Uttarakhand High Court
Unknown vs Satish Alias Mintu Chaudhary And ... on 22 February, 2021
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
GOVERNMENT APPEAL NO.53 OF 2020
22ND FEBRUARY, 2021
Between:
State of Uttarakhand ....Appellant
and
1. Rohit Chaudhary @ Baail, S/o Sukha Singh,
R/o Kazi Bagh Vijay Nagar, Nai Basti, Kashipur, District
Udham Singh Nagar.
2. Ateeq Ahmad, S/o Abdul Rasheed,
R/o Vijay Nagar, Nai Basti, Kashipur, District Udham
Singh Nagar.
3. Himanshu Chaudhary, S/o Chandrapal Singh,
R/o Near Kazi Bagh Temple Kashipur
4. Harjinder @ Lali, S/o Harbhajan Singh,
R/o Jaspur Khurd, Kashipur, District Udham Singh Nagar.
......Respondents
Counsel for the appellant : Mr. J.S. Virk, learned Deputy
Advocate General for the
State/appellant.
2
Counsel for the respondents : Mr. D.C.S. Rawat with Mr.
Tajhar Qayyum.
The Court made the following :
JUDGMENT :(per Hon'ble Sri Justice Alok Kumar Verma) This Government appeal is directed against the judgment and order dated 19.12.2019 passed by the learned Ist Additional Sessions Judge, Kashipur, District Udham Singh Nagar in Sessions Trial No.35 of 2015, "State vs. Satish alias Mintu Chaudhary and others", whereby the learned trial court acquitted the respondent no.1-accused from the offence punishable under Section 302 read with Section 34 of IPC, acquitted the respondent nos.2 and 3, accused persons from the offence punishable under Section 302 read with Section 34 and Section 404 of IPC and acquitted the respondent no.4-accused from the offence punishable under Section 212 of IPC.
2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that on 17.06.2014, the informant, Anoop Agarwal, (PW-1), lodged an FIR at Police Station Kashipur with the allegations that at about 10.30 pm on 17.06.2014, when his cousin Arpit Kumar Agarwal, deceased, was coming towards his house on his vehicle Swift Car, some unknown persons had shot him in front of the house of Anil Mittal. Thereafter, Arpit Kumar Agarwal was taken to the Jeevan Rekha Hospital, where he was declared dead.
33. On the basis of written information, (Ext.Ka-1), the FIR was registered under Section 302 of IPC. The inquest proceeding and post-mortem of the dead body of the deceased were conducted on 18.06.2014. After completion of the investigation, the respondents-accused persons were charge-sheeted along with the co-accused persons Satish alias Mintu Chaudhary and Rajesh Kamboj.
4. The charges were framed. The accused persons denied the charges and claimed to be tried.
5. During trial, the case abated against the co- accused Satish alias Mintu Chaudhary, and co-accused Rajesh Kamboj due to their death.
6. In order to bring home the guilt of the accused persons, the prosecution examined as many as nine witnesses.
7. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein they denied the entire evidence of the prosecution.
8. The learned trial court heard arguments, appreciated the evidence, and held that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubt.
49. Heard the learned counsel for both the parties.
10. Mr. J.S. Virk, the learned Deputy Advocate General for the State, submitted that the learned trial court has completely overlooked the glairing facts of the case according to which, the involvement of the accused persons has been proven. The evidences adduced on behalf of the prosecution are trustworthy, which are enough to establish the involvement of the respondents-accused persons in the commission of the crime; the respondents-accused persons confessed their guilt; the recoveries, at the instance the respondents, are also proved; the guilt of the respondents- accused persons are fully proved. Therefore, the judgment of acquittal is not justified in the eyes of law.
11. On the other hand, Mr. D.C.S. Rawat, Advocate with Mr. Tajhar Qayyum, Advocate for the respondent Nos. 1 to 3 supported the impugned judgment.
12. The law is well settled that the order of acquittal strengthen the presumption of the innocence of the accused. It is equally the duty of the Court to see that the guilty do not escape punishment. Therefore, we have carefully assessed the evidences adduced by the prosecution.
13. Mr. Anoop Kumar Agarwal, (PW-1), the informant, has deposed that on 17.06.2014, when his cousin Arpit 5 Kumar was coming towards his house in his Swift Car, some unknown persons had shot him in front of the house of Anil Mittal. After receiving this information, the deceased was taken to the hospital. This witness has proved his written report, (Ext.Ka.-1).
14. Mr. Ramesh Chandra Pandey, (PW-2) stated that on 18.06.2014, simple and blood stained earth were taken by the police from the spot. He further stated that on the same day, a white Swift Car was taken by the police, which was standing in front of the house of Anil Mittal.
15. Dr. K.K. Sharma, (PW-3) conducted the Post- Mortem Examination of the dead body of the deceased on 18.06.2014. According to the autopsy report, (Ext.Ka-5), two anti-mortem injuries were found; the deceased, aged about 30 years, had died due to anti-mortem fire-arm injuries. He proved the Post-Mortem Report (Ext.Ka-5). According to this witness, a bullet was recovered from the body of the deceased.
16. Mr. B.S. Chauhan, (PW-4), Circle Officer of the Police, was one of the Investigating Officers. He proved the site plan, (Ext. Ka-6). He stated that on 20.06.2014, the accused Rohit Chaudhary, co-accused Satish @ Mintu and Rajesh Kamboj were arrested; after arrest, these accused persons confessed their guilt. He further stated that on the pointing out of the accused Rohit Chaudhary, a pant, a shirt, the key of the said Swift Car and a motorcycle were 6 recovered. He further stated that the accused Harjinder was arrested on 20.06.2014, who confessed his guilt. The accused, Ateeq Ahmad and Himanshu Chaudhary, were arrested on 24.06.2016. These accused persons confessed their guilt. He stated that on the pointing out of the accused Himanshu Chaudhary and Ateeq Ahmad, a mobile phone and the purse of the deceased were recovered.
17. Constable Mr. Mahesh Chandra Singh Khetwal, (PW-5) is the scriber of the FIR (Ext. Ka-26).
18. Mr. Jitendra Kumar Gupta, (PW-6) is the witness of the inquest proceedings.
19. According to Mr. Dhirendra Kumar, (PW-7), Inspector, he arrested the accused Satish alias Mintu and the accused Rohit Chaudhary. And recovered a Pistol of 32 bore, and four live cartridges; 32 bore Pistol was recovered from the accused Satish alias Mintu and a Tamancha 315 bore and two live cartridges of 315 bore were recovered from the possession of the accused Rohit Chaudhary.
20. Mr. Jasveer Singh Pundir, (PW-8), the Investigating Officer, has submitted charge-sheet, (Ext. Ka-
29).
21. Mr. Kundan Singh Adhikari, (PW-9) investigated this matter after the investigation by Mr. B.S. Chauhan, (PW-4).
722. The present case rests on circumstantial evidence and when a case rests on circumstantial evidence, such evidence must satisfy these tests:
(i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, it should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature.
(iv) There must be a chain of evidence to show 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 probabilities, the act must have been done by the accused.
23. The principle of circumstantial evidence has been reiterated by the Hon'ble Supreme Court in a plethora of cases. In C. Chenga Reddy vs. State of A.P., (1996) 10 SCC 19 3, the Hon'ble Supreme Court observed, "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
8Further, the proved circumstances, must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." The same principles were reiterated by the Hon'ble Supreme Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, Mohd. Arif alias Ashfaq vs. State (N.C.T. of Delhi), (2011) 13 SCC 621, Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and a number of other decisions.
24. The instant case of the prosecution is based on the confessions of the accused persons and the said recoveries.
25. According to the prosecution, the respondents- accused persons confessed their guilt and after the said confessions the said recoveries were made. The confessions made to a police officer is inadmissible under Section 25 of the Indian Evidence Act. Mr. Dhirendra Kumar, (PW-7) stated in his cross-examination that the police party tried to associate public witnesses. But, the names of the persons, who refused to be a witness, had not been recorded. In Satpal vs. State of Haryana, 2018 (2) CCSC 1104 (SC), the Hon'ble Supreme Court held that any recovery on the basis of confession, under Section 27 of the Indian Evidence Act, cannot form the basis for conviction.
26. In invoking the provisions of Section 27 of the Indian Evidence Act, the Court should be very vigilant to ensure the credibility of the evidence. The statements of the 9 witnesses of prosecution regarding the said recoveries do not inspire confidence.
27. During arguments, learned counsel for the appellant fairly conceded that in this matter, motive is absent. He also conceded that the bullet, recovered from the body of the deceased, was not sent to the Forensic Science Laboratory. On a close scrutiny of these circumstances, the discrepancies are found comparatively of a major character and go to the root of the prosecution case.
28. Although, there were found injuries of the fire-arm on the dead body of the deceased and the death of the deceased was homicide, the prosecution has to prove that the death of the deceased was caused by the respondents and in all human probabilities, the act must have been done by the respondents-accused persons only. Even grave suspicion cannot take place of proof. There is nothing positive evidence placed on record against the respondents- accused persons by the prosecution to prove its case against them.
29. On a detailed examination and scrutiny of the evidence of the prosecution, this Court upholds the view taken by the learned trial court. In our considered view, the prosecution has failed to establish the commission of the alleged offence by the respondents-accused persons beyond all reasonable doubt. They deserve benefit of doubt. We are, therefore, in complete agreement with the view taken by the 10 learned trial court; we see no reason to interfere with the judgment and order impugned herein.
30. As a result, the instant appeal is liable to be dismissed. The appeal is dismissed accordingly.
31. The respondents are directed to make compliance of Section 437-A of the Code of Criminal Procedure, 1973 within three weeks from the date of this order by appearing before the court concerned and execute a personal bond and two reliable sureties, each in the like amount to the satisfaction of the court concerned, which shall be effective for a period of six months.
32. Let a copy of this order be sent to the concerned court for intimation and compliance.
____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.
_______________________ ALOK KUMAR VERMA, J.
Dt: 22nd February, 2021 JKJ/Neha