Allahabad High Court
State Thru. Senior D.S.C/ R.P.F vs Shivakant Bajpai on 13 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2024:AHC:131259 Court No. - 86 Case :- GOVERNMENT APPEAL No. - 387 of 2024 Appellant :- State Throu. Senior D.S.C/ R.P.F Respondent :- Shivakant Bajpai Counsel for Appellant :- Alok Ranjan Mishra Counsel for Respondent :- Manjul Mishra Hon'ble Nalin Kumar Srivastava,J.
Ref : Criminal Misc. Application (Leave to Appeal)
1. The present government appeal under Section 378 (3) CrPC has been filed against the impugned judgement and order dated 25.4.2023 passed by the Additional Chief Judicial Magistrate, Northern Railway, Bareilly in Criminal Case No. 592 of 2013, arising out of Case Crime No.101 of 2013 under Sections 154 and 174 of the Railways Act, 1989, Police Station R.P.F. Post Shahjahanpur, Moradabad Division, Northern Railway whereby accused-respondent was acquitted.
2. Heard Shri Alok Ranjan Mishra, learned Standing Counsel appearing for the Government of India at length. None is present for the accused-respondent.
3. The prosecution story, in nutshell, is that boom lock post of the Railway Department was broken by a Truck bearing Registration No. UP26-9171 being driven by its driver in a rash and negligent manner and the driver of the said Truck fled away from the place of occurrence but the Truck was taken into possession by the police. F.I.R. as Case Crime No.101 of 2013 under Sections 154 and 174 of the Railways Act, 1989 was lodged. After investigation, the police report was submitted to the court for trial. Copies of necessary papers were given to the accused and his statement under Section 251 CrPC was recorded wherein he denied the incident. Trial started and during trial, the prosecution produced as many as four prosecution witnesses. In addition to this, the prosecution has also produced number of documents, which were duly exhibited and proved during trial. Accused respondent in his statement recorded under Section 313 CrPC denied the factum of incident and the truthfulness of prosecution evidence. The learned Magistrate after thrashing the evidence and critically analysing them has come to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt and, therefore, the accused Shiva Kant Bajpayee was set at liberty and was acquitted.
4. Aggrieved with the said judgement and order, the instant Government Appeal under Section 378 (3) Cr.P.C. on behalf of the State through D.S.C./ R.P.F. Moradabad Division / appellant has been filed.
5. Learned Counsel appearing for the appellant State submitted that in this case the appellant had confessed his guilt before the officer of R.P.F. conducting an enquiry and the said confession is not hit by the provisions of Section 25 Evidence Act, as the officer of R.P.F. does not fall into the category of 'Investigating Officer' and his status is not the same as it is in a case of Police Officer investigating the case and hence his confession made before the officer of the R.P.F. is admissible in evidence and his confessional statement in this case cannot be excluded from the category of 'evidence'. It is further submitted that since the trial court totally ignored the confessional statement made by the accused himself, which was fully admissible in evidence, the findings of acquittal of the accused respondent is illegal and not sustainable. It is also submitted that on the basis of other oral and documentary evidence on record the prosecution has established and proved its case beyond reasonable doubt but the trial court failed to appreciate the evidence in its true perspective and acquitted the accused respondent by wrong appreciation of the evidence available on record. Findings recorded by the trial court in the impugned judgment and order are illegal and perverse warranting interference by this Court.
6. In support of his submissions, learned counsel for the appellant - State placed reliance upon a decision of Hon'ble Supreme Court in Balakishan A. Devidayal vs. State of Maharashtra, (1980) 4 SCC 600 and a decision of this Court in State vs. Shivendra Pratap Singh, 1979 SCC Online All 377.
7. Since it is a an 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 and approach to be adopted while dealing with an appeal against acquittal.
8. In Jafarudheen and others vs. State of Kerala, 2022 SCC Online SC 495, reiterating the principle on the subject the Hon'ble Apex Court reminded to the Courts as extracted below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
9. In Mohan alias Srinivas alias Seena alias Tailor Seena vs. State of Karnataka, (2022) 12 SCC 619, the Hon'ble Apex Court held as hereunder:
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
10. In Atley v. State of U.P., 1955 Cri. LJ 1653, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same.
11. The Hon'ble Apex Court in the case of Bannareddy v. State of Karnataka, (2018) 5 SCC 790, has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and held as under :
"26. 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".
12. In Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, the Hon'ble Apex Court observed vis-a-vis the powers of an appellate court while dealing with a judgment of acquittal and held like this :
"7. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
13. In the light of the submissions made by learned counsel for the appellant / State, I have carefully gone through the evidence available on record, analysis and appreciation thereof and conclusion arrived at by the trial court in the impugned judgment and order dated 25.4.2023.
14. It is a case where boom lock post of the Railway Department was hit by a Truck being driven by its driver in a rash and negligent manner and the driver of the said Truck fled away from the place of occurrence and subsequently the registered owner of the said Truck Vijay Kumar Singh brought him in person to the outpost Sitapur, where he is said to have admitted his guilt.
15. PW-1-Mahesh Prasad - Gateman/ kantewala is the eye witness of this case but this witness has admitted before the trial court that the driver of the ruck fled away from the spot and he cannot identify him even if he comes before him. He has fairly conceded that during investigation no identification parade of the accused was conducted by the Investigating Officer and even today he is unable to identify the truck driver.
16. PW-2 - S.K. Vidhyarthi / S.S.E. Signal is the Railway Officer, who made a joint inspection of the place of occurrence alongwith R.P.F. police officials. He is a formal witness, who proves memo of recovery of the truck Ext. ka-1, inspection report Ext. ka-3, site plan Ext. ka-4 but at the same time on the basis of documentary evidence he also establishes the factum of collusion of the Truck with the boom lock post.
17. PW-3 S.I. Akhilesh Kumar Yadav working in R.P.F. though has made some statements regarding the facts of this case but as a matter of fact he is not an eye witness of the incident and is a formal witness and his evidence on the facts of the incident is an outcome what he received from the gate-man. F.I.R. of this case was lodged against unknown driver. This witness himself has enquired into the matter. He proves the registration G.D. Ext. ka-5 and corroborates the evidence of PW-2 by identifying his own signatures on Ext. ka-1, Ext. ka-3 and Ext. ka-4. He also proves the fact that one person alongwith the owner of the offending vehicle Vijay Kumar Singh came to the outpost on 28.2.2013 and confessed his quilt as to he himself was driving the offending vehicle at the time when it collided with the boom lock post. He further states that subsequently, the accused was arrested and memo of arrest was prepared which is Ext. ka-6. This witness further proves copy of G.D. as Ext. ka-7, the confessional statement of the offending driver recorded in the presence of owner of the vehicle Vijay Kumar Singh as Ext. ka-8. The statement of Vijay Kumar Singh has also been proved by this witness as Ext. ka-9. After technical inspection, the offending vehicle was given in the supurdgi of the owner thereof and the memo thereof has been proved as Ext. ka-10 by this witness. After completing the investigation, a complaint was submitted to the Court which has also been proved by him as Ext. ka-11. Further he has fairly conceded that after taking the accused into custody, no identification of the accused was performed by the gate man Mahesh Prasad.
18. PW-4 - Constable Vipin Kumar Sharma is also said to be a witness of fact but a perusal of his deposition shows that he is not an eye witness of the incident but he came to the spot after the incident took place. He has identified his signatures over Ext.ka-1 and Ext. ka-6.
19. The genuineness of technical inspection report in respect of the offending vehicle has been admitted by the learned counsel for defence, which is Ext. ka-12.
20. Considering the oral and documentary evidence on record adduced by the prosecution, the trial court opined that out of the four witnesses examined by the prosecution, PW-1 is the only witness who had seen the occurrence and rest of the witnesses are formal witnesses. Discussing the averments made by PW-1 in his evidence, the trial court has quoted the relevant statements made by him wherein he states that during investigation no identification parade of the accused was conducted by the Investigating Officer and the driver, who fled away after the incident, is not identifiable by him even today.
21. In these circumstances even if the documentary evidence produced by the prosecution is taken to be genuine, the Court cannot shut its eyes to the fact that in the statement under Section 313 CrPC a total denial to the incident is found on the part of the accused respondent. He has averred that he never collided with the railway gate by driving any Truck nor committed any offence, as alleged. The trial court in these circumstances has opined that the statements of the accused respondent and the owner of the vehicle, allegedly recorded by the R.P.F. official, which are produced in evidence as Ext. ka-8 and Ext. ka-9 respectively require corroboration by some other evidence. Even if the submissions made by the learned counsel for the appellant is taken to be true that a confessional statement was recorded by the driver before the R.P.F. official which is admissible in evidence, the question arises as to whether the accused is liable to be convicted only on the basis of his alleged confession made before the R.P.F. official or any further special sparking test was needed to prove the guilt of the accused. To take a statement of an accused as an admissible piece of evidence is one thing but whether this evidence has been corroborated by some other cogent piece of evidence before being acted upon is a quite different thing, particularly in a situation where in his statement under Section 313 CrPC rendered before the Court of law, the accused claims his innocence and states the same in his statement under Section 251 CrPC as well and thereby categorically denies as to he, in any way, was the author of the crime. The prosecution was under obligation to prove by any cogent corroborative piece of evidence that the accused respondent had confessed his guilt before the R.P.F. official.
22. So far as the decisions relied upon by the learned State Counsel appearing for the appellant-State are concerned, in Balakishan A. Devidayal case (supra), it has been held by the Hon'ble Apex Court as under :
"58...............in the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8 (1) of, the 1966 Act has not. been invested will all the powers of an officer-in-charge of a police station making an Investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which his been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Jyoti Savant's case, which has been consistently adopted in the subsequent, decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer, within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8 (1) of the 1966 Act, cannot be excluded from evidence under the said section.
23. In State vs. Shivendra Pratap Singh case (supra) this Court held as under :
"4..................The main point to be decided in this appeal therefore, is whether the confessional statement Ex Ka-17 is hit under Section 162 Cr.P.C. The learned Assistant Government Advocate has placed reliance on the case of State v Durga Prasad, AIR 1974 SC 2136 in which it was held that the enquiry under Sec. 8 (i) of the Railway Property (Unlawful Possession) Act, 1966 by an officer of the Railway Protection Force cannot be deemed to be an investigation for the purposes of Sec. 162 Cr.P.C. In that case the officer of the R. P. F. making enquiry had obtained the signatures of the witnesses on their statements and the argument was that he had committed flagrant violation of Sec. 162 Cr.P.C. and the entire trial was vitiated because those statements had been brought on the record and had been put to the witnesses in the examination-in-chief. Hon'ble Supreme Court held, overruling the decision of the High Court that the trial was not vitiated even though such- statements signed by the witnesses had been brought on the record. The order of acquittal was set aside and the order of conviction recorded by the Sessions Judge was restored. This decision is dated 28-3-74 while the learned Magistrate had decided the present case on 11-7-73 when this decision was not available. In that judgment their Lordships referred to the earlier decision in the case of Radhu Joti Savant v. State, AIR 1966 SC 1746. It was a case under the Central Excise and Customs Act. The provisions of Section 21 (i) (ii) of that Act and the provisions of Sec. 8 (i) and (ii) of the Railway Property (Unlawful Possession) Act were held to be identical in material respects. In the earlier decision it was held that the confession made by an accused before the Central Excise Officer was not hit under Section 25 of the Indian Evidence Act as it would not be deemed to have been recorded under Section 162 CrPC. By referring to the earlier decision of 1966 their Lordships made it abundantly clear that the same principles would apply to a confessional statement made under R. P. (U. P.) Act even though they were not actually considering confessional statement. They were only considering the statements of witnesses recorded by the enquiry officer after obtaining their signatures. In the light of this decision of the Hon. Supreme Court there can be no doubt that the view taken by the learned Magistrate on the point of Section 162 CrPC is erroneous ami the confessional statement (paper no. A-6) Ex. 17 cannot be hit by Sec. 162 CrPC."
24. The confession allegedly made by the accused respondent falls within the category of 'extra judicial confession' and the law on the subject has been clarified by the Hon'ble Apex Court in a catena of decisions and the principle that emerges out as essence from the various decisions is that the extra judicial confession can be accepted and can be made the basis of conviction if it passes the test of credibility and such confession should inspire confidence and the Court must find out whether there are other cogent circumstances on record to corroborate it.
25. In Subramanya vs. State of Karnataka, (2023) 11 Supreme Court Cases 255, the Hon'ble Apex Court explaining the law on the subject held as under :
"54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction."
"55. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:-
"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
26. This Court cannot lose sight of the fact that in this case the alleged extra judicial confession made by the accused respondent is surrounded by suspicious circumstances because the owner of the vehicle, who is said to have taken the accused respondent with him to disclose the fact that he was the person who was driving the offending vehicle at the time of the incident, was not chosen to be produced as a witness by the prosecution and hence from the very inception the alleged confession made by the accused respondent falls under the shadow of suspicion. In these circumstances it appears that only to show the good work, the R.P.F. officials falsely roped the accused respondent in this case. Hence, the alleged extra judicial confession, which is not supported by any cogent independent evidence, loses its importance and its credibility becomes doubtful in the case like this.
27. The observation made by the Hon'ble Supreme Court in Pakkirisamy vs. State of T.N. (1997) 8 SCC 158 is relevant in the circumstances of this case, which is as under :
"8........ It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession."
28. The evidence of R.P.F. officials as prosecution witnesses to prove the extra judicial confession allegedly made by the accused / respondent cannot be taken as a reliable piece of evidence as none of the witnesses has seen him committing the crime. When the accused himself denies of any of the confessional statements made before R.P.F. officials by him and the owner of the vehicle, who is said to have taken the accused with him to the R.P.F Officers, has not come forward to depose the aforesaid fact before the trial court, the accused could not be convicted on the basis of the testimony of highly interested witnesses and in this way the prosecution lacks an independent reliable corroboration of the so-called extra judicial confession made by the accused.
29. This Court also takes cognizance of this fact that the prosecution evidence was not explicitly clear that the so-called extra judicial confession made by the accused respondent was voluntarily and true and made in a fit state of mind and in the event of such omission made on the part of the prosecution to prove the aforesaid factum of confession by some corroborative reliable piece of evidence, the extra judicial confession cannot be relied upon by this Court. In fact the confession made by an accused requires to be proved like any other fact. It is a weak type of evidence and although there is no absolute rule that it can never be the basis of a conviction but ordinarily such confession should be corroborated by some other material evidence to enable the Court to satisfy itself in regard to voluntariness and truthfulness of the confession and the corroborative evidence thereof.
30. Moreover, this fact cannot be lost sight of that Vijay Kumar Singh, the owner of the vehicle, was not produced by the prosecution as a witness to prove his statement which was given by him before the R.P.F. officials. For want of such substantial evidence, the trial court correctly found that the accused respondent is entitled to get benefit of doubt. The trial court has elaborately discussed the oral and documentary evidence on record and reached the right conclusion and committed no mistake in recording the acquittal of the accused respondent.
31. The learned trial Court has given logical and plausible findings in the impugned judgement and has rightly concluded that the prosecution has miserably failed to prove its case beyond reasonable doubt. The judgment and order of the trial court under judicious scrutiny is just and proper and carries no perversity therein, hence it does not warrant any interference by this Court. The reasoning adopted by the learned Trial Judge is based upon proper application of judicial mind. No illegality or infirmity is found in the impugned judgment and order and it needs no interference by this Court in exercise of its power under Section 378 CrPC.
32. Thus, the application moved by the appellant - State to grant leave to appeal for the reasons discussed here-in-above is not liable to be allowed and the said prayer is refused.
Re : Government Appeal
1. Since the application for grant of leave to appeal has been disallowed, the government appeal is also not liable to be admitted and same is dismissed at this stage.
2. This Court is thankful to learned Advocate and Mr. Akash Verma, Research Associate of this Court for ably assisting the Court.
Order Date :- 13.8.2024 safi (Nalin Kumar Srivastava, J.)