Uttarakhand High Court
State Of Uttarakhand vs Aneesh And Another on 28 October, 2020
Author: N.S. Dhanik
Bench: Ravi Malimath, N.S. Dhanik
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
GOVERNMENT APPEAL NO. 53 OF 2010
State of Uttarakhand ...Appellant.
Vs.
Aneesh and another. ... Respondents
Shri J.S. Virk, learned deputy advocate general for the State / appellant.
Shri Pankaj Kumar Sharma, learned counsel for the respondents.
Reserved on :15.07.2020
Delivered on : October 28, 2020
Coram: Hon'ble Ravi Malimath, A.C.J.
Hon'ble N.S. Dhanik, J.
Hon'ble Ravi Malimath, A.C.J. (Oral) The case of the prosecution is that on 27.09.2008 at 08:30 AM, the complainant-Raees Ahmed lodged a written complaint before Police Station- Kotwali-Roorkee, District Haridwar. He stated that his sons, namely, Saleem and Wasim had purchased two trucks (10 wheelers) a month earlier to the incident from Tata company at Dehradun; both the trucks were not yet registered; the truck which was stolen was having Chasis Nos. 426031 ERZ 010194 Engine No. 80D 6672258 Temporary No. UBPe 0669; both his sons used to sleep in the trucks; in the intervening night of 26/27.09.2008; they were talking to each other till about 02:00 AM; thereafter, both went to sleep in their respective trucks, but in the morning of 27.09.2008 at about 06:00 AM, the local people of village Rahmatpur informed the complainant that the dead-body of his son, namely, Saleem is lying near R.B. Brick Kiln and he has suffered injuries; thereafter, he along with other villagers went there, and saw the dead-body; certain unknown miscreants have murdered his son Saleem and the truck, in which he was sleeping, was also looted by them; on the basis of the complaint, Case Crime No. 415 of 2008 was registered against unknown persons, and investigation was taken up. After completion of the investigation, a charge-sheet was filed before the Court of Additional District and Sessions Judge, Roorkee for offenses punishable under Sections 302 and 394 read with 34 IPC against accused Anees and Akil, and charges were framed against them. They denied the charges and claimed to be tried. In order to prove its case, the prosecution examined PW1 to PW11, and got marked exhibits Ka-1 to Ka-16. The statements of the accused were recorded under Section 313 Cr.P.C. By the impugned judgment, both the accused were acquitted of the charges under Sections 302 and 394 read with 34 IPC. Aggrieved by the impugned judgment, the State has filed this appeal.
2. Shri J.S. Virk, learned deputy advocate general appearing for the appellant, contends that the order passed by the trial Court is erroneous; the trial Court failed to consider the evidence and material on record; the prosecution has proved its case beyond all reasonable doubts; the infirmities of the prosecution have unnecessarily been highlighted by the learned trial Court; the evidence and material, as produced by the prosecution before the trial Court, sufficiently establish the commission of the offense by these two accused; and the trial Court has failed to consider the evidence and material available on record in the right perspective and has, therefore, erroneously acquitted both the accused. Hence, he pleaded that the appeal be allowed by setting aside the judgment and order passed by the trial Court and to convict the accused for the offense charged against them.
3. On the other hand, Shri Pankaj Kumar Sharma, learned counsel appearing for the respondents, disputes the same. He submits that the prosecution has miserably failed to prove its case; various infirmities have been noticed by the trial Court, which affect the root of the case; the prosecution having failed to prove its case beyond reasonable doubt, the trial Judge was justified in acquitting the accused; it was the prosecution which had to prove its case beyond all reasonable doubts; and having failed to do so, the order of acquittal does not call for any interference.
4. Heard learned counsels and examined the records.
25. The entire case of the prosecution rests on circumstantial evidence. PW-1 Shahzad is the scribe of the FIR. He has stated that whatever was told to him by the complainant, namely, PW2 Raees he has written it. Therefore, his evidence will not be of much avail to the prosecution. PW-2 is the complainant and father of the deceased. He has stated that the incident took place in the night of 26/27.09.2008. At about 15 days prior to it, he had purchased two trucks (ten wheelers) from Dehradun and the body of the trucks were constructed at Muzaffarnagar, Uttar Pradesh. Three days prior to the incident, the trucks were parked at Rahmatpur road outside his house. Both his sons, namely, Saleem and Wasim used to stay in the trucks. On the date of the incident, both trucks were parked one behind the other. In the first truck, Wasim was sleeping and in the second truck, Saleem was sleeping. The truck, in which Saleem was sleeping, was looted by miscreants. The truck, in which Saleem was sleeping, was not registered. It was looted by the miscrants. On 26.09.2008 in the morning at about 06:00 AM, he received information that the dead-body of his son Saleem is lying at Rahmatpur road near Brick Kiln. He reached the spot. Thereafter, several other persons also reached there. He saw the dead-body of his son Saleem lying there. There were injuries on his body. He took the body of his son Saleem to Roorkee hospital. He gave the first information report, which was written by his brother-in-law Shahzad, namely, PW-1. The contents were read over to him. Thereafter, he put his thumb- impression. In the cross-examination, it is stated that he himself wrote the complaint; the truck was purchased by him on finance; his brother-in-law and Furkan had accompanied him to purchase the truck; he does not remember at present in whose name the trucks were purchased.
6. The case of the prosecution is belittled by the fact that PW1 has stated that the FIR was registered by him, whereas PW2 states in his cross-examination that he had written the FIR himself. Therefore there is a major contradiction, which has not been explained by the prosecution.
37. According to the prosecution case, the main reason and motive was the purchase of trucks by PW2, namely, Raees Ahmed. However, during the course of investigation, the investigating officer did not collect any evidence to this effect. There is no material on record to show that trucks bearing such chasis number and engine number, etc. were purchased by PW- 2 from Tata Finance having temporary registration number. Furthermore, PW-2 does not remember in whose names the trucks were purchased. Therefore, the evidence of PW-2 becomes very doubtful.
8. PW-3, namely, Khalid has stated that Saleem was murdered and his dead-body was kept in Roorkee Hospital; the police reached there and prepared the inquest report at about 10:00 AM; he was appointed as the inquest witness; and he had signed the inquest report. Nothing worthwhile is elicited in his cross examination to disbelieve him.
9. PW-4, namely, Irshad has stated that in the intervening night of 26/27.09.2008, he, along with PW-5-Imran and one Saleem, were going to Piran Kaliyar from Jwalapur on their motorcycle; when they reached near the brick kiln, on the road, they saw that a truck without registration number was parked there; near the window of the truck, four persons were standing and one person was lying on the road; these four persons were shaking him; near the truck, a gray coloured car was parked; he identified these four persons in the light of the motorcycle; he identified accused Anees and Akil, who were present in the Court, and stated that these two were among the four persons on that day; they did not stay there; and later on, they came to know that out of four persons who were standing near the truck, two persons have committed murder of the truck-owner and looted the truck. He identified his signatures on the test identification memo in terms of exhibit A-3.
10. There are certain discrepancies in his evidence, on the basis of which, he becomes unreliable. There is no explanation as to what the witness and his two companions were doing in 4 the middle of the night on their motorcycle. Further, it was night time and there was no light nearby. He identified four persons in the light of the motorcycle. Such a statement cannot be believed on its face value. Furthermore, it is stated that they did not disclose this fact to anybody in the village that they had seen the accused, and one and a half month after the incident, the investigating officer had recorded his statement and only then, in the cross examination, it was disclosed regarding the same. Therefore, the cross-examination belies the evidence of this witness.
11. According to the prosecution, the accused persons were arrested on 30.11.2008. PW-4 and PW-5 identified the accused forty-five days after the incident. PW-4 stated that he identified the accused persons after five months. The identification parade was done on 17.02.2009, namely, one and a half months after the accused persons were arrested. In the note prepared by the tehsildar on the identification parade memo exhibit 8-A, it is stated that accused Anees and Akil in their statements have stated that the persons who identified them were shown their photographs earlier by the police in the police station; and the villagers were also shown their photographs which were taken from the mobile phone. Therefore, the photographs of the accused having been shown much prior to the test identification parade would render the case of the prosecution to be doubtful. There is no explanation given by PW-4 as to why did he not disclose this important fact of identifying the accused before anybody in the village.
12. PW-5, namely, Imran has stated that on the intervening night of 26/27.09.2008, he, along with PW-4-Irshad and one Saleem, had gone to Jwalapur to take some material; at about 02:30 they were returning on their motorcycle; when they reached on Rahmatpur Kaliyar road near Sabri Brick Kiln, they saw that a truck was parked, four persons were standing, one person, who was injured, was lying on the road, and these four persons were staring at the person lying on the road; near the 5 tuck, one Indica car was also parked; he had seen all the four persons; he has identified the two accused persons present in the Court and stated that these two persons were among those four persons they saw on that day. The cross examination of this witness is on similar lines. There are various contradictions in his cross-examination. It is an admitted fact that Jwalapur is situated at a distance of 20 to 22 kilometers from the place of incident. Therefore, it cannot take three hours to travel the aforesaid distance. Therefore, the evidence of PW-5 becomes very unreliable. There is no indication as to why the witness did not inform anybody until he was examined by the police.
13. PW-6 is the doctor, who conducted the post-mortem on the dead-body of the deceased. He noticed various injuries on the body of the deceased.
14. According to the doctor, the cause of death was ante- mortem injuries, which might have been caused half to one day before the autopsy.
15. PW-7, namely, S.I. Jaikirat Singh Negi was posted as Incharge at police station Kaliyar. He had prepared the inquest report of deceased Saleem at Civil Hospital, Roorkee.
16. PW-8 is the Head Constable Pal Singh Rawat, who was posted as a head moharrir at Police Station Kotwali-Roorkee, District Haridwar and he had prepared the chick of the FIR which is in his handwriting.
17. PW-9 is the SSI, who speaks about the recovery of the weapon; that the accused persons led them to the place where the dead-body of Saleem was recovered; from the nearby bushes, they took out a rusty iron rod; and they disclosed that this is the rod by which they had committed the murder of deceased Saleem when they looted the truck. The recovery memo was marked as exhibit A-11, while iron rod and sealed cloths were marked as exhibits A-1 and 2.
618. PW10 is the S.I. who was the Investigating Officer of the case. During the course of investigation, he recorded the statements of the witnesses, prepared the site-plan of the place from where the dead-body was recovered, etc.
19. PW-11 is the SHO, who took the investigation of the case on 23.10.2008 and he arrested the accused persons on 30.10.2008 and on their pointing out the iron rod, used in the commission of the murder, was recovered and seized. On 17.02.2009, he conducted the test identification parade. Thereafter, he submitted a charge-sheet against the accused persons. Nothing worthwhile has been elicited by this witness.
20. On considering the aforesaid oral and documentary evidence, the trial Court, in our considered view, was justified in acquitting the accused. The key issue, which the prosecution has failed to prove, was the manner in which the murder took place. The prosecution has failed to prove that it was the very accused persons who had committed the murder. The entire case of the prosecution is based on circumstantial evidence. There is no eye-witness to the incident. The evidence of PW-4 and 5 who have said to have seen the accused somewhere in proximity to the time of the offense cannot be accepted. The said witnesses have not stated as to what were they doing at the place of the incident at 02:30 in the night. They could not have identified the accused merely in the light of the motorcycle. They did not disclose this fact to anybody about the incident until they were examined by the police. Either way they have not seen the incident. Furthermore, the prosecution have not examined the brother of the deceased, namely, Wasim who is stated to be along with deceased Saleem till about 02:00 AM in the night, who would have been a very important witness, since he would have narrated the incident, which took place just before the incident. He was not examined by the prosecution. So far as the test identification parade is concerned, the same has not been done in accordance with law. The photographs of the accused persons were shown to the witnesses in the police 7 station much prior to the test identification parade. Therefore, the witnesses were aware of the face of the accused. They have been influenced by showing their photographs in the police station. Moreover, there is a discrepancy with regard to the date on which the test identification parade was conducted. PW-4 has stated that about four-five months after the incident the test identification parade was conducted whereas as per the noting in the test identification parade, it was conducted about one and a half months after the incident. Therefore, the test identification parade would not be of much avail to the prosecution.
21. Under these circumstances, we are of the considered view that the trial Court was justified in acquitting the accused persons of the charges under Sections 394 and 302 read with 34 of IPC. The prosecution has failed to prove its case beyond all reasonable doubts. The entire case of the prosecution is based on circumstantial evidence. The failure of the prosecution to explain every link in its case has, therefore, led to the acquittal of the accused. Even if the entire case of the prosecution is to be accepted, the prosecution has failed to show that the deceased succumbed to the injuries as a result of the assault by the accused. There is no material to link the accused with the injuries sustained. Some efforts should have been made by the prosecution to establish this link.
22. This appeal is filed by the State against the order of acquittal. The Hon'ble Supreme Court have, time and again held, in a variety of judgments, the manner in which an appeal against acquittal should be considered. That only because a second view is possible, would not entail the appellate Court to take a view different from that taken by the trial Court. Moreover, we are of the considered view, that the appreciation of evidence and the material on record by the trial Court, is a possible view that could be taken in the given facts and circumstance of the case. We do not find any perversity in the appreciation of the evidence and material available on record by 8 the trial Court. There is no perversity in the appreciation of the evidence or the conclusion arrived at by the trial Court, nor do we find it expedient to take a view different from that taken by the trial Court.
23. For all the aforesaid reasons, we do not find any ground to allow this appeal. Consequently, the appeal, being devoid of merit, is dismissed.
(N.S. Dhanik, J.) (Ravi Malimath)
A.C.J.
28.10.2020
PSR
9