Allahabad High Court
Baijnath vs State Of U.P. & 2 Others on 14 February, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- CRIMINAL APPEAL No. - 513 of 2019 Appellant :- Baijnath Respondent :- State Of U.P. & 2 Others Counsel for Appellant :- Sandeep Singh Counsel for Respondent :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
This criminal appeal under the proviso to section 372 of Criminal Procedure Code has been preferred by Shri Baijnath, who is the father of the deceased-Shatrohan, against the judgment and order dated 03.01.2019 passed by the Additional Sessions Judge Fifth, Bahraich in Criminal Case No.305 of 2012 arising out of Case Crime No.57 of 2003 under section 302/34 of I.P.C. and section 3(1) of U.P. Gangster Act, Police Station-Kotwali Murtiha, District-Bahraich, whereby both the accused persons have been acquitted of all the charges framed against them.
As the record of the trial court is available, this appeal preferred against the judgment of acquittal is being decided at the stage of admission.
The brief facts pertaining to this case are that informant on 20.03.2003 submitted a written application (Ext.d-1) to the Station House Officer, Police Station-Murtiha, District-Bahraich stating therein that his son Shatrohan aged about 17 years had gone to guard his crops on 19.03.2003 at about 4.30 p.m. but he did not return back. He searched him in adjoining areas but could not find him and on 20.03.2003 he started searching his son since morning. When he arrived at the jungle of Madhwapur Tangia, he found the dead body of his son with multiple injuries on his person. On the basis of above-mentioned written application, F.I.R. (Ext.d-3) was registered against unknown persons under sections 302 & 201 of I.P.C. at Case Crime No.57 of 2003 at Police Station-Kotwali Murtiha, District-Bahraich and substance of this information was also entered in the General Diary of the police station concerned (Ext.d-17).
Inquest of the dead body of the deceased-Shatrohan was prepared on 20.03.2003 at about 14.30 hours by the Investigating Officer and after preparing necessary papers for the postmortem i.e. Chalan Laash (Ext.d-8), letter of R.I. (Ext.d-9), letter of C.M.O (Ext.d-10), sample seal (Ext.d-11), Photo Laash (Ext.d-12), he forwarded the dead body for the purposes of postmortem. The Investigating Officer also collected sample of bloodstained and simple soil from the spot and prepared a memo of the same (Ext.d-5) and also prepared the site plan (Ext.d-14).
Postmortem of the dead body of the deceased-Shatrohan was performed by P.W.-8-Dr. R.C. Singh on 21.03.2003 at District Hospital-Bahraich. He found that the deceased was aged about 17 years and noted the following injuries on his person:
i. Incised wound 1.5 cm. X 0.5 cm on the point of nose about 1.57 cm above and the bone of nose was cut beneath injury.
ii. Incised wound 2cm X 0.5cm on the left side near chin and on the left side mandible bone was found cut.
iii. Punctured wound 0.5cm X 2cm on the right side of the nose and the bone beneath the injury was cut.
iv. Multiple abrasion contusion on the right side of the chest in an area of 15cm X 10cm and on further dissection second, third and fourth ribs on the right side were found fractured. Right lung was lacerated and about one litre blood was found in the chest cavity.
v. Abrasion 2cm X 2cm on the right hand about 10cm below the right elbow join.
On internal examination, 50 gram semi digested food was found in the stomach. Fecal matter was found in the large intestine along with gases. Small intestine was empty and the gallbladder was found half full and half empty and death of the deceased was opined to have been caused due to shock and hemorrhage occurred on account of ante-mortem injuries. The postmortem report has been proved by Dr. R.C. Singh, who has been testified as P.W.-8 on behalf of the prosecution.
The Investigating Officer after recording the statement of various witnesses found sufficient evidence and material against the respondents and submitted the charge-sheet (Ext.d-15) against both the accused persons under sections 302 & 201 of IPC and section 3(1) of U.P. Gangster Act.
The case being exclusively triable by the sessions court was committed and charges under sections 302 and 201 of I.P.C. and section 3(1) of U.P. Gangster Act were framed to which the accused persons denied and claimed trial.
The prosecution in order to prove its case before the court below, apart from relying on the documentary evidence, produced eight witnesses in its support.
After closure of the prosecution witnesses, statement of accused persons was recorded under section 313 of Cr.P.C. wherein they claimed to have been falsely implicated. No documentary or oral evidence was produced by the accused persons/respondents in their defence.
The trial court after appreciating the evidence available on record acquitted the accused persons of all the charges and the victim-Baijnath feeling aggrieved by the judgment of acquittal has preferred this appeal under section 372 of Cr.P.C.
Learned counsel appearing for the appellant while pressing his appeal has submitted that the trial court has passed the judgment of acquittal against the evidence available on record and the judgment is based on surmises and conjectures.
Learned counsel for the appellant has further submitted that the trial court has completely ignored the evidence available on record and has given much weightage to minor contradictions appearing in the evidence of prosecution witnesses and thereby the trial court has acted illegally in acquitting the accused persons. It is further submitted that the trial court has not appreciated the evidence available on record keeping in view the settled principles pertaining to appreciation of evidence with regard to the cases based on circumstantial evidence and though the case of the prosecution was proved beyond reasonable doubt before the trial court however, the learned trial court has failed to appreciate the evidence in correct perspective. It has thus been prayed that the appeal of the appellant be admitted and warrants be issued against the respondents and after summoning them, they should be convicted and sentenced accordingly.
Learned Additional Government Advocate, however, submits that there appears to be no illegality in appreciation of evidence by the trial court. However, according to him, it is for this Court to reappreciate the evidence available on record and arrive at a conclusion as to whether any illegality either in appreciation of evidence or in application of law has been committed by the trial court.
Having perused the record of the trial court in the background of the submissions made by the learned counsel appearing for the appellant, we find that the prosecution case, as emerges from the evidence of prosecution witnesses, is that the deceased-Shatrohan was having illicit relationship with the daughters of Parag and Mata Prasad and both of them were having enmity with him and on this score they have committed murder of the deceased.
P.W-1-Baijnath is the witness of fact who lodged the First Information Report. Apart from the facts mentioned in the F.I.R., he has also stated in his evidence that the deceased-Shatrohan was having illicit relationship with the daughters of Parag and Mata Prasad (respondents) and about 3-4 days before the incident Parag came to his house and asked him to instruct Shatrohan not to visit his house.
P.W-2-Ram Naresh is a witness who had claimed that in his presence deceased went to the house of Parag Mausia as his brother was a regular visitor of his house. He also stated the fact that Shatrohan was having illicit relation with the daughters of Parag and Mata Prasad. According to him, he came to know about this fact after the death of Shatrohan.
P.W.-3-Sharda Prasad has stated that at the fateful night after seeing the dance at the house of Mata Prasad and Shiyaram, he went to the shop of Parag for smoking. According to him, Mata Prasad and Parag took the deceased in the jungle and killed him. It is also stated by him that the deceased was having illicit relationship with the daughters of Mata Prasad and Parag. It is also stated by him that in the morning when the dead body of his brother was recovered, the accused persons pressurized them to make a compromise.
The statement of P.W.-4-Smt. Phoolwati is not relevant as she had not seen the occurrence nor her evidence is relevant as she has only stated about departure of deceased for the house of Parag.
P.W.-5-Ramesh Kumar has only stated that he had seen the deceased on the eve of Holi dance programme which was held at Shiyaram's house and thereafter Shatrohan had returned to his home and he could only see his dead body in the morning.
Having perused the evidence of the prosecution available on record and also the judgment of the trial court, it is revealed that the trial court has acquitted both respondents on following grounds:
(i) The prosecution witnesses have not seen the deceased-Shatrohan with the accused persons.
(ii) No prosecution witness has claimed to have witnessed the murder of the deceased being committed by the accused persons.
(iii) Motive, which is significant in the cases based on circumstantial evidence, has not been proved by the prosecution.
(iv) The prosecution has failed to prove its case beyond doubt and the prosecution witnesses are only having an apprehension and doubt which could not take the place of proof.
(v) No chain of circumstance is made out from the evidence of the prosecution against the accused persons.
(vi) In the postmortem report puncture wound has also been found on the person of the deceased but no such weapon has been recovered from any accused persons and in totality of the circumstances, it is borne out from the evidence available on record that the murder has not been committed by the accused persons.
We have very carefully scanned the evidence available on record and have found that no prosecution witness has actually seen the deceased either going in the house of Parag or Mata Prasad and also there is no reliable evidence that the deceased was ''last seen' with the accused persons. It is also evident from the evidence available on record that there is no close proximity either between the time or the place where the dead body has been found. It is also significant that the motive of deceased having illicit relation with the daughters of Mata Prasad and Parag has also not been proved by the prosecution. Importantly a star witness of this case, namely, Chandrabhal has also not been produced by the prosecution who had claimed to have seen the deceased going with accused-Parag. So far as the confession of the accused persons made in the custody of the police is concerned, the same is not admissible in the background of the bar provided under section 26 of the Indian Evidence Act.
The law with regard to the cases based on circumstantial evidence is now well settled. The leading case on this point is Sharad Birdhichand Sarda vs. State of Maharashtra, reported in [AIR 1984 SC 1622], wherein the Hon'ble Apex Court has provided the following test:
"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."
Hon'ble Apex Court in the case of Shadhu Saran Singh vs. State of Uttar Pradesh and others, reported in [2016 CrLJ 1908) has held that paramount consideration for the court is to do substantial justice but where on the basis of evidence available on record two views are reasonably possible the appellate court cannot substitute its view in place of the view of trial court. It is only when the approach of the trial court in acquitting the accused is found to be clearly erroneous in its appreciation of evidence on record and in deducing conclusions therefrom that the appellate court may interfere with the order of acquittal.
The cumulative effect of the prosecution evidence placed before the court below in this case, in our considered opinion, would certainly not attract the satisfaction which may be termed as proof beyond reasonable doubt. Needless to say that the instant case was purely based on circumstantial evidence as nobody had seen the respondents committing murder of deceased-Shatrohan and it was the duty of the prosecution to prove all the circumstances from which an inference of guilt could be drawn and also it was the duty of prosecution to show and establish that the proved circumstances are of a definite tendency and they unerringly point towards the guilt of the accused persons and these circumstances, if taken cumulatively, form a chain so complete that there is no escape from the conclusion that in all probability the crime has been committed by the respondents alone and by none else and it is also incapable of explanation of any other than hypothesis that of the guilt of the respondents.
Keeping in view the above factual and legal position, we are of considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt.
On a careful perusal of the judgment, it is evident that it is not a case where the view taken by the trial judge is perverse or erroneous. It is to be kept in mind that golden principle of ''proof beyond the reasonable doubt' runs through the Web of the criminal jurisprudence and the accused is entitled to get the benefit of any reasonable doubt which may creep on the surface from the meticulous examination and appreciation of evidence. The criminal trial proceeds with the initial presumption of innocence of the accused persons and this presumption a further fortified with the acquittal of the accused persons. So, in our opinion, very strong and cogent reasons must exist for interfering in the judgment of acquittal.
Keeping in view the aforesaid weaknesses of the prosecution case and having regard to the fact that the prosecution has failed to prove its case beyond reasonable doubt on the settled parameters pertaining to appreciation of evidence with regard to the cases based on circumstantial evidence, we are of the considered view that the view taken by the trial court was a probable and logical view and the judgment of the trial court cannot be said to be erroneous, illegal, illogical and improbable or not based on material on record.
In view of above, we do not find any substance in the appeal preferred by the victim under section 372 of Cr.P.C. and therefore, the same is dismissed at the stage of admission.
The appeal is, thus, dismissed.
Order Date :- 14.2.2020 akhilesh/ [Mohd. Faiz Alam Khan, J.] [D. K. Upadhyaya, J.]