a written complaint with an allegation that his mother being Smt. Goma Devi resident of village Garhiya on the intervening night on 25/26.6.2004 had gone to the field for answering the nature's call and about 10.00 p.m. in the night, the accused, who are four in number resorted to gun shot firing which was penetrated into the ears of the first informant his uncle being Chob Singh and Munna Lal son of Devi Ram and Hoti Lal son of Jahiri Singh along with the others and they thereafter proceeded to save her in the moonlight and they could easily recognise the faces of the accused therein.
7. As per the written complaint the aforesaid four accused while running away from the place of occurrence had threatened that they will not permit the complainant side to live in the village and after receiving gunshot injuries Smt. Goma Devi (since deceased) was taken to Malikhan Singh Hospital, district Aligarh for medication, however, as she is sustained grievous injury and she was suffering from critical situation she was referred to one of the hospital in New Delhi and thereafter the mother of the first informant along with his brother Lekhpal and other family members proceeded to New Delhi. However, it was further alleged that the mother of the deceased succumbed to gunshot injuries on 27.6.2004.
8. In between on the basis of the complaint so lodged by the first informant a first information report was lodged under Section 307 of the IPC. However, consequent to the death of the deceased, the same transformed into Section 302 IPC in Case Crime No.254 of 2004, Police Station Sikandrarau, District Hathras.
9. As per the prosecution the deceased suffered the following injuries:-
1. Multiple firearm wounds size -.5 cm x.5 cm .to .5 c.m. x .3 cm with traumatic swelling in an area of 10 cm x 6 cm on left side neck.
2. Multiple firearm wounds ............charring 0.5x0.5 c.m. to 0.2x0.2 cm in arm area of 30x12 c.m. a post aspect of left arm.
3. Multiple firearm wounds of only 0.5x0.5 c.m. to 0.2x0.2 c.m. ....laing charring in area of 27x20 cm as scapular area & adjacent area of chest below and right including right scapular region.
Pain : all injuries .............xray. All an afresh... All caused by fire arm.
10. A postmortem was also conducted on 28.6.2004 wherein the cause of the death was shown to be A. Shotgun pellet wound in area of 36x 36 present over the back of chest on left size back of left arm and on left side of the neck. The pellets have pierced the lungs and left common candid in the neck of described in neck structure.
b. Abrasion 1X0.5 cm present over lower on the part of left side of chest.
Opinion -Death is due to hemorrhage and shock consequent upon injury to the neck structure via injury no.1. Injury no.1 is antemortem, around one day old and is earned by smooth boned firearm. Injury no.1 is sufficient to cause death in ordinary course of nature.
11. Consequent to the lodging of the first information report one S.I. Netrapal Singh PW9 was nominated as the Investigating Officer. It is alleged that he conducted investigation while preparing site plan proceeded with recording of the statement of the prosecution witnesses and other independent witnesses while taking affidavits also and thereafter submitted the charge sheet against the accused herein, who are four in numbers under Section 302 of the IPC in Case Crime No.254 of 2004. The case was committed to trial before sessions charges were read over to the accused herein. The accused denied charges and claimed to be tried.
12. In order to bring home the charges the prosecution produced following witnesses namely PW1 Hotilal S/o Jahri, PW2 Chob Singh s/o Devi Ram, PW3 Netrapal s/o Dharmjeet, PW4 Munna Lal s/o Devi Ram, PW5 Panna Lal, PW6 Amar Singh PW7 Inspector Man Singh Yadav, PW8 S.I. Iqbal Ahmad, Delhi Police, PW9 S.I. Netrapal Singh and PW10 Dr. V.K. Gupta.
13. So far as the defence is concerned they submitted paper no. 216 along with an affidavit and paper no.217 being a sale deed.
14. The learned Trial Court by virtue of the judgment and order dated 6.1.2018 passed in Session Trial No.615 of 2005, (State Vs. Lekhraj and 3 others) acquitted the accused under Section 302 IPC in Case Crime No.254 of 2004.
15. Challenging the same now the appellant who happens to be the son of the deceased and the real brother of first informant is before this Court due to the reason being that the first informant who happens to be a real brother of appellant expired before the commencement of the trial.
16. This Court at the present moment is surrounded with a situation wherein the judgment of the acquittal is under challenge. Cautious approach is to be adopted while exercising appellate jurisdiction as the accused herein is benefited with double presumption of innocence. In other words this Court while re-appreciating evidence so sought to be adduced by the prosecution as well as ocular testimony is to find out the fact whether the learned trial court had committed palpable illegality while misreading the evidence and proceeds towards wrong direction nutritions perversity.
17. Without burdening the present judgment with the plethora of decision of the Hon'ble Apex Court, this Court finds necessary to only refer to certain paragraphs of the judgment in the case of Guru Dutt Pathak Vs. State of U.P. (2021) 6 Supreme Court Cases 116, wherein the Hon'ble Apex Court had summed up the extent of interference while exercising appellate jurisdiction. The Hon'ble Apex Court in paragraphs 14, 15, 16 have observed as under:-
14. We are conscious of the fact that this is a case of reversal of acquittal by the High Court. Therefore, the first and foremost thing which is required to be considered is, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned C trial court?
15. In Babu v. State of Kerala³, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196-199) "12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/ or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court.
13. In Sheo Swarup v. King Emperor¹4, the Privy Council observed as under: (SCC OnLine PC : IA p. 404) ".... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State ¹5, Balbir Singh v. State of Punjab¹6, M.G. Agarwal v. State of Maharashtra¹7, Khedu Mohton v. State of Bihar¹8, Sambasivan v. State of Kerala ¹9, Bhagwan Singh v. State of M.P.20 and State of Goa v. Sanjay Thakran²1.) C
15. In Chandrappa v. State of Karnataka22, this Court reiterated the legal position as under: (SCC p. 432, para 42) '42.... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate e court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'
16. In Ghurey Lal v. State of U.P.23, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh24, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) '20. ... An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne25, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with judgment of acquittal by the High Court. The circumstances include: Banne case 25, SCC p. 286, para 28)
i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; a
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.' A similar view has been reiterated by this Court in Dhanapal v. State26. 19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied) C
16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in para 20 of the aforesaid decision, which reads as under: (Babu case³, SCC p. 199) d "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. 27, Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 28, Triveni Rubber & Plastics v. CCE2⁹, Gaya Din v. Hanuman Prasad³0, Arulvelu v. Statell and Gamini Bala Koteswara Rao v. State of A.P.31)"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police32, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
18. Heard Sri Ratan Singh, learned AGA, who appears for the State of U.P. and with his assistance the present appeal is being decided.
19. Before driving into the present proceedings in order to determine as to whether the judgment of the acquittal passed by the court below is correct or not, the testimony of the prosecution witnesses is to be first analyzed.
20. One Sri Hoti Lal son of Jahri appeared as PW1, according to him he is the resident of the same village where the deceased resided and on the fateful day he had gone to the shop of Brhamchari for purchasing certain items and there at he heard a gunshot fire which was coming from western side and at that point of time, PW2 Chob Singh son of Devi Ram also shouted that firing has been resolved to and then PW1 proceeded towards the house of the PW2 Chob Singh and then he saw the accused who are four in numbers being present therein and so far as the accused opposite party no.3 Durjan Singh and accused opposite party no.5 being Yadram are concerned, they were in possession of cuddle and so far the rest of the accused opposite party No.2 and 4 are concerned, they were armed with country-made pistol.
21. According to PW1 the accused herein fired two times and administered threat that they will chase away PW1 and on account of resorting to gunshot fire the deceased fell down and from there she was taken to Malikhan hospital and referred to Delhi and he also accompanied the deceased till Aligarh from where he returned back and after 2 to 3 days he was apprised that the deceased died.
22. As PW2 Sri Chob Singh son of Devi Ram presented himself and according to him the incident took place in the intervening night of 25/26.6.2004 around 11-12 in the night when he was in his house along with one Sri Munna Lal and Kamal Singh and one Smt. Tara Devi was lying down in a separate Varanda and at that point of time the deceased had gone to answer nature's call and he was sleeping but he heard screams of the deceased when gunshot firing was resorted to which were 2-3 in number. However, he is not aware and who made firing and when he proceeded towards the place of occurrence, he found deceased lying down.
23. PW3 being Netrapal son of Dharmjeet and the real son of the deceased appeared as PW3 and according to him the incident took place around 10-12 in the intervening night of 25/26.6.2004 when his mother had gone to answer nature's call. According to PW3 litigation is going on regarding piece of land between him and the accused Lekhraj in which 26.6.2004 of the next date fixed and the accused herein had murdered her mother and Lekhraj along with Chandrapal resorted to gunshot fire and the other two accused were also present but he is not aware as to which weapon they were holding in their hand and the injuries through gunshot firing was witnessed by Hoti Lal, Kamal Singh, Munna Lal and Amar Singh. He has further deposed his mother had been taken to hospital in Aligarh then Delhi wherein she died.
24. PW4 Munna Lal also stepped into witness box and according to him on the fateful day at 10-11 hours he had gone to Hoti Lal, Kamal Singh's house and and he listened to the noise of gunshot firing from the agricultural field owned by Om Prakash. It was a moonlight night and Lekhraj, Chandrapal had administered gunshot firing and Durjan and Yadram were also there, they had in their hand country-made pistol (Chandrapal and Lekhraj).
25. PW5 Panna Lal also came in the deposition box and he proved the FIR as he is the scriber of the FIR.
26. PW6 Amar Singh in his examination-in-chief had deposed that the deceased had gone to answer nature's call and 12 in the night and she was subjected to gunshot firing and injury was sustained by the deceased herein and she was taken to the hospital at Aligarh from where she was referred to Delhi and wherein she died on 27.6.2004.
27. PW7 Inspector Man Singh conducted the investigation took the statement of the witnesses and he proved the site plan and constable Suresh Mishra proved the written Chik FIR.
28. PW8 S.I. Iqbal Ahmad Delhi Police has come up with a stand that he had gone to the to Lok Nayak Jai Prakash hospital whereat the body was taken for postmortem. He is also a formal witness.
29. PW9 SI Netrapal Singh is also a Investigating Officer who conducted investigation being a successor of the earlier investigating officer and according to him he took statements and also made physical presence while going to the place whereof the site plan was also prepared.
30. PW10 Dr. V.K. Gupta had proved the medico legal injury report.
31. Undisputedly the entire prosecution case hinges upon being alleged commission of crime in the intervening night of 25/26.4.2004 wherein accused have been marked to have committed offence while resorting to gunshot fire.
32. As per first information report so lodged by the first informant the time of the occurrence has been shown to be 22 hours i.e. 10.00 p.m. in the intervening night on 25/26.6.2004. According to PW1 being Sri Hoti Lal the time of the incident was 10.00 p.m. in the intervening night on 25/26/6.2004 when he had gone to purchase certain articles being local cigarette (Bidi). According to him at that point of time he noticed the gunshot firing. However, in his cross-examination PW1 Hoti Lal come up with a stand that the incident took place 10-11 in the intervening night dated 25/26.6.2004.
33. So far as PW3 being Netrapal, who happens to be son of the deceased in his examination-in-chief has come up with a stand that the time of the occurrence is 10-12 in the intervening night of 25/26.6.2004. PW3 has further deposed that he had given his statement at Lok Nayak Jai Prakash Hospital before the doctor whereat he had given the time of the incident 10-12 hours in the intervening night of 25/26.6.2004 however, he is not aware as to why the doctor has written the time of the occurrence being 12.00 p.m. in the night.
34. PW4 being Munna Lal son of Devi Ram, who is also one of the close relative of the deceased has stated that the time of the occurrence was 10-11 in the intervening night of 25/26.6.2004. Further, PW4 in internal page 2 of his cross-examination dated 24.1.2014 has further come up with a stand that the deceased had gone to answers nature's call at 11.00 p.m. in the intervening night of 25/26.6.2004.
35. Net analyses of the deposition of the prosecution witnesses itself show that there are material contradictions in the statement of prosecution witness with respect to the time of the occurrence as in the first information report the time of the occurrence has been shown 10 p.m. in the intervening night of 25/26.6.2004 whereas the prosecution witnesses have given different time in this regard.
36. Moreso, it is come on record that so far as the PW1 Hoti Lal is concerned he claims himself to be a eyewitness of the entire incident. As according to him at 10 in the night he had gone to purchase certain articles and the shop in the subject village closes at between 9-10 in the night. According to PW1 Hoti Lal near the house of Amar Singh and the accused Lekhraj in between there is a wall and from the place of occurrence at about 40 meters there exist shop of Gyan Singh whereat he had gone to purchase local cigarette (Bidi) and he noticed gunshot firing. In the cross-examination PW1 has come up with a stand that he is not aware as to who had resorted to gunshot firing. However, subsequently, they were two round of gunshot firing. According to PW1 he was standing in the shop but firing was done by the accused Chandra Pal and Lekhraj which he was witnessing from shop in question.
37. It is has further come on record that between the place of occurrence and the shop of Gyan Singh, there is a room constructed therein from where the place of occurrence is not visible.
38. In cross-examination a further statement has been made by the PW1 that in the shop of Gyan Singh a Chakki is also established and the boundary is 10 feet high and between the Chakki of Gyan Singn and the shop in question house belong to PW2 Chob Singh is there and in front of the shop Kanchan and Om Prakash have built their houses and the road towards Kanchan is 15 feet long. However, there is no wall but a Chabootra is there and the house also which is 10-12 feet high.
39. Further In cross-examination PW1 Hoti Lal has stated that when he was going to purchase local cigarette then he saw Satya Prakash the son of Gyan Singh and Gyan Singh and in between on road he met Ramchandra, Parsadi and Itwari. However, he did not have any conversation with them. Even further in the cross-examination PW1 has come up with a stand that he had not seen the deceased going for answering nature's call and he is not aware as to who is the husband of Goma Devi. PW1 has further stated that when he went to the place of occurrence, he found the deceased lying down and the accused was standing but they were not resorting to gunshot firing. He has further deposed that he did not see the accused resorting to first gunshot fire however he could see the second and the third gunshot fire being administered by the accused that too from 60-70 feet.
40. The learned trial court has disbelieved the deposition of PW1 Hoti Lal while observing that on one hand in cross-examination dated 28.7.2009 the PW1 has come up with a stand that he did not see the accused firing upon the deceased but on the other hand a contradictory statement is being sought to be made that though he had not seen the first gunshot fire but so far as second and third gunshot fire is concerned he had seen. The trial court has further analysed the said aspect of the matter while recording a categorical finding that as per the statement of the PW1 their happens to be a wall and constructions so raised from where the PW1 while standing in the shop in question could not see anybody standing or committing some act in the agricultural field particularly 10 in the night itself as the boundary wall is 10 feet high.
41. Contradictions in the statement of PW1 also assume significance particularly in the fact that the PW1 as per his own admission has stated that he had not seen the deceased going to answer nature's call and once according to his statement if taken into face value, he could see the deceased lying down from 20 meters away and the accused standing there and not firing. The Trial Court has further observed that as per the statement of PW1 the second and the third firing was witnessed by him from 60-70 feet.
42. The court below has analysed the deposition of PW1 Hotilal while observing that it is highly improbable that in case the story so built up by the PW1 if taken its face value then it will result to inconceivable situation as a culprit who has resorted the gunshot firing will remain at a place and wait for the villagers to come and to catch them.
43. More so as per the statement of PW1 Hoti Lal, he met Gyan Singh, his son Satya Prakash, Ramchandra, Parsadi and Itwari, however none of these whiteness came to give their statement and further as per the statement of PW1 he did not narrate the said incident to any of them.
44. Similarly, so far as PW2 Chob Singh is concerned, he in his examination-in-chief has come up with a stand that he is not aware as to who had administered firing and when he went to the place of occurrence huge rush of villagers were there, as according to him he was sleeping in his house and he became hostile witness while not supporting the prosecution case.
45. PW3 Netrapal being the son of the deceased and the brother of the first informant has supported the prosecution theory as according to him he had gone to Lok Nayak Jai Prakash Hospital wherein he had given statement that too before a doctor. He has further admitted in his statement that he has not named Amar Singh, Munna Lal and others who had witnesses the gunshot firing by the accused. He has further deposed in his cross-examination that his brother Kamal Singh in the FIR has not narrated the fact that Munna Lal, Chob Singh, Amar Singh and Tara Devi were not present at the time of the commission of the crime. He has further stated that the first information report has not been lodged by the husband of the deceased Amar Singh and according to him no litigation is going on between him and accused Lekhraj and no statement has been taken by police from him.
46. Thus, PW3 who happens to be the real son of the deceased has not proved the prosecution story so as to put a nail of conviction against the accused.
47. PW4 being Munna Lal has deposed that Chob Singh is his real brother and Amar Singh happens to be the husband of the deceased, who is also a real brother of him. PW4 in his cross-examination has further deposed that from the shop in question whereat PW1 Hoti Lal was standing the visibility is zero in so far as the place of occurrence is concerned as there happens to be a house in between.
48. Though PW4 Munna Lal had deposed that Hoti Lal PW1, Chob Singh PW2 and Kamal Singh since deceased (first informant) had seen the deceased going to the field for answering the nature's call, however PW1 Hoti Lal in his cross-examination has come up with a stand that he is not seen the deceased going to the field for answering nature's call. PW4 in his cross-examination had further stated that he was lying down in the cot on the fateful day and was sleeping and he heard gunshot firing and thereafter he proceeded towards the place of the incident and he did not call PW2 Chob Singh, PW3 Netrapal and Amar Singh. According to him when he rushed to the place of occurrence and the accused ran away and he witnessed the same. He has further deposed that the place where he was standing the visibility of the place of occurrence was not clear.
49. So far as PW6 Amar Singh is concerned though he has come up with a stand that the deceased had gone to answers nature's call at 12 but he also does not support the prosecution theory.
50. Meticulous analyses of the statement of the prosecution witnesses puts a serious cloud over the prosecution case particularly in view of the fact that not only there is material contradictions in the statements vis-a-vis the time of occurrence but also the fact that the place from where PW1 Hoti Lal is stating to have witnessed the commission of the crime from his own eyes is highly improbable as the intervening night 25/26.6.2004 was a moonlight night where the visibility is quiet poor i.e. 10-10-30. Meaning thereby the visibility was opaque and nobody from 60-70 feet can see or identify a person standing that too in a agricultural field.
51. Nonetheless the case if it is taken into its face value though disputed is the case referable to circumstantial evidence. In order to link the accused with respect to the commission of the crime the chain of the events should be in such a position so as to pointedly mark that the accused herein had committed crime and none else beyond doubt and nobody else.
52. Here in the present case, this Court finds that there are not only material contradictions as discussed herein above but also the fact that in case the deceased had gone to answer nature's call then a vessel (Lota) ought to have been recovered from the place of occurrence particularly when the prosecution witnesses are coming up with a stand that the accused were standing near the injured lady (deceased) when PW1 Hoti Lal went there. Additional fact also need to be noticed at this stage is that none of the villagers came in support of the prosecution theory particularly when as per statement PW1 Hoti Lal, Gyan Singh, Satya Prakash, Ram Chandra, Parsadi, Itwari were also present after hearing the noise of gunshot firing proceeded there at. More so in the first information also no names of the witnesses who had seen the commission of the crime finds place.
53. Notable the Hon'ble Apex Court in the case of Chandrapal Vs. State of Chhattisgarh AIR 2022 SC 2542 in paragraph 14, 15, 16, 17 have observed as under:-
"14. In this regard it would be also relevant to regurgitate the law laid down by this court with regard to the theory of "Last seen together".
15. In case of Bodhraj and Ors. v. State of Jammu and Kashmirs, this court held in para 31 that:
"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible...."
16. In Jaswant Gir v. State of Punjab', this court held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of "Last seen together", even if version of the prosecution witness in this regard is believed.
17. In Arjun Marik and Ors. v. State of Bihar ¹0, It was observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded."
54. Considering the case in totality this Court finds that the chain to link the accused with respect commission of crime itself is thoroughly missing and the evidences so sought to be pressed into service which obviously includes testimony of the prosecution witnesses and the documents so adduced therein are itself weak. This Court further finds its inability to take a different view from the view so taken by the trial court as obviously while deciding the appeal under Section 372 of the Cr.P.C. from an order of acquittal once the view taken by the learned trial court is possible and plausible view then it will be highly unjustifiable to take another view. Nonetheless presumption of double innocence is already attached to the accused herein and thus this Court finds the order of acquittal is liable to be affirmed.
55. In view of foregoing discussion, the present appeal is liable to be dismissed and is accordingly dismissed.
55. The records be sent back to the court-below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 21.7.2022
piyush