Allahabad High Court
State Of U.P. vs Netrapal And 2 Others on 9 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1594
Bench: Manoj Misra, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 50 Case :- GOVERNMENT APPEAL No. - 127 of 2020 Appellant :- State of U.P. Respondent :- Netrapal And 2 Others Counsel for Appellant :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Sri Ratan Singh, the learned Additional Government Advocate for the State on application for leave to appeal.
2. Vide judgement and order dated 12.12.2019 passed by Additional Sessions Judge, Court No.8, Agra in Sessions Trial No.875 of 2017 (State Vs. Netrapal and others), Case Crime No.207 of 2017, Police Station Iradatnagar, District Agra, the learned trial court has acquitted respondent nos. 1 to 3 namely Netrapal, Bhagirath and Smt. Rautani for the offence under Sections 302/34 and 201 IPC.
3. The impugned judgement has been challenged on the ground that the respondents committed murder of the deceased and to cause the evidence to disappear, the dead body was thrown on the railway track. The prosecution established the charge against the respondents beyond doubt and, therefore, the impugned judgement of acquittal is illegal, unjustified and bad in the eyes of law. The learned trial court did not properly appreciate the evidence led by prosecution and decided the case on the basis of conjecture and surmises. The learned trial court committed gross illegality in acquitting the respondents. Therefore, the impugned judgement is not sustainable under law and is liable to be set aside and, therefore, leave for appeal against acquittal be granted.
4. We have considered the argument of the learned AGA and perused the impugned judgement.
5. The Supreme Court in a series of decisions has repeatedly laid down that as the first appellate court, the High Court can re-appreciate the entire evidence, but would interfere only when there is absolute assurance of the guilt on the basis of the evidence on record and not merely because a different view was possible. In State of MP v Ramesh, (2011) 4 SCC 786, the Court, while considering the scope of interference in appeal against acquittal held:
"We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused.
The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
6. Further, in Minal Das v State of Tripura, (2011) 9 SCC 479, while reiterating the very same position, it was held:
"There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgement of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."
7. In Rohtash v State of Haryana, (2012) 6 SCC 589, the Court held:
"The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgement in appeal is found to be perverse, the appellate court can interfere with the order of the 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 innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
8. In Murugesan v State through Inspector of Police, 2012 (10) SCC 383, the Court elaborately considered the broad principles of law governing the power of the High Court under section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. Referring to Chandrappa v State of Karnataka, (2007) 4 SCC 415, held as under:
"(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 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." (emphasis supplied)
9. The above principle of law has been reiterated and affirmed further in Mookkiah v State of Tamilnadu, AIR 2013 SC 321 and in Ramesh v State of Haryana, AIR 2016 SC 5554, where it has been held that the scope of interference in an appeal against acquittal is narrower, than an appeal against conviction because presumption of innocence gets further fortified by an order of acquittal and the appellate court need not substitute its finding unless there is substantial and compelling reasons to differ with the finding of the trial court, or where the finding of the trial court is perverse or against the settled position of law.
10. On the basis of above principles, we have analysed the findings in the impugned judgement. It appears that a report was lodged on 20.8.2017 to the police that on 31.7.2017 at 5:30 in the morning the dead body of the deceased Gauri Shanker, who is the brother of the informant and was aged about 40 years was found lying on railway track with head and mouth bleeding and he and the family members reached there and they found that Gauri Shanker was hit by a train and died. The family members took away the dead body from the railway track and his funeral took place under the bona fide impression that he died accidentally. Subsequently, it came to the knowledge of the informant that on 30.7.2017 at 8:30 in the night Smt. Rautani wife of Netrapal had come to call Gauri Shanker who went with her. Both were seen together at 9:30 in the night going towards railway track by Hotilal and Ramveer Singh. On the way, they saw Netrapal and Bhagirath and Hotilal asked them where they were going, to which they did not reply and proceeded ahead. Gauri Shanker had close relationship with Rautani, which was known to everyone and it also came in the knowledge of her husband and family members, therefore, on the basis of suspicion the FIR was lodged against the accused persons for the commission of murder of Gauri Shanker by them.
11. The record reflects that FIR was lodged after expiry of 20 days of discovery of the body. The learned trial court has found that no cogent and convincing explanation was given from the side of prosecution for the delay in lodging the FIR and, therefore, the learned trial court rightly concluded that the FIR was lodged after deliberation and consultation. If the death was suspicious or it was suspected that the accused persons killed the deceased, the FIR could have been lodged much earlier by the wife of the deceased.
12. The prosecution has examined five fact witnesses in support of the prosecution version. PW-1 Kaluwa is the informant, who has proved the written report. He did not see the accused persons with the deceased and his version is based on what was told to him by Hotilal and Ramveer. PW-2 Hotilal and PW-3 Ramveer have also been examined, who have stated that they saw the deceased going with Rautani towards railway track and behind them, Netrapal and Bhagirath were also going. PW-4 Ravi is the son of the deceased, who has stated that on 30.7.2017 Rautani came to his house to call his father Gauri Shanker and both went together and his father did not come back. PW-6 Smt. Shanti is the wife of the deceased and she has told about the illicit relationship between Rautani and her husband. She has also stated that she objected to this relationship and quarrel took place between them several times. Their relationship was talk of the town and everybody in the village knew about it. None of these fact witnesses have been found reliable and trustworthy. All these witnesses are family members and the learned trial court has rightly noted infirmity and discrepancy in their statements.
13. It appears from the perusal of the judgement that the case is based on circumstantial evidence of last seen together and the maximum evidence what the prosecution has produced is that on the preceding evening, the deceased was seen going with the accused persons. The dead body of the deceased was allegedly found in the morning of 31.7.2017 and allegedly the deceased was seen with the accused persons going together on 30.7.2017 at 9:00 PM. No evidence has been given what happened during this period. It also appears that it has not been reported to the concerned police or to the railway police that the dead body of the deceased has been found on the railway track. Because of funeral of the dead body, inquest report was not prepared, nor post-mortem was conducted, which was so necessary for the determination of the cause of death and to ascertain whether death was homicidal or accidental. Meaning thereby, because of the own lapse committed by the informant side, some very important evidence was lost and could not be placed before the court during trial. The funeral ashes collected by the police was sent to Forensic Science Laboratory but after chemical examination nothing has come out which could support the prosecution case.
14. PW-7 I.O. Salim Khan has stated that a report was given on 31.7.2017 at 6:50 AM by Darab Singh in which it was mentioned that when he was going to attend nature's call he saw Gauri Shanker was hit by train while crossing railway line and died on spot. The funeral took place in the presence of family members and villagers and it was mentioned in the information that they were not keen for any legal action. The learned trial court has mentioned that Darab Singh was a very important witness but he was not examined by the prosecution and thereby prosecution tried to conceal the real facts and withhold necessary evidence. It is also important to mention that this Darab Singh is none other but the father of the informant and it appears strange that despite being father and son, there is so much difference in their versions. There is no mention of the report of Darab Singh in the FIR. Hotilal and Ramveer also went to Punjab on the same day. No witness of the village has been examined who could state about the illicit relationship between Rautani and deceased. Therefore, the learned trial court found that there was no direct evidence and the circumstances which were relied upon by the prosecution were neither proved nor were conclusive enough to lead to the definite conclusion that the accused persons committed murder of the deceased.
15. In view of the above discussion, we find that the conclusion arrived at by the learned trial court is based on a close scrutiny of the evidence on record. No other view is possible even if the leave to appeal is allowed and appeal is heard on merits. There is no perversity or illegality in the impugned judgement requiring interference of this Court.
16. In such situation, we do not find any force in the application for leave to appeal and the same is liable to be rejected.
17. The application for leave to appeal is hereby rejected. Accordingly, the appeal against acquittal is also dismissed.
Order Date :- 9.6.2020 Mini