Allahabad High Court
State Of U.P. vs Pappu @ Mohd. Furkan & 5 Ors. on 14 October, 2019
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 CR.P.C. No. - 144 of 2019 Applicant :- State of U.P. Opposite Party :- Pappu @ Mohd. Furkan & 5 Ors. Counsel for Applicant :- G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned A.G.A. for the State and perused the record of the trial Court.
By means of instant application moved under Section 378 (3) of the Cr.P.C., the State has requested to grant leave to appeal against the impugned judgment and order dated 16.05.2019 passed by learned learned Additional Sessions Judge, Court No. 7, Unnao in Sessions Trial No. 140 of 2013, " State vs. Pappu @ Mohd. Furkan and others", arising out of Case Crime No. 640 of 2012, under Sections 147, 148/34 and 302 of I.P.C., Police Station Bangarmau, District Unnao, whereby all accused persons/respondents have been acquitted by the trial Court of all the charges framed against them.
The prosecution case in nutshell is that informant Abu Talib lodged an FIR stating therein that his sister is married in ''Kasba' Ganj Moradabad, Police Station Bangarmau, District Unnao. His son Siraj used to go there and on 11.11.2012 at 6:00 pm., in the evening, his son received a phone call on his mobile phone and replied that he is coming after changing his clothes. He asked his son as to where he was going to which he replied that he is going to ''Ganj Moradabad' to the house of his ''Bua' and will return in the morning.
On 12.11.2012 at about 4:00 am. police of Ganj Moradabad informed him from the mobile phone of his son Siraj that his son had been done to death. He immediately went there and his maternal nephew Nadeem informed him that Siraj met him at 7:30 pm. at ''Ramleela Maidan' and told him that he is having other companions and will return on his own.
Postmortem of the body of deceased was performed on 12.11.2012 at 4:45 pm., wherein 05 lacerated wounds were found on the face and head of the deceased. His parietal and frontal bones were also found fractured. Membrances and brain was lacerated and his death was caused due to antemortem injuries about 06 hour before the postmortem.
During investigation these facts came to light that Siraj Khan was having an affair with the sister-in-law (Sali) of respondent Shakeel Ahmad and used to go to her house to meet her which had brought disrepute to Shakeel and on the basis of this enmity respondents have murdered him by assaulting him from ''lathi, danda and tabal' in the night of 11/12.11.2012 and had thrown his body on the road.
Apart from the documentary evidence, prosecution testified P.W.-1/Abu Talib, P.W.-2/Abu Tahir, P.W.-3/Constable Chandrapal, P.W.-4/Dr. A.K. Saini, P.W.-5/Shaukat Ali and P.W.-6/Investigating Officer Anjani Kumar Rai.
Trial Court after appreciating the evidence available on record acquitted all accused persons/respondents of all the charges framed against them.
Aggrieved by the judgment and order of the trial Court, the State has filed instant appeal along with an application for grant of leave to appeal.
Learned A.G.A. while pressing the application for grant of leave to appeal submits that the Court below has committed material illegality in appreciating the evidence on record and has acquitted the respondents on the basis of ''surmises and conjectures'.
It is further submitted that the trial Court has ignored this fact that on the pointing of some of the accused persons weapon of assault was also recovered and also that non production of one of the witnesses namely Km. Mahjabin, the whole prosecution case could not be treated as demolished.
He further submits that the Court below has not appreciated the evidence available on record in right perspective and has acquitted the respondents illegally and, therefore, leave may be granted to file instant appeal in order to challenge the judgment and order of the trial Court.
Having heard learned A.G.A. for the State and having perused the record of the trial Court, we find that the trial Court has recorded following reasons/findings for acquitting respondents:-
I. The case was based on circumstantial evidence and from the evidence of two witnesses of prosecution namely P.W.-1/Abu Talib and P.W.-2/Abu Tahir, there is neither any evidence of last seen of deceased with accused persons nor the chain of circumstances is complete.
II. P.W.-2/Abu Tahir though in his statement has stated that he over heard conversation of accused persons to the tune that one person from Mallavan came to Ganj Moradabad to meet his sister and they will eliminate him, but he did not disclose this fact to the informant nor he lodged the named FIR.
III. Sister of P.W.-2/Abu Tahir namely Smt. Asma was not produced as a witness to prove the fact that P.W.-2/Abu Tahir actually went to Ganj Moradabad on 11.11.2012.
IV. There is only evidence of P.W.-2/Abu Tahir and P.W.-5/Shaukat Ali about over hearing a conversation of accused persons that they will eliminate someone and apart from that there is no other evidence of any kind, which may relate the accused persons to the crime.
V. P.W.-5/Shaukat Ali has also narrated the fact of over hearing the conversation of accused persons and that after the murder of Siraj, he became sure that Siraj had been done to death by these accused persons.
VI. The evidence of P.W.-2/Abu Tahir and P.W.-5/Shaukat Ali is only about the apprehension they were having and they have neither seen any occurrence/incident nor have seen the deceased with accused persons and doubt howsoever grave cannot take the place of proof.
VII. The prosecution has failed to prove its case on the settled parameters of appreciation of evidence pertaining to cases based on circumstantial evidence.
(VIII) Accused persons/respondents were not named in the FIR and till 09.12.2012 the investigation was against unknown persons and name of respondents were brought to light on the basis of statements of Km. Mahjabin, Shabbu @ Shadab Alam, Abu Tahir, Abu Tahid and Shaukat Ali, out of which Mahjabin has been discharged and Shabbu was not produced as a witness.
Having perused the record of the trial Court in the background of the submissions made by the learned A.G.A., we are of the considered view that the only fact which has been emphasized by the two prosecution witnesses namely P.W.-2/Abu Tahir and P.W.-5/Shaukat Ali is that they over heard a conversation of accused persons pertaining to the fact that they will eliminate some person who is coming from Village Mallavan and, thereafter, there is no evidence available on record which may connect the accused persons/respondents with the crime. The law is well-settled with regard to the fact that the confessions recorded by the police officers, while the accused is in their custody could not be proved against accused persons.
The fact that certain weapons were recovered at the instance of respondents alone could not establish that the crime was committed by the respondents, moreso, when there is no reliable evidence even to prove this fact that the alleged recovery of the weapons has been actually affected at the instance of the respondents.
Instant case was based purely on circumstantial evidence as none has seen anyone committing the crime. The law with regard to the appreciation of evidence pertaining to cases based on circumstantial evidence is well-settled.
Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 has laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
"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 the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh and Others reported in 2016 CrL. J. 1908 has held that the paramount consideration of the Court is to do substantial justice and where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in place of that of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.
In State of Maharashtra vs. Sujay Mangesh Poyarekar MANU/SC/8073/2008 Hon'ble Supreme Court has held that in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind and consider whether prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. In such cases, the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed.
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 against respondent and it cannot be said that the view taken by the Trial Judge is perverse or unreasonable. The Judgment of the Trial Court could not be said to be illegal or objectionable and keeping in view the material on record deeper scrutiny or re-appreciation, review or reconsideration of evidence is not warranted. Per contra the view taken by the trial Court is a possible view and the judgment is otherwise well reasoned and well discussed.
There is initial presumption of innocence in favour of every accused person of a crime. This initial presumption of innocence stands fortified with the acquittal of the accused person(s). So, very strong and cogent reasons are required for interfering in the judgment of acquittal. Keeping in view the aforesaid inherent weaknesses of the prosecution case, we are of the considered view that the view taken by the trial court is a probable and logical view and the judgment of the trial court cannot be said to be not based on material on record or illegal or illogical or improbable. Therefore, we are satisfied that there is absolutely no hope of success in this appeal and accordingly, no interference in the judgment of the trial Court is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application to grant leave to file appeal is dismissed.
Since application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.) Order Date:- 14.10.2019/Praveen